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[justinm at ucr.edu]

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CAMBODIA: Unlawful arrest of a newspaper editor in Phnom Penh

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-134-2008

By - Asian Human Rights Commission - Urgent Appeals
URL: http://www.ahrchk.net/ua/mainfile.php/2008/2900/

11 June 2008
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CAMBODIA: Unlawful arrest of a newspaper editor in Phnom Penh

ISSUES:  Freedom of expression and information; administration of justice
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Dear friends,

The Asian Human Rights Commission (AHRC) is deeply concerned that Dam
Sith, the editor of Moneaksekar Khmer newspaper, was arrested on
charges of alleged defamation, insult and disinformation on 8 June
2008. Dam has been facing a criminal lawsuit after his newspaper
published an opposition politician's remarks about the Khmer Rouge
affiliation of a government minister in April 2008.

CASE DETAILS: (Sources: Ms Meas Chan Kanha, Dam Sith's wife; Pech
Norak, Moneaksekar Khmer Newspaper; Chou Chung Ngy, Dam Sith's defence
lawyer)

On Sunday, 8 June 2008 at around 11:30am 10 military police officers,
some in uniform and the others in plain clothes, arrested Dam Sith,
39, editor of the Moneaksekar Khmer (Khmer Conscience) newspaper, at a
car wash named Meas Sitha, in Tuol Sanke commune, Tuol Kok district,
in Phnom Penh. Dam was taken to the Military Police Headquarters in
Tuol Kok for questioning. At around 3pm he was brought before the
Municipal Court of Phnom Penh.

In court, after questioning Dam in the presence of his lawyer late
that afternoon, the investigating judge, Chhay Kong, issued an order
to remand him in custody at Prey Sar prison on the outskirts of Phnom
Penh for pre-trail detention. The judge's reasons for Dam's pre-trial
detention were (1) to prevent any harassment of witnesses or victims
or prevent any agreement between him and any accomplice; and (2) to
guarantee his appearance in court. He was charged with alleged
defamation, insult and disinformation.

Dam's arrest followed a criminal lawsuit against him filed on 25 April
by Hor Nam Hong, current Cambodian Foreign Minister following his
newspaper's publication, in its 18 April 2008 issue, of the remarks
made by Sam Rainsy, leader of the opposition Sam Rainsy Party (SRP)
about the Khmer Rouge affiliation of two current government ministers.
Sam had made these remarks the day before at a religious ceremony
commemorating the death of nearly two million people under Pol Pot's
Khmer Rouge regime between 1975 and 1979. Dam's newspaper subsequently
published stories related to the same remarks and a criminal lawsuit
filed by a concerned minister against Sam.

In its 18 April issue, Moneaksekar Khmer wrote, among other things,
that  "Mr. Sam Rainsy said further that there are at least a senior
minister and a deputy prime minister of the current ruling party who
used to be Pol Pot's secretary and advisor-interpreter. Mr. Sam Rainsy
added that now Pol Pot's advisor and secretary, Mr. Keat Chhun, is
(current) senior minister of economics and finance, and another
person, Mr. Hor Nam Hong, (current) deputy prime minister and minister
of foreign affairs, used to be head of (Khmer Rouge) Boeung Trabek
prison (in Phnom Penh). Being head of Boeung Trabek prison, he (Sam
Rainsy) continued, was not just by chance. It required the appointment
by the Khmer Rouge to be head of Boeung Trabeck prison as the head of
that prison had a lot of power. That was why they (people in the
government) did not want the trial of those Khmer Rouge leaders
(alluding to the government's repeated delays in organising that
trial). They feared Khieu Samphan (a Khmer Rouge leader now awaiting
trial) would denounce them. That was why they let the aged Khmer Rouge
leaders die naturally so as to prevent them from speaking the truth."

Hor Nam Hong, and not Keat Chhon, filed a criminal lawsuit against Sam
Rainsy on 22 April and also against Dam Sith for defamation and
disinformation a few days later, on 25 April. On 5 June Dam went to
testify as summoned by the court and on 8 June he was arrested and
remanded in custody to Prey Sar prison. Sam Rainsy, a Member of
Parliament, has neither testified in court as summoned nor been
arrested.

BACKGROUND INFORMATION:

Moneaksekar Khmer newspaper is widely known to be supportive of the
opposition Sam Rainsy Party (SRP). It is very critical of government
policies, corruption and land grabbing by the rich and powerful. Dam
stands in the forthcoming general election to be held on 27 July 2008,
as an SRP candidate for Phnom Penh constituency. Dam had faced such a
law suit before in September 2006 for exposing alleged corruption of
another deputy prime minister (see UA-313-2006).

There is no freedom of the press in Cambodia. Although there has been
no lawsuit against journalists for defamation and disinformation for
some time, there has still been threats and intimidation against
journalists, bans on publications or confiscation of newspapers (see
AHRC-UAU-022-2008). On 28 May 2008 the ministry of information
cancelled the license granted to a private radio station broadcasting
in Kratie province for the sale of its airtime to political parties.

Apart from the court case against the SRP leader, there is another
court case pending at the Supreme Court in which another opposition
politician, Prince Norodom Ranariddh, leader of yet another self-named
Norodom Ranariddh Party, is appealing against his conviction by the
Municipal Court of Phnom Penh and the Appeal Court for alleged breach
of trust over the management of the assets his former party,
FUNCINPEC. Ranariddh has been living in exile since the beginning of
the case against him. FUNCINPEC is an ally of the ruling Cambodian
People's Party in the current coalition government.

Ranariddh is Prime Minister Hun Sen's arch enemy. Due to this enmity
and the executive control of the judiciary, there are allegations that
the delay in the Supreme Court's hearing of his case is meant to
prevent Ranariddh from returning to Cambodia and compete in the July
election.

A characteristic feature of the Cambodian judicial system is judicial
inquiry whereby criminal investigation is conducted by judges called
investigating judges. The police bring a suspect to the prosecutor who
decides whether to lay any charge against him or her. If so, and if
the case requires further investigation, the prosecutor sends the case
and the accused person to an investigating judge for investigation.
This judge then decides whether to remand the accused person in
custody awaiting trial (pre-trial detention). Investigating judges can
delegate their power to the police to conduct investigation, but not
to interrogate accused persons.

ADDITIONAL COMMENTS:

The Asian Human Rights Commission (AHRC) is of the view that there are
no legal grounds for Dam's arrest and detention. In the first place,
Moneaksekar Khmer's alleged defamatory publication is, if proven, but
"false information or imputation" against a "public figure" which the
Cambodian Press Law of 1995 (Article 10) treats as "libel" and
prohibits. But this law is silent whether libel is a criminal offence.
It provides, though, for civil action to get the court to order the
press to publish a retraction or pay compensation, or both, on top of
the right of the person whose honour or dignity is harmed by false
publication to reply, demand retraction form the press and sue it for
defamation, libel or humiliation.

However, the Cambodian criminal law, commonly known as UNTAC Law,
provides for no such specific criminal offences as libel or
humiliation. This law provides for defamation and insult which are
punishable by a fine but no custodial sentence. According to the
Cambodian Code of criminal Procedure (Article 204), without any charge
of a crime punishable by imprisonment for one year or more, a person
cannot be detained. Dam Sith's detention is therefore unlawful. It is
illegal confinement which is punishable by imprisonment for between 3
and 10 years (UNTAC Law, Article 35).

Apparently, the plaintiff and the investigating judge wanted to lock
Dam up so they have charged him with disinformation, which is a
practice after the removal of a custodial sentence was removed from
defamation and insult in 2006. Disinformation is punishable by
imprisonment between 6 months and 3 years.

However, when ordering Dam's pre-trial detention, the judge ignored
one of the constitutive elements of the crime of disinformation
stipulated under Article 62 on this crime of the UNTAC Law. This
article says that the publication, distribution or reproduction (of
information which is false, fabricated, falsified or untruthfully
attributed to a third person) "has disturbed or is likely to disturb
the public peace".

The judge ignored that from the date of the publication of Sam
Rainsy's remarks, that is, from 18 April 2008 until the date of Dam
Sith's arrest, in Phnom Penh or elsewhere in Cambodia, no "public
peace" was "disturbed" in the first, and least of all, there was no
disturbance whose cause could be attributed to that publication. The
charge of disinformation is groundless.

Dam's detention on this groundless charge is not simply a violation of
the general principle of granting freedom to accused persons as
clearly spelled out in the same criminal procedure code (Article 203),
but is itself unlawful.

Dam Sith's arrest and detention came at a time when preparations for
the July election were underway. It can only further compromise this
election which has already been marred by the criminal court cases
involving two opposition leaders, Sam Rainsy and Ranariddh, and by a
series of obstructions to and violence against non-ruling parties.
According a group of civil society organizations, during the period of
January 2008 - May 2008, there were five cases of political killings,
21 cases of harassment of and threat against party activists and 15
cases of dismantling of party banner signs.

The AHRC is therefore of the view that Dam Sith's arrest and detention
are unlawful, violate the constitutional right to press freedom, and
comes to mar further the election whose campaign has already been
under way.


SUGGESTED ACTION
Please write your letters to the authorities listed below to urge them
to immediately release Dam Sith from detention.

The AHRC has also written to the UN Working Group on arbitrary
detention and the Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression for their
intervention in this case.

To support this appeal, please click here:

Sample letter:

Dear ________,

CAMBODIA: Unlawful arrest of a newspaper editor in Phnom Penh

Name of victim: Dam Sith, 39, No. 19A, Street 293, Boeung Kak II
commune, Tuol Kok district, Phnom Penh.
The unit who arrested him: The Military Police of the Municipality of Phnom Penh
The court who issued order for his detention: Judge Chhay Kong of the
Municipal Court of Phnom Penh
Date and place of his arrest: At 11:30am on 8 June 2008 in Tuol Sanke
commune, Tuol Kok district, in Phnom Penh

I am deeply concerned over the arrest of Dam Sith, the editor-in-chief
of Moneaksekar Khmer newspaper on 8 June 2008 in Phnom Penh and his
subsequent detention in Prey Sar prison on the outskirts of Phnom
Penh.

I have learned that the arrest was made following a criminal lawsuit
filed on 25 April 2008 by Foreign Minister Hor Nam Hong in the
Municipal Court of Phnom Penh. Hor filed this suit against Dam for
alleged defamation, insult and disinformation following Moneaksekar
Khmer's publication of the remarks made by an opposition leader named
Sam Rainsy about Hor's affiliation with the odious Khmer Rouge regime.
According to Sam Rainsy, Hor was head of Khmer Rouge Boeuing Trabek
prison in Phnom Penh.

However, based on the Cambodian Press Law of 1995, I find no grounds
for Dam's arrest and detention. In the first place, the alleged
defamatory publication is, if proven, but "false information or
imputation" against a "public figure" which that law treats as "libel"
and prohibits. But defamation and insult which also cover libel are
punishable by a fine only, not by any custodial sentence. Without any
charge of a crime with custodial sentence, a person cannot be
detained. Dam Sith's detention is therefore unlawful and is illegal
confinement.

The charge of disinformation was invoked apparently to have a ground
to lock Dam up since disinformation is punishable by imprisonment. But
there is no ground for this charge when the publication had not
disturbed public peace and there had been no evidence it would do so,
as required for this charge under UNTAC Law (Article 62), from the day
of that publication to Dam's arrest. The charge of disinformation is
also unlawful.

Dam's unlawful arrest and detention have seriously compromised press
freedom in Cambodia. They have further added more blight to the
general election to be held in the coming month of July, an election
which has already been marred by obstructions to and violence against
non-rulings, and also by court cases against prominent opposition
leaders.

I therefore urge you to release Dam Sith immediately.

I trust you would favourably consider my request.

Yours sincerely,

-------------------
PLEASE SEND YOU LETTERS TO:

1. Mr. Hun Sen
Prime Minister
Cabinet of the Prime Minister
No. 38, Russian Federation Street
Phnom Penh
CAMBODIA
Fax: +855 23 36 0666
Tel: +855 2321 9898
Email: cabinet1b at camnet.com.kh

2. Mr. Sar Kheng
Deputy Prime Minister
Minister of Interior
No.275 Norodom Blvd., Phnom Penh
CAMBODIA
Fax/phone: +855 23 721 905 / 23 726 052 / 23 721 190
Email: info at interior.gov.kh

3. Mr. Tea Banh
Deputy Prime Minister
Minister of National Defence
Russian Federation Street
Phnom Penh
CAMBODIA
Tel: +855-23 883184 / 428171
Fax: +855-23 883184
E-mail: info at mond.gov.kh

4. Mr. Ang Vong Vathna
Minster of Justice
No 240, Sothearos Blvd.
Phnom Penh
CAMBODIA
Fax: +855 23 36 4119 / 21 6622
Email: moj at cambodia.gov.kh

5. Mr. Henro Raken
Prosecutor-General
Court of Appeal
No 240, Sothearos Blvd.
Phnom Penh
CAMBODIA
Fax: +855 23 21 66 22
Tel: +855 11 86 27 70

6. General Hok Lundy
National Police Commissioner
General-Commissariat of National Police
Phnom Penh
CAMBODIA
Fax: +855 23 22 09 52
Tel: +855 23 21 65 85

7. General Sao Sokha
Commander
Military Police
Mao Tse Tung Blvd
Khan Tuol Kok
Phnom Penh
CAMBODIA
Tel: +855 12 36 3636

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua at ahrchk.org)

______________
Dr. Justin McDaniel
Dept. of Religious Studies
3046 INTN
University of California, Riverside
Riverside, CA 92521
951-827-4530
justinm at ucr.edu