Guest post by Julia-Pia Schütze
These days public attention in Cambodia focuses on three different legal proceedings. As most international lawyers will be aware of, the Extraordinary Chambers in the Courts of Cambodia (ECCC) are going to pronounce its verdict in the “Duch” trial in late July. But apart from that, two domestic cases also touch upon some interesting features of human rights law. Firstly, two arrests warrants, the latest dating from 22 June 2010, were issued against opposition leader Sam Rainsy for uprooting border markers near the border to the neighbouring country Vietnam and publishing a map on his party’s website containing false information about the border demarcation between the two countries respectively. Secondly, the Cambodian Supreme Court has recently decided as Court of Appeal on a defamation case brought by the well known lawmaker and Member of Parliament Mu Sochua against the Prime Minister of Cambodia, Hun Sen. This note deals with the latter case. However, I will not comment on any of the issues but rather only briefly summarise the facts of the case to bring them to the knowledge of a wider public.
The offence of defamation is enshrined in Art. 63 (1) of the Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period (UNTAC Penal Code), which is applicable to the case of Mu Sochua against the Prime Minister. It reads: “Any bad faith allegation or imputation of a given fact which harms the honor or reputation of an individual is a defamation. The original publication or reproduction of the allegation or imputation is punishable, even if it refers to a person who is not explicitly named but whose identity is made evident from the defamatory speech, shout, threat, writing, printing, sign, poster, or audiovisual dissemination. Any allegation or imputation against a public figure which the author, the journalist, publisher, editor, or producer knows to be false and nevertheless distributes, publishes, writes or circulates with malicious intent is also a defamation.”
The new penal code which will enter into force later this year also contains the act of defamation as defined above, only lowering the penalty range. This proves that movements attempting to decrimilise the act of defamation and remove it from the penal code due its vague terminology remained unsuccessful.
As a background to the case at hand one has to know that Mu Sochua is a member of the largest opposition party (Sam Rainsy Party) and an internationally recognised human rights and women’s rights activist. The origins of the appeal decided by the Supreme Court on 2 June 2010 date back to events in April 2009 when Prime Minister Hun Sen was giving a speech in the Province of Kampot. In the general elections of 2008 Mu Sochua was the only female elected to represent constituents of that Province. In the course of the widely broadcasted speech the Prime Minister was referring to an unidentified female lawmaker of that Province and describing her in a way that is prevalently considered derogatory when used against a Cambodian woman. Mu Sochua and her lawyer Mr. Kong Sam Onn announced a few days later in a press conference that she feels defamed by the Prime Minister’s words and will file a case against him. As a reaction the Prime Minister filed a counter suit alleging Mu Sochua had defamed him by claiming he was referring to her. A defamation case was also filed against her lawyer. As a consequence Mr. Kong Sam Onn faced an investigatory panel of the Cambodian Bar Association because he was accused of having violated the Bar’s professional code of ethics. He was found guilty by the Bar Association and officially resigned as Mu Sochuas’s lawyer in July 2009. Thereafter he wrote a letter of apology to the Prime Minister and joined his party, the Cambodian People Party (CPP). After these reportedly voluntary acts the defamation case against him was withdrawn.
The Phnom Penh Municipal Court dismissed Mu Sochuas’s complaint but at the same time convicted her in August 2009 for defamation based on the Prime Minister’s assertions. Mu Sochua unsuccessfully appealed both decisions. While her case was finally thrown out, the Appeals Court in October 2009 upheld the verdict of the lower court ordering her to pay approx. 4000 US$ in compensation and fines. She then filed an appeal to the Supreme Court which again was rejected in early June this year. Mu Sochua repeatedly announced to refuse to pay the fine but rather go to jail, a procedure unknown in Cambodian criminal law. She stands firm on this position until now and has filed a petition to the United States asking President Barack Obama to intervene in her case and condemn the judgement whereas PM Hun Sen’s lawyer is pushing the Court to enforce the verdict. Just a few days ago she was officially requested to pay the fine within two weeks. It is thus to be awaited if the dispute between Mu Sochua and the Prime Minister continues.
I may refer those who are interested in a more in depth analysis of the case to the page of the Cambodian Center of Human Rights, available at: www.cchrcambodia.org.
Julia-Pia Schütze