While it may be hyperbolic to compare Article 5 of the speech law recently passed
by the National Assembly with the Khmer Rouge era, as Sam Rainsy did recently in
the Phnom Penh Post (September 8, 2006), the law should raise concerns. It reads,
"Members of the Parliament may not abuse this parliamentary immunity to harm
the dignity of others, the good customs of the society, law and order, and national
Dangerously, the law fails to define either "law and order" or "national
security," and thus permits the government to prosecute virtually any type of
speech. As United States Ambassador Joseph A Mussomeli noted, a law of this
type is unique to Cambodia. However, the law should be recognized as problematic
for its relationship to Cambodian law and politics, not its international position.
Three relevant factors set Cambodia apart from other democracies:
• no other country affords the speech of its parliamentarians such broad protection;
• few other countries punish defamation as a crime; and
• no other country shares Cambodia's history.
The first factor ameliorates the danger of the law, while the latter two exacerbate
As the Sam Rainsy Party has observed, the law may conflict with Article 80 of the
Constitution, which provides that "The accusation, arrest, or detention of a
member of assembly shall be made only with the permission of the assembly . . . ."
Most democracies shield parliamentarians from liability only for statements made
in the course of the assembly's business, but in Cambodia, this clause has been interpreted
to protect members of the assembly from all arrest, regardless of its relationship
to legislating. Cambodia thus affords far more protection to its parliamentarians
than do other nations, and so a weakening of this protection would bring Cambodia
more in line with other democracies.
However, two factors heighten the danger of this law:
• Few other democracies have the crime of defamation; in most states, the wrongdoer
may be liable to his victim, but he will not be imprisoned or fined by the government.
While the Cambodian government has recently begun to re-evaluate its criminal defamation
law, and while this law has been harshly criticized, it further serves to set Cambodia
apart. As long as the law remains on the books, assembly members face criminal punishment
for statements made during the course of legislative debate - a situation inconsistent
with democratic principles.
• The speech law must be examined in light of Cambodia's history. Past governments
have used the police and court system to persecute their enemies instead of prosecuting
wrongdoers. One need only open a newspaper to see the dangers of a politicized justice
system. This new law is problematic to the extent that it has the potential to become
yet another political weapon.
That this new law is unique to Cambodia is not itself objectionable: Cambodia is
a unique nation. What makes this law dangerous is its interaction with the criminal
defamation law and Cambodia's history of politicized prosecutions. If members of
the assembly must fear criminal prosecutions for statements made during the creation
of legislation, free debate will be stifled and the quality of lawmaking will decline.
Arie Rubenstein - The Center for Social Development, Phnom Penh