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Logo of Phnom Penh Post newspaper Phnom Penh Post - A whiff of corruption

A whiff of corruption

Dear Editor,

Disregarding the commission the relevant members of the

Royal Government might have received when Mobitel took over telephone services,

the issue is whether Mr So Khun's advisory position and salary constitute

corruption, bribery and conflict of interest, respectively, under Cambodian law

- both under the Constitution and other substantive laws.

Section 120, as

amended, of the Constitution provides that the "function of a member of the

Royal Government shall be incompatible with professional in trade or industry

and with the holding of any position in the public service" In other words, this

provision prohibits a member of the Royal Government from holding a position in

trade or commerce where there is a conflict of interest.

Mobitel is a

commercial telecommunications organization which is investing, ie providing

telephone services, in Cambodia and Mr So Khun is a minister, a member of the

government, in charge of this administrative regulatory body, the Ministry of

Posts and Telecommunications.

In breach of section 120 of the

Constitution, it is a clear conflict of interest for Mr So Khun to be a paid

adviser to this private commercial entity that is in the precise field of Mr So

Khun's governmental/ministerial duties.

Under Cambodian law, corruption

is defined as an act of accepting or attempting to accept a bribe. Section 38 of

UNTAC criminal law provides: "Without prejudice to possible disciplinary action,

a civil servant, ... official agent of [the government] ... while performing

official duties or tasks related to such duties, solicits or attempts to solicit

or who receives or attempts to receive property, a service, money, staff, a

professional position, a document, an authorization or any benefit in exchange

for any one of these same elements is guilty of crime of corruption."

Punishments include maximum imprisonment of 7 years, removal from office and

being barred from running for public office.

Mr So Khun is Minister in

charge of telecommunication affairs and responsible for issuing licenses,

applications, rules and regulations and enforcements. For him to receive money

from a private telephone services prima facie constitutes a breach of s38 of

this criminal law. It is the receipt of an inducement for him to do his job and

the receipt of money has the appearance of influencing, if not actually

influencing, his exercise of his ministerial duties.

Also of note under

this law, for a public official to receive commission breaches s38. A commission

is not the same as fees incurred in filing an application or paying for a

license because the latter type of fees go to the state revenue office (State

Treasury), supposedly. A commission or bribe, in contrast, is paid to the

individual.

Bribery is defined as the act of giving a bribe (financial

inducement) to a public servant or official. S58 provides "Any person who bribes

or attempt to bribe any elected official, civil servant ... or official agent of

the [Cambodian government] who, while performing official duties or tasks

related to such duties, by promising property, service, money, staff,

professional position, document, authorization or any benefit whatsoever in

exchange for any one of these same benefits is guilty of bribery". Punishment is

maximum 3 year imprisonment.

Mr So Khun is Minister of Posts and

Telecommunications. Mobitel is the telecommunications business, part of Mr So

Khun's portfolio; through its executive, it "gives" $2,500 per month to Mr So

Khun. This clearly falls within the definition of bribe under

s58.

Neither s38 nor s58 requires evidence of favouritism. It is the fact

of the financial inducement given to a government official by a person or

company in relation to the government official's duties. Both are guilty under

the respective sections when money changes hands. Mr So Khun's position in

relation to Mobitel's nature of business is sufficient.

It is my

submission that both Mr So Khun and the Mobitel executive have breached

Cambodian law.

- Bora Touch, Attorney-at-law

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