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Logo of Phnom Penh Post newspaper Phnom Penh Post - Penal Code receives lukewarm reception

Penal Code receives lukewarm reception

The long-awaited approval of Cambodia's new Criminal Procedure Code has been greeted

with concern and apprehension by opposition lawmakers and rights activists who fear

it may be manipulated for political gain.

The new Penal Code, approved by a unanimous June 7 vote of the National Assembly,

determines police and judicial protocol. While legal experts generally agree the

new code is an improvement on the previous UNTAC-era law, certain provisions have

caused alarm.

"The National Assembly approved the law without considering the concerns I raised,"

Monh Saphan, Funcinpec parliamentarian told the Post on June 11. "The new law

is good in many ways, but there are loopholes which the ruling party could use for

political reasons."

The new law has raised concerns about an extension of the pre-trial detention period,

changes to rules on extraditions, and the right to monitor and record telephone conversations.

Also in question is the license to search private homes, even if the resident is

not present.

Chiv Keng, the chief of the Phnom Penh Muncipal court, said critics of the Penal

Code were needlessly politicizing the new law.

"They're making it into an issue to fight against the ruling party," Keng

told the Post on June 14. "The new law is much better than the old law."

Keng said the previous law had too many loopholes that led to diverging interpretations

from judges.

"It is not 100-percent perfect, but it has fewer loopholes for the judge to

interpret," he said. "Within two years, I have made a lot of reform [of

the court system] and we have punished many judges. We have to work hard and try

to reform the judicial system, but the opposition party doesn't see our good work."

Keng said that the opinion of the new criminal code expressed by the opposition was

tainted by the fact "they always see the court system as dark and black."

But experts say the new code contravenes international legal norms. The International

Covenant on Civil and Political Rights, ratified by Cambodia in May 1992, states

that a suspect has the right to counsel within 48 hours from the moment of their

arrest. But Article 98 of the new Penal Code states that those under arrest can only

request council after 24 hours of detention.

"Under the former Penal Code you were theoretically granted access to a lawyer

immediately," said Kek Galabru, president of local rights group Licadho. "Now,

the new law gives the police the ability to hold people for 24 hours without seeing

a lawyer. This is a long time. Enough time to torture, or to force a confession,

or extort money."

Under the old code, pre-trial detention was already problematic, said Sam Rainsy

Party lawmaker Son Chhay.

"In theory, if a suspect was arrested but there was not enough conclusive evidence

of their guilt the prosecutor had to release them immediately," he said. "But

even so, many people were held in pre-trial detention, their cases were not investigated,

and they have been detained for many years illegally."

Saphan said that by making suspects wait 24 hours before they could see a lawyer,

the new code would make abuses during pre-trial detention situation worse.

"This is very bad in Cambodia as people lack knowledge about how to access legal

services," he said. "It will become more difficult to ensure that they

are aware of and able to exercise their right to access legal council immediately".

A new stipulation permitting phone-tapping has also caused concern, with Chhay describing

it as "dangerous" and "unconstitutional."

"The government has a system to monitor telephone communication and it is not

only the Sam Rainsy Party who are worried about this but also politicians in the

CPP," he said. "I called to stop monitoring telephones because it has intimidated


But Chhay added that the practice of phone-tapping was something people were already

used to.

"Even now the [government] monitors every day without permission from the prosecutor,"

he said. "This is why individual politicians have several telephones and are

always changing their numbers."

Theary Seng, director of the Center for Social Development (CSD), said phone-tapping

was an invasion of the right to privacy. She said that the changes to the phone-tapping

laws in America after the September 11, 2001, terrorist attacks on New York and Washington

had caused animated debate in civil society, even though the US has other checks

and balances to counter potential abuse. She said the monitoring of phones and computers

would further deepen the culture of fear and suspicion that is already a part of

Cambodian daily life.

"The potential for misuse is great anywhere, but even more so in Cambodia, especially

in light of what we already know of the recent past and present of Cambodian politics

and the crude nature of power in this country," she said. Khieu Sopheak, spokesman

for the Ministry of Interior, said there was "nothing to be concerned about"

with the new phone-tapping provision.

"In every country there is phone monitoring, especially modern countries, but

they only target individuals who pose a threat to national security such as those

who plan coups," he said. "These are the kind of people who the authorities

will target for investigation."

Galabru said potential rights abuses and threats could arise from phone-tapping.

She said Licadho was also worried about the stipulation in the code concerning house

searches. "We are concerned that if house searches are carried out when the

home-owner is not there, then evidence could be planted on them. This is very dangerous,"

she said.

Another contentious article states that extradition requests from foreign countries

will not be granted if the accusation against the person in question is politically


"The provisions concerning extradition could be used for political reasons or

to abuse the right of an individual," said Yim Sovann, SRP lawmaker.

Chhay said the vague wording of the article on extradition, and its lack of reference

to international law and the numerous extradition treaties the Kingdom has with neighboring

countries was alarming.

"We are concerned the [legal] officers on duty will lack knowledge about the

law and will continue to work under the influence of the powerful or the politicians,"

he said. "We are also still concerned about the political influence in the court

system. Almost all the judges and prosecutors are member of the CPP."



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