‘Stealth Clause’ Used Against Cambodian Press

Those who were with him on Oct 11 say that Mam Sonando, own­er and director of Beehive 105 FM Radio, knew he was go­ing to be arrested.

A defamation lawsuit had been filed against him on behalf of Prime Minister Hun Sen and police had surrounded his home ov­er­­­night. By the time Mam So­nan­do left his home in Kien Svay district, Kandal province, early the next morning, police were ready.

Flanked by officers at Phnom Penh Municipal Court, Mam So­nando was charged under criminal law with defaming Prime Min­ister Hun Sen, rather than under the press law, in which defamation is a common misdemeanor.

But for journalists to face char­ges of criminal defamation under the anachronistic UNTAC laws of the early 1990s is par for the course, if past defamation cases against journalists are an indication.

When Mam Sonando was im­prisoned under pre-trial detention, the government defended his treatment, saying the radio sta­tion owner had not fulfilled his journalistic obligations and had not properly balanced an interview that was critical of Hun Sen’s record on border issues.

“He did not ask for the government’s side,” Information Minis­ter Khieu Kanharith said Tues­day. “This is the ABCs of journalism.”

In jailing Mam Sonando, the gov­­ernment did not attack freedom of expression, Khieu Kan­ha­rith said. “Journalists cannot be above the law,” he said.

“I don’t want to see any journalists in jail,” he added, “but I want them to be professional.”

According to Sok Sam Oeun, executive director of the Cam­bo­dian Defenders Project, only two journalists have been jailed in Cambodia since 1993 after being con­victed of defamation.

In late 1994, the opposition news­paper Voice of Khmer Youth ran an opinion piece entitled, “Ran­ariddh is More Stupid than Hun Sen Three Times a Day.” The Ministry of Information acted quickly, charging the pa­per’s editor, Yim Sokha, with de­famation under the UNTAC laws.

In February 1995, the municipal court sentenced him to one year in jail, the first time a journalist had been sentenced to prison for defamation under the law.

A short time later, Hen Vip­heak, editor of the opposition pa­per New Liberty News, was also charged with defamation and han­ded the same sentence.

There was no press law at the time that Yim Sokha and Hen Vipheak were sentenced. They appealed all the way to the Su­preme Court, and in the interim, a draft press law was presented to the National Assembly for de­bate.

Under the draft law, defamation and libel were still considered criminal acts punishable by pri­son sentences.

The law also contained sweeping statements forbidding the publication of material that could affect national security or political stability, or humiliate “national in­stitutions.”

On July 18, 1995, the Assembly approved the law after removing all references to prison sentences, though references to national security, political stability and na­tional institutions remained.

However, Article 20, which was described by legal experts as a “stealth clause,” was included.

Article 20 states that “any act committed by an employer, editor or author of a text which violates the criminal law shall be pu­nished according to the criminal law.”

Though the press law had come into effect by the time Yim Sok­­ha’s and Hen Vipheak’s cases had reached the Supreme Court, the court upheld the municipal court’s ruling under UNTAC law.             Legal experts say that decision paved the way for future defamation cases to sidestep the press law and be treated as criminal cases.

Over the past 10 years, almost all charges against journalists have been brought under the UNTAC law, which is entirely legal because of Article 20.

Reporters Without Borders last week released a report ranking the state of Cambodia’s press freedom higher than that of all of its neighbors, and even than In­dia’s.

But an official with the organi­za­tion admitted that Cambodia’s rel­atively high ranking was awar­d­­ed before Mam Sonando’s ar­rest, adding that recent events would affect next year’s ranking.

Khieu Kanharith said times have changed since Yim Sokha and Hen Vipheak were charged and imprisoned in 1995.

Ultimately the court will decide what will happen to Mam Sonan­do, Khieu Kanharith said, adding that he doesn’t expect the radio broadcaster to be treated the same way as the two previously jailed journalists.

“The context is quite different,” he said.

“Today’s journalists are better. And the government accepts criticism better than before.”