VZCZCXRO5087
PP RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #0746/01 2810551
ZNR UUUUU ZZH
P 080551Z OCT 09
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC PRIORITY 1250
INFO RUCNASE/ASEAN MEMBER COLLECTIVE

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