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Unjustified request: Ministry rejects US-based NGO’s call to repeal law on incitement

Ben Sokhean / Khmer Times Share:
Justice Ministry spokesman Chin Malin leads a meeting of a ministry working group. Ministry of Justice

The Ministry of Justice yesterday rejected a call made by US-based Clooney Foundation for Justice (CFJ) to “repeal” the incitement law and ensure respect for the rights to freedom of expression in the Kingdom.

The reaction comes after CFJ, which advocates for justice through accountability for human rights abuses around the world, on Friday released a statement under the title “TrialWatch Report Documents Misuse of Cambodia’s ‘Incitement’ Law on Conviction of Activist”, claiming political activist Kong Raiya was unjustly convicted.

“CFJ calls on the Cambodian government to repeal or reform Article 495 of the Cambodian Criminal Code and to ensure that any future prosecutions for incitement respect the rights to freedom of expression and a fair trial,” the statement said.

Ministry of Justice spokesman Chin Malin said yesterday that he is aware of the report and labelled the call from CFJ as “politically motivated”, saying it is “unreasonable and has no legal basis”.

“The calls to repeal Article 495 of the Criminal Code are merely an excuse to defend wrongdoing committed by activists under the guise of freedom of expression,” Malin said.

According to CFJ, the court convicted Raiya despite lacking any evidence of wrongdoing and violated his right to freedom of expression under the International Covenant on Civil and Political Rights.

It noted that under a CFJ initiative, the American Bar Association Center for Human Rights monitored the case as part of TrialWatch.

Raiya was convicted and sentenced by Phnom Penh Municipal Court in June to two years in prison on charges of “incitement to commit a felony and committing a misdemeanour” under Articles 494, 495 and 88 of the Criminal Code.

He was arrested on July 9 last year after being accused of urging activists to participate in marking the death anniversary of prominent political analyst Kem Ley, by also wearing t-shirts bearing his image, which was banned by City Hall.

The CFJ also noted the case of a journalist and publisher Ros Sokhet who was also convicted for incitement for Facebook posts critical of Prime Minister Hun Sen and sentenced to 18 months’ imprisonment this month.

Arthur Traldi, a former prosecutor at the International Criminal Tribunal for the former Yugoslavia who co-authored the TrialWatch Fairness Report, said Raiya’s trial should never have happened.

“The prosecution never presented evidence that the defendant intended to incite anyone to engage in criminal activity nor showed how his advertisement, or t-shirts could have had such an effect,” Traldi concluded his assessment. “Based on the trial judge’s and our monitor’s reports, Mr Raiya appears to have been convicted simply for exercising his basic human right to free expression.”

The Fairness Report also concludes that Raiya’s prosecution violated his right to “freedom of expression”, saying his prosecution was “neither necessary nor proportionate”.

However, Malin who is also vice-chairman of the Cambodian Human Rights Committee (CHRC), said Article 495 of the Cambodian Criminal Code does not violate freedom of expression.

“The law is also not different from the law of France, our legal team took the French model to make this law with the help of French legal experts,” he said.

“Therefore, I understand that this proposal has a political character rather than a legal technical aspect. But if those groups have real legal experts, we would be happy and welcome to talk about how to improve our Criminal Code.”

Malin said eliminating the Article will lead to “anarchy and encourage arbitrary and irresponsible expression”, affecting social security, public order and individual freedoms.

“If they do not want to face the law again, they should stop doing illegal acts under the guise of freedom of expression, rather than criticising and demanding for change or repeal this law,” he added.

According to the Criminal Code, Article 495 states that the direct incitement to commit a felony or disturb social security shall be punishable by imprisonment from six months to two years and a fine from $250 to $1,000.

Article 494 of the Criminal Code describes incitement as by “speech of any kind, made in a public place or meeting”, “writing or picture of any kind, either displayed or distributed to the pubic” and “any audio-visual communication to the public.”

Soeng Sen Karuna, senior investigator and spokesman for the human rights group Adhoc, yesterday said he does not object to the content of the Article 495 of the Cambodian Criminal Code.

“The content of the Article is intended to prevent such wrongful activities, but the implementation by the authority was not in accordance with the law when used against political activists, social and environmental activists as well as ordinary people,” he said.

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