CAMBODIA'S LONG-AWAITED PENAL CODE UNDER REVIEW

UNCLAS SECTION 01 OF 02 PHNOM PENH 000746 SENSITIVE SIPDIS STATE FOR EAP/MLS E.O. 12958: N/A TAGS: PGOV PHUM PREL KJUS CB SUBJECT: CAMBODIA'S LONG-AWAITED PENAL CODE UNDER REVIEW REF: A. PHNOM PENH 745 ¶B. PHNOM PENH 575 SENSITIVE BUT UNCLASSIFIED ¶1. (SBU) SUMMARY: The National Assembly approved the general content of the 672-article Penal Code on October 1, paving the way for chapter-by-chapter debate which is expected to take two weeks. The Cambodian People's Party (CPP) majority denied opposition Sam Rainsy Party's (SRP) initial request to amend several articles to provide more clarity on the definition of and punishment for some offenses, including defamation and incitement. Given that CPP officials have predicted a swift approval process, the focus will soon shift to proper implementation of this law, and future passage of the often-connected Anti-Corruption Law. END SUMMARY. ¶2. (U) The National Assembly resumed its session Oct 1 following a three month recess and opened debate on the draft Penal Code, approved by the Council of Ministers in June. The draft Penal Code, created with technical assistance from French legal experts and based on accepted international legal templates, is intended to replace the sparse 1992 law passed by the United Nations Transitional Authority in Cambodia (UNTAC) and its progeny. During the opening session, twelve lawmakers from the SRP made an initial call for amendments to 43 of 672 articles, but CPP parliamentarians opposed the proposed amendments on the grounds that they were inconsistent with parliamentary regulations for general debate. DEFAMATION AND OTHER CONCERNS -------------- ¶3. (SBU) Opposition parliamentarians, local and international NGOs, and other observers have stated that the draft is an improvement over the current law, but remain concerned about what some see as excessive restriction on freedom of expression. Significantly, it appears that the existing crime of "disinformation" -- charged in several recent cases (Ref A) -- no longer exists. But several articles make both defamation and insult a crime, reversing a 2006 statement by Prime Minister Hun Sen that defamation would be excluded from the new law. Observers worry that the definition of defamation and insult is overly broad and could be easily abused if not implemented properly. According to the United Nations Office of the High Commissioner for Human Rights (UNHCHR),the draft Penal Code has the potential to be more restrictive of freedom of expression than the old UNTAC criminal provisions and includes a number of new crimes, such as "falsification of information," "public insult," "slanderous denunciation," "insult and resistance to public officials," "publication of any commentaries to put pressure on the judiciary," and "discrediting the court decision.8 Some articles make it a crime to publicly insult the king and judges, and still others criminalize both incitement of insurrection, as well as promoting a gathering of those likely to be involved in insurrection. The UNHCHR and human rights NGOs such as Article 19 recommend that the defamation rules should be eliminated or fully decriminalized, special protection for the King and judges should be removed, and privacy rules should be civil rather than criminal. ¶4. (SBU) SRP challenged several such articles during the chapter-by-chapter debate period which began Oct 2, and which is expected to take two weeks. To date, its challenges have been dismissed. Articles related to defamation, insult and exaggeration of information were passed by a vote of 82-21 October 5. A Ministry of Justice official explained to the Assembly that the "limitations on the rights of citizens" in the new penal code are necessary to "respect one another and ensure social security, public order and the dignity of all members of society." He emphasized that the new defamation penalties have been reduced in comparison to the 1992 UNTAC codes. ¶5. (SBU) Anti-Trafficking in Persons (TIP) organizations have also expressed concern regarding elements of the draft Penal Code that relate to the provisions on procurement of prostitution. The 2008 Law on the Suppression of Human Trafficking and Sexual Exploitation prescribes prison penalties for all types of procurement offenses. Articles 284-293 of the draft Penal Code add financial penalties to these potential punishments. One of the general fundamentals of the draft Penal Code (Article 97) states that, where an offense is punished concurrently with a prison term and a fine, the court may pronounce a ruling of either a prison term and a fine concurrently, a penalty for a prison term only, or a fine only. The effect of this article is that the court may impose a fine instead of a prison sentence in some PHNOM PENH 00000746 002 OF 002 cases where both are possible, which could reduce the deterrent for perpetrators of trafficking offenses if interpreted in such a fashion. ¶6. (SBU) Although many provisions remain open to broad interpretation, such as Article 305 Public Defamation which includes the confusing concept of "bad faith," others are quite explicit and have been welcomed by critics. Article 306 Defamation Via Media clearly states that "defamation committed by means of media is subject to the provisions of the press law." According to the supporting paragraph, written media as well as broadcast media will have the same level of protection. The 1995 Press Law is a civil law which protects journalists' freedom of expression and opinion. Defamatory reporting in the media will therefore be considered only a civil action rather than criminal once the Penal Code is enacted. Media is currently subject to both the UNTAC Criminal provisions and the Press Law, with the criminal charges prevailing in many cases such as that of Hang Chakra (Refs A & B). That is set to change. PAVING THE WAY FOR ANTI-CORRUPTION LAW -------------- ¶7. (SBU) Officials have long stated that passage of a new Penal Code was a prerequisite to the heavily anticipated Anti-Corruption Law, which donors have insisted on and the government has promised for more than ten years. Minister of Justice Ang Vong Vathana noted that the draft Penal Code also covers corruption committed by civil servants and court officers. The Secretary General of the Council for Legal and Judicial Reform (CLJR) indicated at an October 5 Technical Working Group (TWG) that the Anti-Corruption Law will be the next priority after the Penal Code is passed. He further stated that the draft Anti-Corruption Law is expected to be submitted to the National Assembly by the end of the year, with passage in early 2010. Development partners at the TWG registered disappointment that the draft Penal Code in its final form was not circulated for comment before being sent to the National Assembly and asked for the opportunity to comment on the draft Anti-Corruption Law, which has not been made available since 2006. The Secretary General subsequently agreed to send the draft law to all members of the TWG. COMMENT -------------- ¶8. (SBU) A new penal code to replace the UNTAC-era legislation has been in various stages of draft since 1994. Cambodia currently prosecutes crimes under a confused mixture of old laws and the UNTAC codes, which were always meant to be transitional. The majority of stakeholders agree that the latest draft Penal Code, which was prepared with substantial assistance from French legal experts, is a significant improvement over the current system in several respects. But in Cambodia, passage of a new law -- however welcome -- is only the first step. The focus of the government must now turn to proper implementation of the law to assure critics and others that the international standards reflected in the law are realized in practice. ALLEGRA