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
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
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
- Bora Touch, Attorney-at-law