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INFO RUEHZS/ASEAN COLLECTIVE

UNCLAS SECTION 01 OF 02 PHNOM PENH 001643 
 
SIPDIS 
 
SIPDIS 
SENSITIVE 
 
FOR EAP/MLS and EAP/RSP 
 
E.O. 12958: N/A 
TAGS: PHUM PREL CB KJUS
SUBJECT: DISINFORMATION/INCITEMENT LAWS:  NEW TOOLS TO SUPPRESS 
GOVERNMENT CRITICS? 
 
Reftel:  Phnom Penh 1086 
 
¶1.  (U)  Summary:  The government's legal means to suppress 
criticism has not been eliminated despite the partial 
decriminalization of defamation.  Three recent cases, including 
those of two journalists and a former professor, illustrate that 
disinformation and incitement laws may be the new tools of choice to 
silence critics.  Observers agree that decriminalization of 
defamation is not a panacea for ensuring freedom of expression; 
judicial independence and the respect for the rule of law are keys. 
End Summary. 
 
Journalists, Professor Under Fire 
--------------------------------- 
 
¶2.  (U)  On July 13, the prosecutor of the Phnom Penh Municipal 
Court charged Mr. Dam Sith, editor a pro-opposition newspaper 
Monakseka Khmer ("Khmer Conscience"), with disinformation, based on 
article 62 of the transitional Criminal Law (the UNTAC Law).  The 
trail is scheduled for September 15.  If found guilty, Dam Sith is 
liable for punishment of six months to three years in jail and a 
fine of one million to ten million riels (about USD 250-2,500).  The 
government's lawyer filed a lawsuit against the editor following a 
May 13 article accusing Deputy Prime Minister Sok An of corruption. 
The prosecutor asked to see the information on which the article was 
based.  The editor refused based on Article 2 of the Cambodian Press 
Law (1995) that allows the press to maintain confidentiality of its 
sources.  Dam Sith has said he will respond to the court summons to 
appear in court on September 15, but is worried that he will be 
convicted due to political influence.  Dam Sith's lawyer, Som 
Chamdina, noted that the court should apply the Press Law of 1995, 
and allow Dam Sith to publish an apology (which Dam Sith has offered 
to do) as allowed for under the Press Law. 
 
¶3.  (U)  Incitement charges have also been used to silence critics, 
and were used against radio journalist Mam Sonando in October 2005 
when the RGC accused Sonando of incitement in conjunction with the 
Cambodia-Vietnam border agreement.  The most recent case occurred in 
early June 2006, when a journalist was arrested in relation to Tonle 
Bassac community-related violence (reftel).  The journalist, Hem 
Chhoun, was charged with incitement and destruction of public 
property and is still in jail awaiting trial. 
 
Latest Arrest on Disinformation Charges 
--------------------------------------- 
 
¶4.  (U)  Tieng Narith, a former 30-year-old lecturer of the Sihanouk 
Raja Buddhist University, was brought before an investigating judge 
at the Phnom Penh Municipal court on September 6 following his 
arrest on September 5.  Investigating Judge Sao Meach charged Narith 
with disinformation and ordered him to be detained while awaiting 
trial.  Two lawyers, So In from the Cambodian Center for Human 
Rights (CHHR) and Hong Kim Suon from the Cambodian Defender Project 
(CDP), defended Narith.  Both lawyers complained that Narith was 
arrested without a warrant. 
 
¶5.  (U)  So In said Narith was charged with disinformation under 
Article 62 of the Transitional Criminal UNTAC law.  If found guilty, 
he could be jailed from six months to seven years and fined up to 
ten million riels (roughly USD 2,500) or either of the two 
penalties.  So In added that Narith may not be mentally competent to 
stand trial. 
 
¶6.  (U)  Stating that the investigating judge denied bail for 
Narith, CDP's lawyer said he would file an appeal.  At the end of 
the court hearing, military police pushed Narith quickly into a car, 
preventing him from talking to family members or reporters.  Members 
of the military police said Narith was detained at their 
headquarters prior to sending him Prey Sar Prison. 
 
¶7.  (SBU)  It is unclear why Narith was charged, but his family 
speculated that the arrest is connected with Narith's unpublished 
book, in which he wrote about several high-profile 
politically-related crimes  including the 1997 grenade attack 
against the Sam Rainsy Party, as well as the death of famous film 
actress Pisith Pilika.  Narith's father said his son's that his 
son's mental state is not normal.  Tieng Narith was fired from his 
job at the University on August 22, three months after first 
introducing his political philosophy students to his book.  The 
prison recently sent him to a local hospital for a mental 
examination. 
 
Incitement, Disinformation and Defamation 
----------------------------------------- 
¶8.  (U)  Incitement is codified in Articles 59, 60, and 61 of UNTAC 
law.  Article 59 states that speech directly causing someone to 
commit a felony is incitement.  Article 60 is broader and states 
that speech that directly causes someone to attempt to commit a 
felony or misdemeanor is incitement.  Article 61 states that speech 
 
PHNOM PENH 00001643  002 OF 002 
 
 
directly causing racial, national, or religious hatred is 
incitement.  However, none of the three articles takes a person's 
intent into account nor the veracity of what is said.  Incitement is 
punishable by imprisonment of one month to one year, a fine of one 
million to ten million riels (USD 250-2,500), or both. 
¶9.  (U)  Article 62 of UNTAC law describes the disinformation law in 
Cambodia, which refers to the publication of false information with 
malicious intent that is likely to disturb the public peace. 
Punishment can be six months to three years in prison, a fine of one 
million to ten million riels, or both. 
¶10.  (U)  Article 63 on Defamation and Libel was amended by the 
National Assembly, which partially decriminalized the law by 
eliminating any jail term to the sentencing.  Removing prison 
sentences from defamation charge is a welcome, positive step. 
However, defamation remains a criminal offense, and people are still 
subject to criminal fines.  This poses a lingering threat to 
critics, as, under Cambodian law, failure to fulfill financial 
penalties warrants imprisonment.  (Note:  A writer based in 
Australia, Julio Jeldress, will be tried in absentia on September 15 
for defamation stemming from remarks critical of PM Hun Sen that 
were published by the Cambodia Daily newspaper in 2005.  End Note.) 
 
Local and International NGO Opinion 
----------------------------------- 
 
¶11.  (SBU)  By decriminalizing defamation, some in the human rights' 
community have raised concerns that the government is using 
disinformation and incitement -- both which carry longer prison 
terms and fines compared to defamation -- to suppress criticism. 
The UN Office for Human Rights director Margo Picken has noticed 
that the use of incitement charges has become a pattern, but she has 
yet to see disinformation charges used systematically.  She added 
that disinformation requires a higher standard of proof for 
conviction.  More disturbing though under Cambodian law is that an 
investigating judge can place the accused in jail for up to six 
months before a case goes to trial.  She has observed cases where 
the accused was put in prison and charges were dropped just before 
the six months ended. 
 
¶12.  (SBU)  Sok Sam Oeun, Executive Director of Cambodian Defenders 
Projects (CDP) noted that decriminalization of defamation alone is 
not sufficient to guarantee freedom of expression.  Judicial reform 
and the independence of the judiciary is the key.  Without an 
independent judiciary, judicial officials will still be subject to 
executive interference, and the ensuing misinterpretation of the law 
should be expected. 
 
¶13.  (SBU)  Kek Galabru of NGO LICADHO commented that article 63 on 
defamation as well as other related articles should be 
decriminalized completely.  She agrees that political will is the 
important determinant.  The government can always interpret the law 
to meet their ends, when they are not committed to allow critics to 
express their opinions. 
 
¶14.  (SBU)  Herb Bowman of East West Management Institute (EWMI) 
notes that criminalizing or decriminalizing of law is not the point. 
 He believes what is important is the law's application and the 
respect for the rule of law.  He said that in Western countries, 
disinformation, and incitement, and in some cases, defamation are 
standard parts of the legal code.  But in these countries the 
government does not abuse these legal clauses to silence critics. 
 
Comment 
------- 
 
¶15.  (SBU)  These instances of applying disinformation and 
incitement charges to critics of the government suggest that while 
the international community made headway against defamation when it 
was a high-profile issue last year, there remain other legal tools 
at the RGC's disposal.  These cases, coupled with the National 
Assembly's recent passage of legislation to restrict MPs' speech 
under certain conditions, indicate that the RGC remains sensitive to 
criticism and derogatory information about high-level RGC 
officials. 
 
Mussomeli