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

security."

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

it.

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