It is universally acknowledged that freedom of expression is a fundamental freedom which every liberal democratic polity dearly upholds. In keeping up with this liberal ideal, the Cambodian Constitution solemnly enshrines freedom of expression in its Article 41. Far too often, however, the essence of this fundamental freedom is not well understood, likely due to the lack of an adequate understanding of its raison d’être in the first place.
Since freedom of expression is a concept originating from the West, I will utilise the theory on such freedom commonly found, for instance, in the American tradition of constitutional law. This modern legal tradition expounds four simple reasons why such freedom must exist and be practiced.
First, this freedom would generate a sense self-governance for the people. Free speech is vital in a true democracy because voters can best influence government’s choice of policies through free speech and can most fittingly evaluate candidates’ capabilities through unrestricted discussion about their ideas and deeds. In other words, in a liberal democracy, through freedom of expression it is the people themselves who govern public affairs. This ought to be so as Cambodian Constitution solemnly stipulates that all powers emanate from the people (Article 51). Representative democracy does not mean that people cease to speak. The ability to criticise government is the very core of a liberal democracy, which Cambodian political system clearly aspires to.
Second, free speech also functions as a fact-finding mechanism through which the real truth would be easy to discover. This is because open discussions often lead to find out what is right and what is wrong. There is hardly any better alternative. No reasonable citizen would ever say that government is the only organ able to determine what is true or false. Unless we forget, Cambodian Constitution vividly embraces the concept of fact-finding by the people, for instance, through National Congress “Samach Cheat” (Art 147) at which ordinary people would have a direct say on which policies have gone well or gone wild. Thus, the concept of empowering direct fact-finding by the people is not alien to our Constitutional system.
The third argument in favour of freedom of expression resides in its gratification of human self-identity. It is only through free speech that one person may discover her own personhood. Simply put, expressing ideas is how that person would define herself.
Civil society organisations (CSOs) represent voice of the people and have been playing very important role in democratic process including running voter education programs, organising debates and forums for all contesting political parties to improve level playing field, conducting polling and survey, monitoring elections and expressing independent opinions through making statements and giving comments, etc.
However, the current draft law on the Amendments to the Law on the Election of Members of the National Assembly (Article 84) intentionally restricts freedom and rights of CSOs to conduct the above activities, preventing CSOs from delivering civic education which could help people make a more informed decisions. Without the work of the civil society, voters will have to be content with politicised arguments of contenders.
Interestingly, the same law allows the officials of the armed forces and the judiciary to conduct political activities and campaigns during non-working hours or when they are not on official duties. In many democratic countries these officials are required to be neutral and prohibited from political activities and campaigns because they are influential and are given election related duties at various stages of the electoral process. It should also be noted that while the law restricts CSOs, it does not restrict the private sector from engaging in political activities.
Fourthly, when a government does not allow free speech, it certainly does not tolerate criticism. And tolerance, as much in Buddhism as it is in other forms of religion, is a basic value in a free society.
Cambodian Constitution unequivocally declares that Buddhism is the religion of the country (Article 43), thereby, making tolerance a basic core value in Cambodian society. Free speech ought to result from this value.
When we compare the above four reasons with the current debate on the draft law on the Amendments to the Law on the Election of Members of the National Assembly, one couldn’t help acknowledging that any intention to deprive the civil society of free speech not only violates the spirit of the Constitution but also nullifies any chance of a free election.
Preap Kol is the executive director of Transparency International Cambodia.