Whether it’s Sam Rainsy accusing the state of orchestrating a murder, a labor activist tossing a sandal at a ruling party billboard or a member of a government-branded “terrorist” group holding a news conference—the charge of “incitement” is rarely out of the Cambodian courts.
In Takeo province earlier this week, six CNRP commune election candidates were questioned in court over a dispute at a ruling-party campaign rally ahead of last month’s commune elections. After a confrontation between the two parties’ supporters, which was recorded on video, authorities accused the opposition candidates of public insult, public defamation and “incitement to commit a felony.”
While it’s possible to divine the reference to alleged insult and defamation charges—an opposition supporter calls a CPP supporter “stupid” in the video footage—it is more difficult to discern whom the six accused candidates had supposedly incited, and what they may have been incited to do.
In theory, incitement charges are about encouraging others to commit a specific crime. But in practice, some legal and political analysts say, the charges have been turned into a blunt instrument for persecuting government critics.
“Incitement has become a catch-all in Cambodia,” said Sophal Ear, a policy analyst and author of “Aid Dependence in Cambodia: How Foreign Assistance Undermines Democracy.”
“It’s become the go-to charge for whenever anyone with the backing of authorities or the authorities themselves want to whip together some reason to haul someone into court.”
Billy Chia-Lung Tai, a human rights and legal consultant previously based in Phnom Penh, agreed that the charges were often being utilized to muzzle dissenting voices.
“It has proven to be a very useful and effective tool to shut down opposition (and by opposition, I mean everyone that is acting against the government’s own interest, not restricted to the CNRP itself) and ‘legitimately’ imprison them if their actions warrant such a ‘punishment,’” Mr. Tai said in an email.
“The government has been able to get away with waving a piece of random paper…in front of the press, charging and sometimes convicting opposition actors with ‘incitement’ charges, put them in pre-trial detention for months and sometimes years,” he added.
Under the Criminal Code, incitement refers to a slew of specific charges, the most common among them being incitement to commit a felony and “incitement to discrimination.”
Incitement to commit a felony is defined as directly inciting others “to disturb social security.” The incitement can happen by “speech of any kind in a public place or meeting,” writing or drawing a picture either displayed or distributed to the public, or any audio-visual communication to the public, it says. The crime carries a prison sentence of between six months and two years.
Incitement to discriminate, meanwhile, outlaws the inciting of malice or violence “against a person or a group of persons because of their membership or nonmembership of a particular ethnicity, nationality, race or religion.” The charge can see offenders jailed from one to three years.
Incitement to commit a felony has been used in a number of high-profile cases, including one against 26-year-old student Kung Raiya, who was sentenced to 18 months in prison last year after calling for a “color revolution” on Facebook.
Mr. Raiya’s incarceration was widely slammed by rights groups, but the case appeared to at least fit the crime’s definition to a greater extent than the case against Horn Sophanny. A member of the Independent Monk Network for Social Justice—known for its anti-government rhetoric—he was charged with incitement to commit a felony last month after a photo surfaced on Facebook of him playing with what the group claimed was a plastic gun.
The group’s leader, But Buntenh, said at the time that authorities were “using power and the law to suppress” their own people.
Meanwhile, the incitement to discriminate charge has regularly been used against opposition officials.
Former CNRP President Sam Rainsy’s latest exile in 2015 came after an arrest warrant was issued over convictions for public defamation and incitement to discrimination four years earlier over comments he had made in 2008 alleging that then-Foreign Affairs Minister Hor Namhong was implicated in crimes at a Khmer Rouge prison camp.
CNRP lawmaker Um Sam An was found guilty of incitement to discrimination in October and sentenced to two years for repeatedly taking to Facebook to accuse the government of using the wrong demarcation maps with Vietnam.
Even trivial anti-government stunts by members of the public have been deemed to be inciting discrimination.
Last Tuesday, an arrest warrant was issued for a labor activist wanted for questioning after a video was uploaded to Facebook in April of her throwing her sandal at a CPP sign featuring Prime Minister Hun Sen.
What ethnic, national, racial or religious group the activist was inciting discrimination against is unclear.
According to Mr. Tai, the rise of Facebook in Cambodia in recent years has opened the door to more incitement prosecutions, driven by the ruling party’s fear of the freedom Facebook offers its users to disseminate information and opinions.
“It would not surprise me if some in government are ruing the fact that they didn’t follow China’s lead and ban Facebook from the beginning. It would now of course be impossible to do so, as I think this would be the one thing that can bring down the current government if they attempt it,” he said.
“So perhaps the strategy is to make sure the arrests and prosecution serves as a strong warning for others who might be a bit ‘loose’ in their Facebook posts,” he said.
Government spokesman Phay Siphan maintained that courts were independent of the ruling party’s control but said the public should be careful with their words.
“You have to understand what an analyst is. They have the right to say anything but not accuse people in public. It’s an abuse of the law,” Mr. Siphan said, adding that he believed tossing a shoe at a CPP sign constituted incitement.
“The government, in this stage, we encourage the people to criticize—not insult, not harass,” he added.
Justice Ministry spokesman Chin Malin said not all activities were considered incitement.
In order for an alleged offense to be considered incitement, there needs to be a relevant article in the code, the events in question need to have transpired as described in the law—such as a suspect having incited others to disturb social security—and there needs to have been intention to do so, Mr. Malin said.
He added that people were able to exercise freedom of speech so long as there was no “ill intentions.”
“I believe that those analysts with professionalism and [who] have their analyses based on research with scientifically clear studies, clear data…this kind of analyst has nothing to be worried about,” he said.
“But those who should be worried are the analysts with political intentions and with ill intentions.”
However, Mr. Ear said he believed the implementation of the incitement laws were somewhat one-sided.
Mr. Hun Sen regularly delivers firebrand speeches aimed at the opposition and dissenters. Less than two weeks ago, he threatened to kill hundreds to stay in power and appeared to tell Mr. Rainsy to “prepare your coffin.”
“If anything can incite, then incitement has lost all meaning. There are many instances of incitement from those who are most experienced at accusing others of incitement. It’s always do as I say, not as I do,” Mr. Ear said.
“It’s been abused, certainly, by those who have power over the courts to make them bend over backwards to do their bidding. If someone is offended, that is not incitement. If someone feels aggrieved, that is not incitement,” he said.
There was no doubt the ruling party was pulling the judicial strings, Mr. Tai said, adding that it was up to the international community to decide how to react.
“The question is not really ‘are they using the laws correctly,’ but rather to acknowledge that they are happily and wilfully ignoring the rule of law in the pursuit of persecuting opposition actors,” he said.
“The question then becomes ‘what should the international community do (if anything) in response of that?’”
(Additional reporting by Ouch Sony)
© 2017, George Wright. All rights reserved.