Q uestion: If a tree falls in the forest and crushes a country (for instance,
Cambodia) and nobody but the diplomatic community is there to hear it, does it
make a sound?
Answer: No. Unless a free press is also there to report
You shouldn't be reading this article. It is illegal. Why? Because it
is about the press law and critical of the government and article 12 of the new
press law prohibits publication of "information which may cause harm to
"But," you say, "every article about politics,
corruption or other issues of public controversy could be said to affect
Correct. You have now passed "Political Science
101." Unfortunately, many members of the government and National Assembly never
took that course (many were apparently busy taking sophisticated courses in
fields such as "Financial Transactions" and "Ecology").
you're pushing the edge a bit too far. That could be defamation."
may have me there. Even though I'm only testing the water, seeing if a sense of
humor has also been banned, I'm not sure what the law is on
"Don't they have a provision in the press law about
Of course they do, in article 10. But there is also a
provision in the criminal law about defamation, and in that law defamation is
defined differently. And, you see, the press law doesn't state clearly whether
the criminal law is still in force. Under article 20 it is, but under article 21
it appears to have been declared null in relation to the press. So as a
journalist, how do I know what the legal standard is?
"Well, I'd advise
you to be careful and always tell the truth. Then you'll stay out of
You're right. It's just so frustrating when these @#*!!%
Members of Parliament pass dumb laws like this. Oops. Now I may have really done
it. I forgot that article13 of the law prohibits "false information which may
lead to humiliation of national institutions." No, I'm safe. What I said is true
- although I suppose the judge might think that what I said is false. But the
word "@#*!!%" isn't "humiliating," is it?
"I don't think so, but how can
you be certain? I don't see a definition of the word "humiliation" in article 13
- or of "national institutions." Even though you and I don't think the word
"@#*!!%" is "humiliating," the judge may have a different opinion."
never mind, this whole hypothetical discussion is unnecessary, because article
20 states that "no person shall be arrested or subject to criminal charge as the
result of the expression of opinions." When I said that the Members of
Parliament are "@#*!!%" I was only expressing my opinion. It is impossible to
prove whether I am right or wrong, so the court cannot find me guilty, can
"But isn't that the same defense used by the three Khmer
journalists who were convicted recently? And didn't the old law also say that
opinions were protected?"
Good point. You pass "Press Law 101." But I've
got one final ace up my sleeve. Article 41 of the Constitution states that the
press shall be free. And article 109 of the Constitution states that the
judiciary shall be independent. So I'll just hire a good lawyer and the judge
will dismiss such a silly case if it is filed.
"But that has never
happened before. Aren't almost all of the judges party members and hasn't the
court ruled in the government's favor every time a journalist has been put on
You're right. Well, I'm glad that I'm not Cambodian. If that
situation ever arises I'll just sneak out of town on the next plane.
what about the local journalists? What will they do? Go to jail?"
The Anti-Press Law
If past is prologue, some Cambodian journalists will indeed go to jail under
the new press law (and the old criminal law). Soon, Cambodia will again have
When the new press law takes legal effect (at press
time it has yet to be signed into law), what you have just read, and other
controversial stories about politics, corruption and military activities, to
name but a few sensitive subjects, will not be published - at least not without
the ubiquitous threat of serious legal consequences.
This is because the
government now views the press as the enemy within, a deviant monster to be
tamed and then manipulated to serve its own narrow political purposes. Though
there is no doubt that the Khmer-language press is often unprofessional, abusive
and fails to distinguish rumor from fact, this can be attributed to the lack of
professional training under previous regimes and decades of pent-up anger and
frustration at a dictatorial ruling class.
It will take time to build a
responsible press, just as it will take time to build a responsible government.
Many journalists are simply incompetent. But no one is putting ministers in jail
for incompetence. What the press needs is a helping hand; what it has gotten
from the press law is a punch in the face. Consider the following:
- "Any act committed by owners, editors or journalists that violates the
criminal law shall be subjected to punishment according to the criminal law."
- "The press shall not publish or reproduce any information which may cause
harm to national security or political stability." (Article 12).
- Violators "shall be penalized by a fine from 5,000,000 riel [$2,000] to
15,000,000 riel [$6,000], without taking into account punishment under the
criminal law." (Article 12)
- "The Ministry of Information and Ministry of Interior shall have the right
to confiscate the offending issue of the press immediately." (Article
- "The Ministry of Information may also suspend a publication for a period not
exceeding thirty days and then forward the case to the court." (Article
- "The press shall not publish or reproduce false information which may lead
to humiliation of national institutions." (Article 13).
- "The press shall not publish... indecent curse words... words describing
explicit sexual acts... pictures comparing humans to degrading animals."
- "The press shall not publish anything which may affect the public order by
inciting directly one or more persons to commit violence." (Article 11).
- An individual has "the right to sue on charge of... humiliation for harm to
his or her honor or dignity." (Article 10)
Though the law does provide some basic freedoms - protection of sources, no
pre-publication censorship and a limited freedom of information clause - the
thrust of the law is clearly to censor the press. In short, the law allows the
government to put journalists in jail for their writings, close newspapers
without a court order for thirty days - and forever with a court order - and
prohibit anything affecting political stability (undefined), national security
(undefined) or words which humiliate (undefined) individuals or national
The law is flatly unconstitutional. Article 41
of the Constitution, which generally tracks international law, states that there
shall be "freedom of expression, press, publication ... No one shall exercise
this right to infringe upon the rights of others, affect the good traditions of
society, violate public order or violate national security."
Constitution and international law freedom of the press is the rule and
restrictions on press freedoms are permissible only where specifically
There is, of course, no restriction in the Constitution to
protect against harm to "political stability." This is not a legitimate state
interest; rather, it is simply an arbitrary category hastily concocted by a
government intent on protecting the new political status quo called "national
The protection of "national institutions" from
"humiliation" is equally unconstitutional, as the Constitution only protects the
rights of individuals, not inanimate or artificial entities like national
institutions (how would one know if an institution was humiliated? Would it cry,
or hide in shame?).
Yet another unconstitutional provision is article
12's authorization of administrative closure of a newspaper - that is, without a
court order. Article 109 of the Constitution gives the judiciary the sole
authority to resolve legal disputes.
At minimum, a law should clarify
what people may and may not do. This law fails that test. Journalists are in the
position of having to guess what they can and cannot write. One exception is
article 14 (no degrading pictures of humans as animals): draw a picture of Hun
Sen's wife with a pig's head, as a local cartoonist did last year, and expect to
pay a $2,000 fine.
But there is no such certainty about the rest of the
While every country has a legitimate interest in protecting its
"national security", other countries at least bother to define what they mean by
the term. Just what is "national security?" Is it publication of military
secrets? Is it incitement to overthrow the government? Information affecting the
safety of troops at the front lines?
Do these sound like reasonable
definitions? That's what the Khmer Journalists Association, the League of
Cambodian Journalists and MPs Son Chhay, Kem Sokha, Monh Sophan and Chum Kim Eng
thought when they proposed them as amendments during last week's parliamentary
The result? A resounding defeat after a disingenuous explanation
on the floor by CPP stalwart Chhour Leang Huot that the Constitutional Council
would interpret the meaning of these terms. The only problem with this approach
is that by the time the Constitutional Council hears a case the journalist will
already be in jail or the newspaper will already be closed. Oh, and another
trivial point - the Constitutional Council does not yet exist (it has been
blocked by a government that has no interest in having its legislation critiqued
and possibly overturned).
Second prize in the "fatuous reassurances"
category goes to National Assembly First Vice-President Loy Sim Chheang, who
explained afterward that "these uncertainties have been clarified during the
debate. If the government charges a journalist under article 12 then the
National Assembly will assist the journalist to clarify the issues."
Rule of Law - or Rule of Power?
Any serious newspaper affects "political stability" in every issue it prints.
If it doesn't it isn't providing its readers with the information they
A story about last year's alleged coup attempt in the Phnom Penh
Post would certainly affect "political stability," and perhaps even "national
security." Under the new law that issue of the Post could be confiscated, the
paper could be closed and the editor could be thrown in jail.
government wouldn't do that, would they? Perhaps not to the Post (not yet,
anyway), but that is exactly what happened last July to the Khmer-language
Morning News and its editor, Ngoun Noun, when he published a story alleging that
Chea Sim and Sar Kheng were behind the failed coup attempt. For his effort at
reporting a widely held theory (and one published on these pages), Noun received
an all-expense paid vacation in P.J. prison, gaining his release only after
intense international pressure on the government.
In other countries the
judiciary could act as a buffer between a vague, repressive law and its targets
by interpreting the law narrowly. But in Cambodia no such institution exists.
Almost all of the judges are CPP members, appointed more for party fealty than
The rule of law does not yet exist in Cambodia. Given
the attitude of the government, it is doubtful if it will anytime in the
The degree of respect which the government has for
law is perhaps best evidenced by a letter dated 30 January 1995 from First Prime
Minister Ranariddh, a French-trained lawyer, to Second Prime Minister Hun Sen
about the military's request to extend the amnesty under the Khmer Rouge law.
In the letter Ranariddh acknowledges that "the Royal Government may not
do anything inconsistent with the law, but we could pretend to ignore it and
just go on receiving our compatriots who have changed their minds and wish to
The reality is that the legal definition of "political
stability," "national security" and "humiliation" will be whatever the
government or Prime Minister says it is (on a particular day).
beware. The sword is mightier than the pen.
Politics, Cambodian Style
A year ago, the government still seemed to care about local and international
opinion. Last June, strong condemnation from "Amnesty International," "Asia
Watch," the "International Federation of Journalists," "Reporters sans
Frontieres," the "Khmer Journalists Association," local human rights NGOs and
others led to the withdrawal of the first draft of the press law.
days are gone. What was once a promising discussion about balancing press
freedoms and responsibilities in a developing country unravelled over the course
of the past year as the press law was hijacked by old-style politicians
unimpressed by human rights treaties and the wails of opposition journalists.
Even a letter from the King asking that only civil remedies be employed was
Before last July's coup attempt the government had been very
careful to follow the Constitution and preach respect for democracy and the rule
of law. MPs even took the Constitution at face value, proposing laws in
contradiction to the government.
Things changed after July. Since that
time a new political order has been established, with direct control of almost
every facet of government by the Prime Ministers.
First Prime Minister
Prince Ranariddh's new attitude was made
clear last September upon his return
from a visit to King Sihanouk in Beijing. At Ponchentong Airport Ranariddh
announced that his father was prepared to return to power on three conditions:
only one political party, no free press and no human rights
Sihanouk denied this statement and it is now widely believed that
Ranariddh was actually representing his own views. Hun Sen and the CPP had never
accepted the apparent new order; their participation was purely tactical. With
Ranariddh's apparent change of heart about the future of Cambodian political
life, "national reconciliation" changed from a policy goal to an iron-clad hold
on power by the two major political parties.
Raw power and intimidation
soon returned in full view as political staples. On 9 September, Voice of Khmer
Youth editor Noun Chan was assassinated in broad daylight near Wat Phnom. Later
that month Sam Rainsy was sacked as Finance Minister for holding deviant views
within the government.
In December another journalist was killed and Hun
Sen publicly threatened military demonstrations in the front of houses of MPs
who spoke in favor of a return to power by the King or against the provision of
military aid by foreign governments.
Meetings were held in both major
parties to ensure strict discipline among MPs. In January dissident MPs began to
receive death threats. In May Sam Rainsy was dismissed from FUNCINPEC.
June a meeting was held at Hun Sen's house in which plans were hatched to
destroy the Khmer Journalists Association with a new organization, the League of
Cambodian Journalists. The KJA's sin: steady advocacy of a free press and
defense of all journalists, including journalists associated with the political
views of Sam Rainsy, against imprisonment for their writings. Intense
arm-twisting resulted in mass defections to the LCJ, particularly by the
On 22 June Sam Rainsy was illegally expelled from
Parliament. On 9 July Information Minister Ieng Mouly staged a new BLDP
Congress, in which he was installed as President, replacing party founder Son
Sann. This meeting occurred with the explicit backing of both Prime Ministers
and was designed to cast out the most ferocious critics of the government,
including human rights champion Kem Sokha.
Not surprisingly, during the
parliamentary debate on the press law Mouly, a previously staunch defender of
press freedoms, simply toed the government line, rejecting the attempts of
liberal MPs to amend the law
Prince Ranariddh was prescient.
the BLDP having formally renounced its position as an opposition party, the
government of "national reconciliation" is complete. If Mouly expels MPs Son
Sann, Son Soubert, Kem Sokha and Pol Ham from Parliament, the last remnants of
political independence and opposition will be gone from the National
The passage of the press law and the creation of the LCJ
mirrors the second point of Ranariddh's plan. When the dust settles, the main
opposition press will face legal action and closure. As even the strongly
pro-government paper Koh Santipheap headlined on 15 July: "The Tongue of the
Press Has Been Cut!"
All that is left to complete Ranariddh's September
trifecta is to put local human rights NGOs out of business or on a short
Democracy - It Was Fun While It Lasted.
In the early 1950s Winston Churchill turned up one afternoon at Parliament
bleary eyed, red nosed and wobbly, apparently having drunk his lunch at the
local pub. Responding to a question from a member of the opposition Labour
Party, the usually loquacious Churchill had trouble forming an answer. When he
finally did, his words were slurred and unintelligible. Shocked at the obvious
inebriation of the Prime Minister in the hallowed chambers of Westminster, an
elderly woman in the spectator's gallery cried out: "Mr. Churchill, you're
drunk!" Stunned, Churchill wheeled around, took a deep breath and retorted,
"Madame, I may be drunk. But in the morning I will be sober. You, I am sorry to
say, will still be ugly."
Unfortunately, in present-day Cambodia,
day-after sobriety will not change reality. Sam Rainsy has been expelled. Kem
Sokha and others will likely soon follow. Three journalists have been killed in
the past year. MPs are threatened for disagreeing with the government. The press
law is a disaster. To put it bluntly, the political situation in Cambodia can
only be described as Churchill described his heckler. The recent slide towards
authoritarianism in Cambodia is now virtually complete. Government officials
build villas, place $1,000 bets at casinos and drive the latest BMWs (all on
official salaries of $20 per month), while farmers in Prey Veng choke on their
last rice seeds.
The democracy party is over. It is now the hard, cold
morning after. The press will not be free. Opposition will not be tolerated.
With a sticky throat and bloodshot eyes, once again Cambodia is a sideshow. The
cold-war is history and Vietnam - the US's perennial bogeyman - is a
fully-fledged member of the family of nations.
That silence you hear is
international indifference. The international community has moved on to bigger
and more remunerative trouble spots. The United Nations will not return again to
serve democracy to Cambodia's people on its golden hors d'ouerves
Cambodia and average Cambodians are left to their own devices,
acutely aware that the train of intolerance has left the station and is hurtling
towards its final destination in Singapore (with a long stop in Kuala Lumpur to
drop off some logs).
All that is left to complete the journey is to
announce that the 1998 national elections will be postponed due to "security
problems," a notion being discreetly discussed on mobile phones and in the
corridors of power. If and when that decision is made, the new press law will be
in full force to make sure that, at least inside Cambodia, the tree that falls
on a nascent democracy does not make a sound.