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CAMBODIA: Unlawful arrest of a newspaper editor in Phnom Penh

June 11, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-134-2008

11 June 2008
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CAMBODIA: Unlawful arrest of a newspaper editor in Phnom Penh

ISSUES:  Freedom of expression and information; administration of justice
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Dear friends,

The Asian Human Rights Commission (AHRC) is deeply concerned that Dam Sith, the editor of Moneaksekar Khmer newspaper, was arrested on charges of alleged defamation, insult and disinformation on 8 June 2008. Dam has been facing a criminal lawsuit after his newspaper published an opposition politician's remarks about the Khmer Rouge affiliation of a government minister in April 2008.

CASE DETAILS: (Sources: Ms Meas Chan Kanha, Dam Sith's wife; Pech Norak, Moneaksekar Khmer Newspaper; Chou Chung Ngy, Dam Sith's defence lawyer)

On Sunday, 8 June 2008 at around 11:30am 10 military police officers, some in uniform and the others in plain clothes, arrested Dam Sith, 39, editor of the Moneaksekar Khmer (Khmer Conscience) newspaper, at a car wash named Meas Sitha, in Tuol Sanke commune, Tuol Kok district, in Phnom Penh. Dam was taken to the Military Police Headquarters in Tuol Kok for questioning. At around 3pm he was brought before the Municipal Court of Phnom Penh.

In court, after questioning Dam in the presence of his lawyer late that afternoon, the investigating judge, Chhay Kong, issued an order to remand him in custody at Prey Sar prison on the outskirts of Phnom Penh for pre-trail detention. The judge's reasons for Dam's pre-trial detention were (1) to prevent any harassment of witnesses or victims or prevent any agreement between him and any accomplice; and (2) to guarantee his appearance in court. He was charged with alleged defamation, insult and disinformation.

Dam's arrest followed a criminal lawsuit against him filed on 25 April by Hor Nam Hong, current Cambodian Foreign Minister following his newspaper's publication, in its 18 April 2008 issue, of the remarks made by Sam Rainsy, leader of the opposition Sam Rainsy Party (SRP) about the Khmer Rouge affiliation of two current government ministers. Sam had made these remarks the day before at a religious ceremony commemorating the death of nearly two million people under Pol Pot's Khmer Rouge regime between 1975 and 1979. Dam's newspaper subsequently published stories related to the same remarks and a criminal lawsuit filed by a concerned minister against Sam.

In its 18 April issue, Moneaksekar Khmer wrote, among other things, that  "Mr. Sam Rainsy said further that there are at least a senior minister and a deputy prime minister of the current ruling party who used to be Pol Pot's secretary and advisor-interpreter. Mr. Sam Rainsy added that now Pol Pot's advisor and secretary, Mr. Keat Chhun, is (current) senior minister of economics and finance, and another person, Mr. Hor Nam Hong, (current) deputy prime minister and minister of foreign affairs, used to be head of (Khmer Rouge) Boeung Trabek prison (in Phnom Penh). Being head of Boeung Trabek prison, he (Sam Rainsy) continued, was not just by chance. It required the appointment by the Khmer Rouge to be head of Boeung Trabeck prison as the head of that prison had a lot of power. That was why they (people in the government) did not want the trial of those Khmer Rouge leaders (alluding to the government's repeated delays in organising that trial). They feared Khieu Samphan (a Khmer Rouge leader now awaiting trial) would denounce them. That was why they let the aged Khmer Rouge leaders die naturally so as to prevent them from speaking the truth."

Hor Nam Hong, and not Keat Chhon, filed a criminal lawsuit against Sam Rainsy on 22 April and also against Dam Sith for defamation and disinformation a few days later, on 25 April. On 5 June Dam went to testify as summoned by the court and on 8 June he was arrested and remanded in custody to Prey Sar prison. Sam Rainsy, a Member of Parliament, has neither testified in court as summoned nor been arrested.

BACKGROUND INFORMATION:

Moneaksekar Khmer newspaper is widely known to be supportive of the opposition Sam Rainsy Party (SRP). It is very critical of government policies, corruption and land grabbing by the rich and powerful. Dam stands in the forthcoming general election to be held on 27 July 2008, as an SRP candidate for Phnom Penh constituency. Dam had faced such a law suit before in September 2006 for exposing alleged corruption of another deputy prime minister (see UA-313-2006).

There is no freedom of the press in Cambodia. Although there has been no lawsuit against journalists for defamation and disinformation for some time, there has still been threats and intimidation against journalists, bans on publications or confiscation of newspapers (see AHRC-UAU-022-2008). On 28 May 2008 the ministry of information cancelled the license granted to a private radio station broadcasting in Kratie province for the sale of its airtime to political parties.

Apart from the court case against the SRP leader, there is another court case pending at the Supreme Court in which another opposition politician, Prince Norodom Ranariddh, leader of yet another self-named Norodom Ranariddh Party, is appealing against his conviction by the Municipal Court of Phnom Penh and the Appeal Court for alleged breach of trust over the management of the assets his former party, FUNCINPEC. Ranariddh has been living in exile since the beginning of the case against him. FUNCINPEC is an ally of the ruling Cambodian People's Party in the current coalition government.

Ranariddh is Prime Minister Hun Sen's arch enemy. Due to this enmity and the executive control of the judiciary, there are allegations that the delay in the Supreme Court's hearing of his case is meant to prevent Ranariddh from returning to Cambodia and compete in the July election. 

A characteristic feature of the Cambodian judicial system is judicial inquiry whereby criminal investigation is conducted by judges called investigating judges. The police bring a suspect to the prosecutor who decides whether to lay any charge against him or her. If so, and if the case requires further investigation, the prosecutor sends the case and the accused person to an investigating judge for investigation. This judge then decides whether to remand the accused person in custody awaiting trial (pre-trial detention). Investigating judges can delegate their power to the police to conduct investigation, but not to interrogate accused persons.

ADDITIONAL COMMENTS:

The Asian Human Rights Commission (AHRC) is of the view that there are no legal grounds for Dam's arrest and detention. In the first place, Moneaksekar Khmer's alleged defamatory publication is, if proven, but "false information or imputation" against a "public figure" which the Cambodian Press Law of 1995 (Article 10) treats as "libel" and prohibits. But this law is silent whether libel is a criminal offence. It provides, though, for civil action to get the court to order the press to publish a retraction or pay compensation, or both, on top of the right of the person whose honour or dignity is harmed by false publication to reply, demand retraction form the press and sue it for defamation, libel or humiliation.

However, the Cambodian criminal law, commonly known as UNTAC Law, provides for no such specific criminal offences as libel or humiliation. This law provides for defamation and insult which are punishable by a fine but no custodial sentence. According to the Cambodian Code of criminal Procedure (Article 204), without any charge of a crime punishable by imprisonment for one year or more, a person cannot be detained. Dam Sith's detention is therefore unlawful. It is illegal confinement which is punishable by imprisonment for between 3 and 10 years (UNTAC Law, Article 35).

Apparently, the plaintiff and the investigating judge wanted to lock Dam up so they have charged him with disinformation, which is a practice after the removal of a custodial sentence was removed from defamation and insult in 2006. Disinformation is punishable by imprisonment between 6 months and 3 years.

However, when ordering Dam's pre-trial detention, the judge ignored one of the constitutive elements of the crime of disinformation stipulated under Article 62 on this crime of the UNTAC Law. This article says that the publication, distribution or reproduction (of information which is false, fabricated, falsified or untruthfully attributed to a third person) "has disturbed or is likely to disturb the public peace".

The judge ignored that from the date of the publication of Sam Rainsy's remarks, that is, from 18 April 2008 until the date of Dam Sith's arrest, in Phnom Penh or elsewhere in Cambodia, no "public peace" was "disturbed" in the first, and least of all, there was no disturbance whose cause could be attributed to that publication. The charge of disinformation is groundless.

Dam's detention on this groundless charge is not simply a violation of the general principle of granting freedom to accused persons as clearly spelled out in the same criminal procedure code (Article 203), but is itself unlawful.

Dam Sith's arrest and detention came at a time when preparations for the July election were underway. It can only further compromise this election which has already been marred by the criminal court cases involving two opposition leaders, Sam Rainsy and Ranariddh, and by a series of obstructions to and violence against non-ruling parties.  According a group of civil society organizations, during the period of January 2008 - May 2008, there were five cases of political killings, 21 cases of harassment of and threat against party activists and 15 cases of dismantling of party banner signs.

The AHRC is therefore of the view that Dam Sith's arrest and detention are unlawful, violate the constitutional right to press freedom, and comes to mar further the election whose campaign has already been under way.


SUGGESTED ACTION
Please write your letters to the authorities listed below to urge them to immediately release Dam Sith from detention.

The AHRC has also written to the UN Working Group on arbitrary detention and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression for their intervention in this case.

To support this appeal, please click here:

Sample letter:

Dear ________,

CAMBODIA: Unlawful arrest of a newspaper editor in Phnom Penh

Name of victim: Dam Sith, 39, No. 19A, Street 293, Boeung Kak II commune, Tuol Kok district, Phnom Penh.
The unit who arrested him: The Military Police of the Municipality of Phnom Penh
The court who issued order for his detention: Judge Chhay Kong of the Municipal Court of Phnom Penh
Date and place of his arrest: At 11:30am on 8 June 2008 in Tuol Sanke commune, Tuol Kok district, in Phnom Penh

I am deeply concerned over the arrest of Dam Sith, the editor-in-chief of Moneaksekar Khmer newspaper on 8 June 2008 in Phnom Penh and his subsequent detention in Prey Sar prison on the outskirts of Phnom Penh.

I have learned that the arrest was made following a criminal lawsuit filed on 25 April 2008 by Foreign Minister Hor Nam Hong in the Municipal Court of Phnom Penh. Hor filed this suit against Dam for alleged defamation, insult and disinformation following Moneaksekar Khmer's publication of the remarks made by an opposition leader named Sam Rainsy about Hor's affiliation with the odious Khmer Rouge regime. According to Sam Rainsy, Hor was head of Khmer Rouge Boeuing Trabek prison in Phnom Penh.

However, based on the Cambodian Press Law of 1995, I find no grounds for Dam's arrest and detention. In the first place, the alleged defamatory publication is, if proven, but "false information or imputation" against a "public figure" which that law treats as "libel" and prohibits. But defamation and insult which also cover libel are punishable by a fine only, not by any custodial sentence. Without any charge of a crime with custodial sentence, a person cannot be detained. Dam Sith's detention is therefore unlawful and is illegal confinement.

The charge of disinformation was invoked apparently to have a ground to lock Dam up since disinformation is punishable by imprisonment. But there is no ground for this charge when the publication had not disturbed public peace and there had been no evidence it would do so, as required for this charge under UNTAC Law (Article 62), from the day of that publication to Dam's arrest. The charge of disinformation is also unlawful.

Dam's unlawful arrest and detention have seriously compromised press freedom in Cambodia. They have further added more blight to the general election to be held in the coming month of July, an election which has already been marred by obstructions to and violence against non-rulings, and also by court cases against prominent opposition leaders.

I therefore urge you to release Dam Sith immediately.

I trust you would favourably consider my request.

Yours sincerely,

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PLEASE SEND YOU LETTERS TO:

1. Mr. Hun Sen
Prime Minister
Cabinet of the Prime Minister
No. 38, Russian Federation Street
Phnom Penh
CAMBODIA
Fax: +855 23 36 0666
Tel: +855 2321 9898
Email: cabinet1b@camnet.com.kh

2. Mr. Sar Kheng
Deputy Prime Minister
Minister of Interior
No.275 Norodom Blvd., Phnom Penh
CAMBODIA
Fax/phone: +855 23 721 905 / 23 726 052 / 23 721 190
Email: info@interior.gov.kh

3. Mr. Tea Banh
Deputy Prime Minister
Minister of National Defence
Russian Federation Street
Phnom Penh
CAMBODIA
Tel: +855-23 883184 / 428171
Fax: +855-23 883184
E-mail: info@mond.gov.kh

4. Mr. Ang Vong Vathna
Minster of Justice
No 240, Sothearos Blvd.
Phnom Penh
CAMBODIA
Fax: +855 23 36 4119 / 21 6622
Email: moj@cambodia.gov.kh

5. Mr. Henro Raken
Prosecutor-General
Court of Appeal
No 240, Sothearos Blvd.
Phnom Penh
CAMBODIA
Fax: +855 23 21 66 22
Tel: +855 11 86 27 70

6. General Hok Lundy
National Police Commissioner
General-Commissariat of National Police
Phnom Penh
CAMBODIA
Fax: +855 23 22 09 52
Tel: +855 23 21 65 85

7. General Sao Sokha
Commander
Military Police
Mao Tse Tung Blvd
Khan Tuol Kok
Phnom Penh
CAMBODIA
Tel: +855 12 36 3636

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrchk.org)

  

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-134-2008
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.