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Logo of Phnom Penh Post newspaper Phnom Penh Post - Requiem for the Press

Requiem for the Press

Q uestion: If a tree falls in the forest and crushes a country (for instance,

Cambodia) and nobody but the diplomatic community is there to hear it, does it

make a sound?

Answer: No. Unless a free press is also there to report

it.

You shouldn't be reading this article. It is illegal. Why? Because it

is about the press law and critical of the government and article 12 of the new

press law prohibits publication of "information which may cause harm to

political stability."

"But," you say, "every article about politics,

corruption or other issues of public controversy could be said to affect

'political stability."

Correct. You have now passed "Political Science

101." Unfortunately, many members of the government and National Assembly never

took that course (many were apparently busy taking sophisticated courses in

fields such as "Financial Transactions" and "Ecology").

"Careful, now

you're pushing the edge a bit too far. That could be defamation."

You

may have me there. Even though I'm only testing the water, seeing if a sense of

humor has also been banned, I'm not sure what the law is on

defamation.

"Don't they have a provision in the press law about

"defamation?"

Of course they do, in article 10. But there is also a

provision in the criminal law about defamation, and in that law defamation is

defined differently. And, you see, the press law doesn't state clearly whether

the criminal law is still in force. Under article 20 it is, but under article 21

it appears to have been declared null in relation to the press. So as a

journalist, how do I know what the legal standard is?

"Well, I'd advise

you to be careful and always tell the truth. Then you'll stay out of

trouble."

You're right. It's just so frustrating when these @#*!!%

Members of Parliament pass dumb laws like this. Oops. Now I may have really done

it. I forgot that article13 of the law prohibits "false information which may

lead to humiliation of national institutions." No, I'm safe. What I said is true

- although I suppose the judge might think that what I said is false. But the

word "@#*!!%" isn't "humiliating," is it?

"I don't think so, but how can

you be certain? I don't see a definition of the word "humiliation" in article 13

- or of "national institutions." Even though you and I don't think the word

"@#*!!%" is "humiliating," the judge may have a different opinion."

Well,

never mind, this whole hypothetical discussion is unnecessary, because article

20 states that "no person shall be arrested or subject to criminal charge as the

result of the expression of opinions." When I said that the Members of

Parliament are "@#*!!%" I was only expressing my opinion. It is impossible to

prove whether I am right or wrong, so the court cannot find me guilty, can

they?

"But isn't that the same defense used by the three Khmer

journalists who were convicted recently? And didn't the old law also say that

opinions were protected?"

Good point. You pass "Press Law 101." But I've

got one final ace up my sleeve. Article 41 of the Constitution states that the

press shall be free. And article 109 of the Constitution states that the

judiciary shall be independent. So I'll just hire a good lawyer and the judge

will dismiss such a silly case if it is filed.

"But that has never

happened before. Aren't almost all of the judges party members and hasn't the

court ruled in the government's favor every time a journalist has been put on

trial?"

You're right. Well, I'm glad that I'm not Cambodian. If that

situation ever arises I'll just sneak out of town on the next plane.

"But

what about the local journalists? What will they do? Go to jail?"

The Anti-Press Law

If past is prologue, some Cambodian journalists will indeed go to jail under

the new press law (and the old criminal law). Soon, Cambodia will again have

political prisoners.

When the new press law takes legal effect (at press

time it has yet to be signed into law), what you have just read, and other

controversial stories about politics, corruption and military activities, to

name but a few sensitive subjects, will not be published - at least not without

the ubiquitous threat of serious legal consequences.

This is because the

government now views the press as the enemy within, a deviant monster to be

tamed and then manipulated to serve its own narrow political purposes. Though

there is no doubt that the Khmer-language press is often unprofessional, abusive

and fails to distinguish rumor from fact, this can be attributed to the lack of

professional training under previous regimes and decades of pent-up anger and

frustration at a dictatorial ruling class.

It will take time to build a

responsible press, just as it will take time to build a responsible government.

Many journalists are simply incompetent. But no one is putting ministers in jail

for incompetence. What the press needs is a helping hand; what it has gotten

from the press law is a punch in the face. Consider the following:

  • "Any act committed by owners, editors or journalists that violates the

    criminal law shall be subjected to punishment according to the criminal law."

    (Article 20).

  • "The press shall not publish or reproduce any information which may cause

    harm to national security or political stability." (Article 12).

  • Violators "shall be penalized by a fine from 5,000,000 riel [$2,000] to

    15,000,000 riel [$6,000], without taking into account punishment under the

    criminal law." (Article 12)

  • "The Ministry of Information and Ministry of Interior shall have the right

    to confiscate the offending issue of the press immediately." (Article

    12).

  • "The Ministry of Information may also suspend a publication for a period not

    exceeding thirty days and then forward the case to the court." (Article

    12).

  • "The press shall not publish or reproduce false information which may lead

    to humiliation of national institutions." (Article 13).

  • "The press shall not publish... indecent curse words... words describing

    explicit sexual acts... pictures comparing humans to degrading animals."

    (Article 14).

  • "The press shall not publish anything which may affect the public order by

    inciting directly one or more persons to commit violence." (Article 11).

  • An individual has "the right to sue on charge of... humiliation for harm to

    his or her honor or dignity." (Article 10)

Though the law does provide some basic freedoms - protection of sources, no

pre-publication censorship and a limited freedom of information clause - the

thrust of the law is clearly to censor the press. In short, the law allows the

government to put journalists in jail for their writings, close newspapers

without a court order for thirty days - and forever with a court order - and

prohibit anything affecting political stability (undefined), national security

(undefined) or words which humiliate (undefined) individuals or national

institutions (undefined).

The law is flatly unconstitutional. Article 41

of the Constitution, which generally tracks international law, states that there

shall be "freedom of expression, press, publication ... No one shall exercise

this right to infringe upon the rights of others, affect the good traditions of

society, violate public order or violate national security."

Under the

Constitution and international law freedom of the press is the rule and

restrictions on press freedoms are permissible only where specifically

enumerated.

There is, of course, no restriction in the Constitution to

protect against harm to "political stability." This is not a legitimate state

interest; rather, it is simply an arbitrary category hastily concocted by a

government intent on protecting the new political status quo called "national

reconciliation."

The protection of "national institutions" from

"humiliation" is equally unconstitutional, as the Constitution only protects the

rights of individuals, not inanimate or artificial entities like national

institutions (how would one know if an institution was humiliated? Would it cry,

or hide in shame?).

Yet another unconstitutional provision is article

12's authorization of administrative closure of a newspaper - that is, without a

court order. Article 109 of the Constitution gives the judiciary the sole

authority to resolve legal disputes.

At minimum, a law should clarify

what people may and may not do. This law fails that test. Journalists are in the

position of having to guess what they can and cannot write. One exception is

article 14 (no degrading pictures of humans as animals): draw a picture of Hun

Sen's wife with a pig's head, as a local cartoonist did last year, and expect to

pay a $2,000 fine.

But there is no such certainty about the rest of the

law.

While every country has a legitimate interest in protecting its

"national security", other countries at least bother to define what they mean by

the term. Just what is "national security?" Is it publication of military

secrets? Is it incitement to overthrow the government? Information affecting the

safety of troops at the front lines?

Do these sound like reasonable

definitions? That's what the Khmer Journalists Association, the League of

Cambodian Journalists and MPs Son Chhay, Kem Sokha, Monh Sophan and Chum Kim Eng

thought when they proposed them as amendments during last week's parliamentary

debate.

The result? A resounding defeat after a disingenuous explanation

on the floor by CPP stalwart Chhour Leang Huot that the Constitutional Council

would interpret the meaning of these terms. The only problem with this approach

is that by the time the Constitutional Council hears a case the journalist will

already be in jail or the newspaper will already be closed. Oh, and another

trivial point - the Constitutional Council does not yet exist (it has been

blocked by a government that has no interest in having its legislation critiqued

and possibly overturned).

Second prize in the "fatuous reassurances"

category goes to National Assembly First Vice-President Loy Sim Chheang, who

explained afterward that "these uncertainties have been clarified during the

debate. If the government charges a journalist under article 12 then the

National Assembly will assist the journalist to clarify the issues."

Rule of Law - or Rule of Power?

Any serious newspaper affects "political stability" in every issue it prints.

If it doesn't it isn't providing its readers with the information they

deserve.

A story about last year's alleged coup attempt in the Phnom Penh

Post would certainly affect "political stability," and perhaps even "national

security." Under the new law that issue of the Post could be confiscated, the

paper could be closed and the editor could be thrown in jail.

But the

government wouldn't do that, would they? Perhaps not to the Post (not yet,

anyway), but that is exactly what happened last July to the Khmer-language

Morning News and its editor, Ngoun Noun, when he published a story alleging that

Chea Sim and Sar Kheng were behind the failed coup attempt. For his effort at

reporting a widely held theory (and one published on these pages), Noun received

an all-expense paid vacation in P.J. prison, gaining his release only after

intense international pressure on the government.

In other countries the

judiciary could act as a buffer between a vague, repressive law and its targets

by interpreting the law narrowly. But in Cambodia no such institution exists.

Almost all of the judges are CPP members, appointed more for party fealty than

legal distinction.

The rule of law does not yet exist in Cambodia. Given

the attitude of the government, it is doubtful if it will anytime in the

foreseeable future.

The degree of respect which the government has for

law is perhaps best evidenced by a letter dated 30 January 1995 from First Prime

Minister Ranariddh, a French-trained lawyer, to Second Prime Minister Hun Sen

about the military's request to extend the amnesty under the Khmer Rouge law.

In the letter Ranariddh acknowledges that "the Royal Government may not

do anything inconsistent with the law, but we could pretend to ignore it and

just go on receiving our compatriots who have changed their minds and wish to

rejoin society."

The reality is that the legal definition of "political

stability," "national security" and "humiliation" will be whatever the

government or Prime Minister says it is (on a particular day).

Writer

beware. The sword is mightier than the pen.

Politics, Cambodian Style

A year ago, the government still seemed to care about local and international

opinion. Last June, strong condemnation from "Amnesty International," "Asia

Watch," the "International Federation of Journalists," "Reporters sans

Frontieres," the "Khmer Journalists Association," local human rights NGOs and

others led to the withdrawal of the first draft of the press law.

Those

days are gone. What was once a promising discussion about balancing press

freedoms and responsibilities in a developing country unravelled over the course

of the past year as the press law was hijacked by old-style politicians

unimpressed by human rights treaties and the wails of opposition journalists.

Even a letter from the King asking that only civil remedies be employed was

ignored.

Before last July's coup attempt the government had been very

careful to follow the Constitution and preach respect for democracy and the rule

of law. MPs even took the Constitution at face value, proposing laws in

contradiction to the government.

Things changed after July. Since that

time a new political order has been established, with direct control of almost

every facet of government by the Prime Ministers.

First Prime Minister

Prince Ranariddh's new attitude was made

clear last September upon his return

from a visit to King Sihanouk in Beijing. At Ponchentong Airport Ranariddh

announced that his father was prepared to return to power on three conditions:

only one political party, no free press and no human rights

NGOs.

Sihanouk denied this statement and it is now widely believed that

Ranariddh was actually representing his own views. Hun Sen and the CPP had never

accepted the apparent new order; their participation was purely tactical. With

Ranariddh's apparent change of heart about the future of Cambodian political

life, "national reconciliation" changed from a policy goal to an iron-clad hold

on power by the two major political parties.

Raw power and intimidation

soon returned in full view as political staples. On 9 September, Voice of Khmer

Youth editor Noun Chan was assassinated in broad daylight near Wat Phnom. Later

that month Sam Rainsy was sacked as Finance Minister for holding deviant views

within the government.

In December another journalist was killed and Hun

Sen publicly threatened military demonstrations in the front of houses of MPs

who spoke in favor of a return to power by the King or against the provision of

military aid by foreign governments.

Meetings were held in both major

parties to ensure strict discipline among MPs. In January dissident MPs began to

receive death threats. In May Sam Rainsy was dismissed from FUNCINPEC.

In

June a meeting was held at Hun Sen's house in which plans were hatched to

destroy the Khmer Journalists Association with a new organization, the League of

Cambodian Journalists. The KJA's sin: steady advocacy of a free press and

defense of all journalists, including journalists associated with the political

views of Sam Rainsy, against imprisonment for their writings. Intense

arm-twisting resulted in mass defections to the LCJ, particularly by the

CPP-affiliated press.

On 22 June Sam Rainsy was illegally expelled from

Parliament. On 9 July Information Minister Ieng Mouly staged a new BLDP

Congress, in which he was installed as President, replacing party founder Son

Sann. This meeting occurred with the explicit backing of both Prime Ministers

and was designed to cast out the most ferocious critics of the government,

including human rights champion Kem Sokha.

Not surprisingly, during the

parliamentary debate on the press law Mouly, a previously staunch defender of

press freedoms, simply toed the government line, rejecting the attempts of

liberal MPs to amend the law

Prince Ranariddh was prescient.

With

the BLDP having formally renounced its position as an opposition party, the

government of "national reconciliation" is complete. If Mouly expels MPs Son

Sann, Son Soubert, Kem Sokha and Pol Ham from Parliament, the last remnants of

political independence and opposition will be gone from the National

Assembly.

The passage of the press law and the creation of the LCJ

mirrors the second point of Ranariddh's plan. When the dust settles, the main

opposition press will face legal action and closure. As even the strongly

pro-government paper Koh Santipheap headlined on 15 July: "The Tongue of the

Press Has Been Cut!"

All that is left to complete Ranariddh's September

trifecta is to put local human rights NGOs out of business or on a short

leash.

Democracy - It Was Fun While It Lasted.

In the early 1950s Winston Churchill turned up one afternoon at Parliament

bleary eyed, red nosed and wobbly, apparently having drunk his lunch at the

local pub. Responding to a question from a member of the opposition Labour

Party, the usually loquacious Churchill had trouble forming an answer. When he

finally did, his words were slurred and unintelligible. Shocked at the obvious

inebriation of the Prime Minister in the hallowed chambers of Westminster, an

elderly woman in the spectator's gallery cried out: "Mr. Churchill, you're

drunk!" Stunned, Churchill wheeled around, took a deep breath and retorted,

"Madame, I may be drunk. But in the morning I will be sober. You, I am sorry to

say, will still be ugly."

Unfortunately, in present-day Cambodia,

day-after sobriety will not change reality. Sam Rainsy has been expelled. Kem

Sokha and others will likely soon follow. Three journalists have been killed in

the past year. MPs are threatened for disagreeing with the government. The press

law is a disaster. To put it bluntly, the political situation in Cambodia can

only be described as Churchill described his heckler. The recent slide towards

authoritarianism in Cambodia is now virtually complete. Government officials

build villas, place $1,000 bets at casinos and drive the latest BMWs (all on

official salaries of $20 per month), while farmers in Prey Veng choke on their

last rice seeds.

The democracy party is over. It is now the hard, cold

morning after. The press will not be free. Opposition will not be tolerated.

With a sticky throat and bloodshot eyes, once again Cambodia is a sideshow. The

cold-war is history and Vietnam - the US's perennial bogeyman - is a

fully-fledged member of the family of nations.

That silence you hear is

international indifference. The international community has moved on to bigger

and more remunerative trouble spots. The United Nations will not return again to

serve democracy to Cambodia's people on its golden hors d'ouerves

platter.

Cambodia and average Cambodians are left to their own devices,

acutely aware that the train of intolerance has left the station and is hurtling

towards its final destination in Singapore (with a long stop in Kuala Lumpur to

drop off some logs).

All that is left to complete the journey is to

announce that the 1998 national elections will be postponed due to "security

problems," a notion being discreetly discussed on mobile phones and in the

corridors of power. If and when that decision is made, the new press law will be

in full force to make sure that, at least inside Cambodia, the tree that falls

on a nascent democracy does not make a sound.

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