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Recommendations on free expression, other rights submitted to new Cambodian government

On 10 September 2013, the Cambodian Center for Human Rights ("CCHR") released a Briefing Note calling on the new Royal Government of Cambodia ("RGC") to address a number of pressing concerns related to the situation of human rights and democracy in the Kingdom of Cambodia ("Cambodia"). It aims to encourage the new RGC to address these important issues as a priority at the start of the Fifth Mandate National Assembly.

The Briefing Note addresses nine key issue areas where reform is urgently needed, including freedom of expression, freedom of the press, the electoral process, parliamentary procedures and governance reform, women's political representation, the judiciary, discrimination based on sexual orientation and gender identity, land rights, and immigration processes, in addition to recommending the establishment of an independent National Human Rights Institution.

An excerpt from the Briefing Note, highlighting the areas of freedom of expression and media reform follows.


Recommendations for reform for the new Royal Government of Cambodia

Executive summary

This Briefing Note calls on the new Royal Government of Cambodia ("RGC") to address a number of pressing concerns related to the situation of human rights and democracy in the Kingdom of Cambodia ("Cambodia"). It aims to encourage the new RGC to address these important issues as a priority at the start of the Fifth Mandate National Assembly.

This Briefing Note recommends ten key areas of reform:

1. Establishing an independent National Human Rights Institution, in accordance with the Paris Principles;
2. Guaranteeing freedom of expression and protecting non-governmental organization ("NGO") workers and human rights defenders ("HRDs") from harassment;
3. Supporting the establishment an independent media by removing restrictive content-based legislation, opening up media licenses and creating an independent media body;
4. Reforming the electoral process by improving procedures and ensuring transparency and independence in order to restore confidence in the National Election Committee ("NEC");
5. Implementing key parliamentary and governance reforms to strengthen democracy;
6. Increasing women's political representation by introducing a quota system for elections and undertaking leadership capacity-building measures for women;
7. Undertaking judicial reform by enacting and amending legislation codifying judicial systems and procedures, evaluating the use of pre-trial detention and Judicial Supervision Orders, and, implementing guidelines for dealing with juveniles;
8. Implementing legislation to prohibit discrimination on the grounds of sexual orientation and gender identity;
9. Protecting land rights by enforcing the Land Law, prohibiting the forced eviction of people from their land, and eliminating harassment of land rights activists; and
10. Clarifying and enforcing immigration laws, without resorting to racist dogma, in order to ease racial tensions.

By undertaking reform in these areas, the RGC can instill confidence in the mechanisms that are available to maintain a free and fair democracy in Cambodia where protection of human rights is prioritized. This Briefing Note is written by the Cambodian Center for Human Rights ("CCHR"), a non-aligned, independent, NGO that works to promote and protect democracy and respect for human rights - primarily civil and political rights - throughout Cambodia.

Introduction

Article 31 of the Constitution of the Kingdom of Cambodia (the "Constitution") recognizes and respects the Universal Declaration of Human Rights (the "UDHR") and the covenants and conventions related to human rights. Cambodia ratified the International Covenant on Civil and Political Rights (the "ICCPR) and the International Covenant on Economic, Social and Cultural Rights (the "ICESCR") in 1992 making the provisions within the two legally binding upon Cambodia. The fact that the ICCPR and ICESCR are incorporated into Cambodian domestic law was confirmed by a decision of the Constitutional Council dated 10 July 2007, which stated that "international conventions that Cambodia has recognized" form part of Cambodian law.

Generally speaking, the legislative and policy framework in Cambodia is relatively strong: there exist a significant number of laws which seek to protect and promote human rights and the RGC has introduced several strategic plans and policies aimed at mainstreaming human rights. However, there is a noticeable lack of both willingness and capacity on the part of the government to implement these laws and policies.

Although there currently exists several national human rights bodies - the National Assembly Commission on Human Rights, the Senate Commission on Human Rights and the Cambodian Human Rights Committee - these institutions have failed to demonstrate that they are sufficiently autonomous to hold the RGC to account when it comes to its human rights record. In September 2006, Prime Minister Hun committed his government to the creation of an National Human Rights Institution ("NHRI") based on the Paris Principles - a set of principles which have been adopted by the United Nations and which relate to the status an functioning of national institutions for the promotion and protection of human rights. However, there has been little development in this regard. As such, CCHR recommends - in addition to the more specific recommendations outlined throughout the remainder of this Briefing Note - the following:

1. Establish an independent NHRI, in accordance with the Paris Principles, which:
a. Includes a fair and transparent system for selecting membership based on the principle of pluralism so that membership represents all sections of Cambodian society;
b. Incorporates a broad mandate covering the protection and promotion of human rights, with clear powers and sufficient resources for dealing with human rights abuses and discharging its duties effectively;
c. Protects the role of civil society; and
d. Provides a means of complaint for civil society actors who have had their rights to freedom of expression, association and/or assembly violated.

Freedom of expression


Although freedom of expression and freedom of the press are guaranteed under Article 41 of the Constitution, journalists, NGO workers and HRDs are frequently subjected to legal and physical threats and to actions that have instilled a sense of fear and created a climate of self-censorship. A culture of impunity has developed in Cambodia whereby those guilty of harassment are rarely prosecuted or otherwise called to account for their actions.

Attempts to introduce a Law on Associations and Non-Governmental Organizations ("LANGO") have further threatened freedom of expression and freedom of assembly and association. Previous drafts of this law have included onerous requirements on NGOs which would undermine their ability to operate freely and effectively. Finally, despite commitments by the RGC to implement a Freedom of Information Law in 2007, to date no law has been implemented and civil society has thus far been excluded from the drafting process.

Freedom of expression in Cambodia requires better protection. As such, CCHR recommends the following with regards to the reform in this area:

1. Amend articles of the Penal Code which currently restrict freedom of expression by:
a. Decriminalizing defamation under Article 305;
b. Decriminalizing insult of public officials under Article 502 and discrediting of judicial decisions under Article 523; and
c. Clarifying the offense of incitement to commit a felony under Article 495.

2. Stop the harassment of journalists, NGOs and HRDs by
a. Training law enforcement officials in human rights and international principles of proportionality in the use of force; and
b. Making a strong commitment to thoroughly investigate violence or intimidation carried out against civil society actors and to bring perpetrators to justice.

3. Enact a Freedom of Information law which complies with international standards by:
a. Seeking civil society input on the drafting of the law; and
b. Releasing important information in a timely manner whereby public bodies abide by the principle of maximum of disclosure;

4. Guarantee freedom of assembly and association by:
a. Ensuring that, if the LANGO returns to the legislative agenda, civil society is appropriately consulted and that civil society recommendations are incorporated into the draw law; and
b. Providing training to local authorities to ensure that they are aware of the provisions of the Law on Peaceful Assembly and that they do not continue to request letters of permission from civil society organizations that are not necessary under the law.

Media freedom

All 11 Cambodian television stations, most radio stations, and the foremost Cambodian newspapers are either owned or controlled by the Cambodian People's Party ("CPP"). Licenses for traditional forms of media (radio, print and broadcast) are issued on a yearly basis and are subject to stringent levels of control and censorship. The press is subject to unnecessary content-based restrictions imposed by the outdated Press Law 1995, which includes content that "may cause harm to national security and political stability" (Article 12) or that affects "the good custom of society" (Article 14). These are broad concepts, open to a wide number of interpretations that do not form a legitimate basis for restricting the right to freedom of expression under international law. These laws lead to self-censorship and, coupled with concerns over renewal of licenses, encourage many to only report news perceived as favorable to the CPP.

In contrast, internet access in Cambodia has been relatively free. However, in 2012, the RGC announced it wished to introduce a Cyber Law to prevent "ill-willed people...from spreading false information."5 There are serious concerns that efforts will be made to restrict and control the cyber sphere and particularly social media, as internet usage across the country increases.

Steps must be taken to establish an independent media which is free to engage in open discussions and analysis without fear of reprisals. As such, CCHR recommends the following:

1. Stop harassment of journalists and tackle impunity in such cases by:
a. Ensuring that legal cases involving journalists refer to the Press Law and not the more restrictive Penal Code;
b. Repealing content-based offenses in the Press Law and otherwise amending the Press Law to ensure that it upholds press freedom as stipulated in the Constitution;
c. Ensuring that cases of harassment against journalists are duly investigated and that perpetrators are brought to justice

2. Ensure independence of the media by:
a. Ensuring equal access to media for all political parties to ensure free and fair elections take place; and
b. Establishing an independent broadcasting governing body, responsible for licensing and ensuring that media outlets operate freely.

3. Ensure freedom on the internet is upheld by: 6
a. Seeking civil society input on the proposed Cyber Crimes Law;
b. Ensuring that the proposed Cyber Crimes Law does not contain any provisions or vague terms that could be used to stifle freedom of expression online;
c. Refraining from blocking websites unless there are exceptional circumstances and where a court order has first been obtained; and
d. Ensuring internet service providers are not held liable for content generated by others and divulged using those services.

Download the Briefing Note:
cambodia_cchr_reform_agenda_for_new_rgc_sep2013.pdf (446 KB)

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