Wednesday 21 February 2018
In November, two men were arrested at a guesthouse in Phnom Penh for allegedly running an unlicensed karaoke production studio. Within 24 hours, the allegations had been upgraded. The duo, longtime Radio Free Asia journalists Uon Chhin and Yeang Sothearin, were accused of ‘secretly’ working for the American-funded broadcaster, which had shut down a month earlier amid security threats. They were charged with espionage.
Article 445 of Cambodia’s criminal code deals with treason and espionage. The law criminalises ‘supplying a foreign state with information prejudicial to national defence’. The wording is vague: a person can be prosecuted for ‘supplying or making accessible to a foreign state or its agents information, processes, objects, documents, computerised data or files which are liable to prejudice the national defence’. If found guilty, the defendant faces between seven and 15 years in prison.
‘These charges have all the hallmarks of being another example of the government “weaponising” the law against its perceived opponents,’ said Kingsley Abbott, Senior International Legal Adviser for Southeast Asia at the International Commission of Jurists. ‘By mischaracterising the rule of law in this way, the government is attempting to shut down legitimate criticism on the basis that Cambodia is merely applying its own domestic law and that the international community should respect its sovereignty.’
“These charges have all the hallmarks of the government ‘weaponising’ the law against its perceived opponents
Senior International Legal Adviser for Southeast Asia, International Commission of Jurists
While journalists frequently fall foul of the Cambodian government, the use of espionage charges is virtually unprecedented. Typically, journalists are charged with incitement or defamation. A survey of local news reports suggest that, prior to 2017, this law was used just once. In 2011, two Thai activists who illegally entered the country and accessed a military base were convicted under Article 446 for ‘collecting information prejudicial to the national defence’. They were sentenced to six and eight years, respectively; one pardoned in 2013 and the other a year later.
In 2017, espionage charges were used four times. In September, opposition party president Kem Sokha was charged under Article 443 for conspiring with a foreign power. The Cambodia National Rescue Party (CNRP) head was arrested over a 2013 video in which he spoke of the support his party had received from the United States government.
The Cambodian government has sought to paint a narrative of illicit efforts by the US to overthrow the longtime ruling Cambodian People’s Party. Shortly after Kem Sokha’s arrest, the country’s Supreme Court dissolved the opposition party.
Prior to this, Australian filmmaker James Ricketson was charged in June under Article 446. The longtime Phnom Penh resident – a fierce critic of the government – was initially detained for living in Cambodia illegally.
Police and officials have been vague about what, precisely, Ricketson did that would constitute a breach of the espionage law. But, like the recent Article 445 charges against Chhin and Sothearin, Article 446 is so broad as to encompass much of what a journalist or documentarian might do on a daily basis.
Shawn Crispin, Southeast Asia Representative to the Committee to Protect Journalists, said the court’s use of espionage laws was a worrying trend.
‘Any media criticism of the government sent to a foreign news outlet now risks similar espionage charges. If the former Radio Free Asia reporters are convicted as charged, it will set a disastrous precedent for press freedom in Cambodia. Unfortunately, Cambodia's courts have shown they receive and obey their orders from above. If [Prime Minister] Hun Sen wants them convicted, they'll be convicted,’ he said.
Cambodia has witnessed a steep deterioration of human rights in recent months. In June 2017, the opposition CNRP saw a tenfold increase in seats won in local commune-level elections, pulling in 44 per cent of the popular vote, while the ruling Cambodian People’s Party dropped more than ten per cent to win just over half the vote. Since then, the government has carried out a systematic campaign of harassment of media and rights groups, while dismantling the CNRP – the only viable competition in upcoming elections in July.
Several rights groups have been suspended or shut down in the face of harassment and arrests, while dozens of independent radio stations have been ordered closed.
As the crackdown on the opposition widens, most of the CNRP has fled the country. In addition to the dissolution of the party, the Supreme Court barred more than 100 members from serving in politics for five years.
The charges against Chhin and Sothearin, said Abbott, fit into the broader efforts of the government to utilise the courts to serve a party’s larger aims.
‘What aggravates the situation in Cambodia is that the single largest problem facing the Cambodian justice system is the lack of independent and impartial judges and prosecutors, which means that the appropriate checks and balances on executive power, particularly in politicised cases, are virtually absent,’ he said.
Hans Corell, Co-Chair of the IBA’s Human Rights Institute’s, pointed to the Cambodian constitution, which guarantees the right to free expression. Though he stressed that, as a judge, he couldn’t comment on the validity of a particular case, he said the charges appear worrisome.
‘The whole thing sounds very strange. The sad thing is, of course, the manner in which Cambodia has treated both journalists and even judges in the past. It’s very problematic and violates Cambodia’s obligations both under national and international law.’