Re: Draft Penal Code: Criminal defamation

Re: Draft Penal Code: Criminal defamation

To: H.E. Samdech Hun Sen, Prime Minister, and others

From: Catherine Morris, Member of LRWC

Date: 2006-05-02

LRWC welcomed news earlier this year of the withdrawal of complaints under Article 63 of the UNTAC law against a number of individuals, including Mr. Yeng Virak, Mr. Kem Sokha, Mr. Pa Nguon Teang, Mr. Rong Chhun, Mr. Mam Sonando, Mr. Chea Mony, Mr. Ea Channa, Mr. Men Nath, Prince Sisowath Thomico, and Dr. Say Bory.

We also welcomed the news of the decision of the Council of Ministers on April 21, 2006, to amend Article 63 of the UNTAC (United Nations Transitional Authority in Cambodia) law to remove imprisonment as a penalty for the offence of defamation. However, we also recall the Prime Minister’s welcome statement on February 13, 2006, that defamation cases should be tried in civil, not criminal, courts and that compensation is the appropriate solution for victims of defamation.

We understand that the draft Penal Code currently contains offences of defamation and insult. Therefore, in light of the Prime Ministers welcome statement of February 13, 1006, we urge the Council of Ministers of Royal Government of Cambodia to take immediate steps to amend the draft Penal Code to bring it into line with the Prime Ministers statements and with international standards.

The fact that these two Codes are currently in the draft stages, and the international technical assistance from France and Japan means that the Royal Government of Cambodia now has an opportunity to take leadership in the region and internationally by creating new legislation that meets the highest contemporary international standards. There is a growing international consensus that criminal defamation laws should be abolished in all jurisdictions and replaced with civil laws. The United Nations Special Rapporteur on Freedom of Expression has stated that criminal defamation is not justifiable as a restriction on freedom of expression, and he has urged the abolition of all criminal defamation laws and replacement where necessary with civil defamation laws. Civil defamation laws are now internationally considered to be adequate to provide persons with appropriate protection from defamation. In addition, it is now considered important that public bodies and officials be prohibited from bringing defamation actions. Public officials in democratic societies are expected to tolerate public criticism. Public officials also have the means to protect their reputations by means of engagement in public debate about government policies and actions, and through access to public media.

We further suggest that abolition of criminal defamation laws is essential for all states who have made commitments to implement international standards of freedom of expression. We note that Cambodia has so committed, since it is a State Party to the International Convention on Civil and Political Rights and is thus bound to implement Article 19 on freedom of expression. Article 41 of Cambodia’s Constitution guarantees the right of freedom of expression, press and publication.

LRWC respectfully requests your early response to this letter. We thank you for your urgent attention to these matters.