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Cablegate: Cambodia's Long-Awaited Penal Code Under Review

VZCZCXRO5087
PP RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #0746/01 2810551
ZNR UUUUU ZZH
P 080551Z OCT 09
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC PRIORITY 1250
INFO RUCNASE/ASEAN MEMBER COLLECTIVE

UNCLAS SECTION 01 OF 02 PHNOM PENH 000746

SENSITIVE
SIPDIS

STATE FOR EAP/MLS

E.O. 12958: N/A
TAGS: PGOV PHUM PREL KJUS CB
SUBJECT: CAMBODIA'S LONG-AWAITED PENAL CODE UNDER REVIEW

REF: A. PHNOM PENH 745
B. PHNOM PENH 575

SENSITIVE BUT UNCLASSIFIED

1. (SBU) SUMMARY: The National Assembly approved the general
content of the 672-article Penal Code on October 1, paving
the way for chapter-by-chapter debate which is expected to
take two weeks. The Cambodian People's Party (CPP) majority
denied opposition Sam Rainsy Party's (SRP) initial request to
amend several articles to provide more clarity on the
definition of and punishment for some offenses, including
defamation and incitement. Given that CPP officials have
predicted a swift approval process, the focus will soon shift
to proper implementation of this law, and future passage of
the often-connected Anti-Corruption Law. END SUMMARY.

2. (U) The National Assembly resumed its session Oct 1
following a three month recess and opened debate on the draft
Penal Code, approved by the Council of Ministers in June.
The draft Penal Code, created with technical assistance from
French legal experts and based on accepted international
legal templates, is intended to replace the sparse 1992 law
passed by the United Nations Transitional Authority in
Cambodia (UNTAC) and its progeny. During the opening
session, twelve lawmakers from the SRP made an initial call
for amendments to 43 of 672 articles, but CPP
parliamentarians opposed the proposed amendments on the
grounds that they were inconsistent with parliamentary
regulations for general debate.

DEFAMATION AND OTHER CONCERNS
-----------------------------

3. (SBU) Opposition parliamentarians, local and international
NGOs, and other observers have stated that the draft is an
improvement over the current law, but remain concerned about
what some see as excessive restriction on freedom of
expression. Significantly, it appears that the existing
crime of "disinformation" -- charged in several recent cases
(Ref A) -- no longer exists. But several articles make both
defamation and insult a crime, reversing a 2006 statement by
Prime Minister Hun Sen that defamation would be excluded from
the new law. Observers worry that the definition of
defamation and insult is overly broad and could be easily
abused if not implemented properly. According to the United
Nations Office of the High Commissioner for Human Rights
(UNHCHR), the draft Penal Code has the potential to be more
restrictive of freedom of expression than the old UNTAC
criminal provisions and includes a number of new crimes, such
as "falsification of information," "public insult,"
"slanderous denunciation," "insult and resistance to public
officials," "publication of any commentaries to put pressure
on the judiciary," and "discrediting the court decision.8
Some articles make it a crime to publicly insult the king and
judges, and still others criminalize both incitement of
insurrection, as well as promoting a gathering of those
likely to be involved in insurrection. The UNHCHR and human
rights NGOs such as Article 19 recommend that the defamation
rules should be eliminated or fully decriminalized, special
protection for the King and judges should be removed, and
privacy rules should be civil rather than criminal.

4. (SBU) SRP challenged several such articles during the
chapter-by-chapter debate period which began Oct 2, and which
is expected to take two weeks. To date, its challenges have
been dismissed. Articles related to defamation, insult and
exaggeration of information were passed by a vote of 82-21
October 5. A Ministry of Justice official explained to the
Assembly that the "limitations on the rights of citizens" in
the new penal code are necessary to "respect one another and
ensure social security, public order and the dignity of all
members of society." He emphasized that the new defamation
penalties have been reduced in comparison to the 1992 UNTAC
codes.

5. (SBU) Anti-Trafficking in Persons (TIP) organizations have
also expressed concern regarding elements of the draft Penal
Code that relate to the provisions on procurement of
prostitution. The 2008 Law on the Suppression of Human
Trafficking and Sexual Exploitation prescribes prison
penalties for all types of procurement offenses. Articles
284-293 of the draft Penal Code add financial penalties to
these potential punishments. One of the general fundamentals
of the draft Penal Code (Article 97) states that, where an
offense is punished concurrently with a prison term and a
fine, the court may pronounce a ruling of either a prison
term and a fine concurrently, a penalty for a prison term
only, or a fine only. The effect of this article is that the
court may impose a fine instead of a prison sentence in some

PHNOM PENH 00000746 002 OF 002


cases where both are possible, which could reduce the
deterrent for perpetrators of trafficking offenses if
interpreted in such a fashion.

6. (SBU) Although many provisions remain open to broad
interpretation, such as Article 305 Public Defamation which
includes the confusing concept of "bad faith," others are
quite explicit and have been welcomed by critics. Article
306 Defamation Via Media clearly states that "defamation
committed by means of media is subject to the provisions of
the press law." According to the supporting paragraph,
written media as well as broadcast media will have the same
level of protection. The 1995 Press Law is a civil law which
protects journalists' freedom of expression and opinion.
Defamatory reporting in the media will therefore be
considered only a civil action rather than criminal once the
Penal Code is enacted. Media is currently subject to both
the UNTAC Criminal provisions and the Press Law, with the
criminal charges prevailing in many cases such as that of
Hang Chakra (Refs A & B). That is set to change.

PAVING THE WAY FOR ANTI-CORRUPTION LAW
--------------------------------------

7. (SBU) Officials have long stated that passage of a new
Penal Code was a prerequisite to the heavily anticipated
Anti-Corruption Law, which donors have insisted on and the
government has promised for more than ten years. Minister of
Justice Ang Vong Vathana noted that the draft Penal Code also
covers corruption committed by civil servants and court
officers. The Secretary General of the Council for Legal and
Judicial Reform (CLJR) indicated at an October 5 Technical
Working Group (TWG) that the Anti-Corruption Law will be the
next priority after the Penal Code is passed. He further
stated that the draft Anti-Corruption Law is expected to be
submitted to the National Assembly by the end of the year,
with passage in early 2010. Development partners at the TWG
registered disappointment that the draft Penal Code in its
final form was not circulated for comment before being sent
to the National Assembly and asked for the opportunity to
comment on the draft Anti-Corruption Law, which has not been
made available since 2006. The Secretary General
subsequently agreed to send the draft law to all members of
the TWG.

COMMENT
-------

8. (SBU) A new penal code to replace the UNTAC-era
legislation has been in various stages of draft since 1994.
Cambodia currently prosecutes crimes under a confused mixture
of old laws and the UNTAC codes, which were always meant to
be transitional. The majority of stakeholders agree that the
latest draft Penal Code, which was prepared with substantial
assistance from French legal experts, is a significant
improvement over the current system in several respects. But
in Cambodia, passage of a new law -- however welcome -- is
only the first step. The focus of the government must now
turn to proper implementation of the law to assure critics
and others that the international standards reflected in the
law are realized in practice.

ALLEGRA

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