The Right to Information: Status and Challenges

SEAPA’s Right to Know Series: Access to Information in Southeast Asia

[See country reports on  Indonesia, Malaysia and Thailand]

This chapter looks at the principle of freedom of information, the status of the right to information in international law and the extent to which that right is provided for in the domestic laws of Cambodia. The chapter also examines the challenges Cambodians face in accessing government information and recommends legislative, structural and policy changes to ensure that the right is fully guaranteed in line with international standards. Despite some progress in recent years, Cambodia still lacks a developed information infrastructure at all levels of government, a situation compounded by the authoritarian nature of the state where official information is virtually inaccessible. Access to government information could, therefore, be vastly improved, with tangible benefits to the lives of ordinary people.

1. Freedom of Information in the Cambodian context: political and socio-economic considerations

Prime Minister Hun Sen’s Cambodian People’s Party (CPP) has near monopoly on political power in Cambodia. It CPP won 1,591 out of 1,633 seats in the local Commune elections held in June 2012, illustrating its grip on all levels of government.

During the latest National Assembly (NA) elections on 28 July 2013, the CPP and the main opposition Cambodian National Rescue Party (CNRP), won 68 and 55 seats, respectively, in the 123-member Assembly.1 The CNRP, formed through a merger of the Sam Rainsy Party (SRP) and the Human Rights Party (HRP) in 2012, gained some ground after opposition leader Sam Rainsy was pardoned and allowed to return to Cambodia from self-exile, just before the July 2013 elections.2 The NA election process faced much criticism from civil society and the international community with allegations of widespread fraud and irregularities. The CNRP challenged the NA election results and boycotted the NA for almost a year. It ended the boycott on 22 July 2014 after signing an agreement with the CPP under which the CNRP accepted the 55 parliament seats it had won in the election, in exchange for the creation of an Anti-Corruption Commission (ACC) and, most importantly, the reform of the National Election Committee (NEC).

Cambodia is one of the world’s poorest countries, with an average per capita GDP of around $2,600 (2013 estimate, adjusted for Purchasing Power Parity), placing it 183rd out of 229 countries worldwide.3 Economic progress over the last decade has been “driven by tourism and renewed exports”.4 The GDP is now approximately $15.64 billion and the economy grew at an annual rate of around 7% between 2010 and 2013, slowing with the onset of the global financial crisis.5 However, these economic shifts have also resulted in low wages and inadequate working conditions in several industries, especially in the garments sector. Work strikes, often violently suppressed by security forces, are common. There have also been increased instances of land-grabbing, forced evictions and illegal logging. By the end of 2013, approximately 16.6% of Cambodia’s land had been granted as concessions to private businesses, often leading to forced evictions that turned violent. Communities evicted from their homes as a result of the land concessions were resettled with little respect for human rights and due legal process. Land and environmental activists in Cambodia often face threats and judicial harassment. This has resulted in increased protests by land evictees and violations of land rights; infringement of land rights is among the most prevalent human rights violation in Cambodia today.

Since 2001, a stronger legal framework allowing greater public access to information has emerged in Cambodia, largely in response to pressure from international donors. Non-governmental organizations (NGOs) in the country have pushed for greater transparency in government working and public education in democratic rights. A plethora of Cambodian and international civil society organizations are seeking to plug gaps in public access to government information, facilitated by increasing use of the Internet. For example, the Cambodian Center for Human Rights (CCHR) established a dedicated human rights portal, Sithi.org to fill that gap and “to provide information on the human rights situations in Cambodia to increase awareness and understanding…in order to mobilize action to protect and promote them”.6

However, many Cambodians are still largely ignorant of information affecting their lives. Government officials often do not comply with the few legal provisions related to freedom of information. This, paired with a politically subservient judiciary and a repressive police force, has prevented Cambodia from developing a strong freedom of information framework. Indeed, Transparency International’s 2013 Corruption Perception Index ranked Cambodia 160 out of 177 countries, describing it as “highly corrupt”.7 Well-known examples of corruption involve illegal logging, government collusion with companies to form unfair monopolies or grant public contracts, and inflated expenses in the national budget. Moreover, the government’s control of mass media, particularly radio and television, giving a significant advantage to the ruling party, is an issue in a country where 26 percent of the population is illiterate.8 This discourages independent and impartial journalism and fosters widespread self-censorship, especially within government-aligned and controlled media.

Increasing public access to government information and influence on decision-makers will promote greater democratic participation in Cambodia. It will also provide the public with information to make informed decisions on public issues, increasing transparency and accountability in governance in Cambodia.

2. Access to Information in practice at CCHR

The Cambodian Center for Human Rights has learned from experience that government officials are often unwilling to cooperate or share information, having faced much difficulty and delay when requesting copies of draft laws from the Royal Government of Cambodia (RGC). For example, the CCHR could obtain a copy of the Sub-Decree on the Formalities and Conditions for Strong Acid Control 2013 (Sub-Decree) before its passage, only after directly contacting a member of the drafting committee. The draft law was barely accessible to CCHR, let alone the public.

When, in May 2012, the government announced the drafting of Cambodia’s first cyber law, CCHR tried to obtain a copy from RGC members working on the legislation but was given vague and non-committal answers.9 A draft was leaked in April 2014. The RGC has refused to publicize the draft legislation, which currently includes dangerous provisions that could ban publications on vaguely defined grounds and provides for heavy prison sentences and fines.10 The difficulties in accessing draft laws are not restricted to the draft Cybercrime Law.11 The RGC’s unwillingness to disclose information about draft laws prevents civil society and those directly affected by the proposed law, from having a say in its development.

Likewise, when the CCHR Freedom of Expression Project organized multiple roundtable discussions and sent summary policy briefs of their outcome to relevant government ministries, it received a response to only three of the eight letters it sent, making engagement with the RGC nearly impossible. The ministries offered the excuse of letters being lost and officials not being available. The Land Reform Project received a similar response when it invited government officials to participate at a policy platform on “Environment and Land” in Mondulkiri Province – all seven invitations were rejected.

3. Developments in the Access to Information Practices in Cambodia

3.1 Legislation

In 2004, the RGC, strongly encouraged by donor countries, acknowledged the need for a freedom of information law in order to create transparency, reduce corruption and promote confidence in the government,12 and stated its aim to develop such a law by 2006. Ten years later, this is yet to be achieved.

3.1.1 The Press Law and Archive Law – a lackluster approach to legislating freedom of expression

Article 5 of the 1995 Law on the Press (Press Law) is described by many as the closest legal guarantee of public access to information. The Article recognizes the right of the press to “access information in government held records”.13 Article 5 states that in order to obtain information, a written request must be made to the relevant institution specifying the information sought. Officials are obliged to reply within 30 days. The Press Law provides that access can be denied on grounds that disclosure would: (a) endanger national security, and/or harm relations with other countries; (b) constitute interference with the right to privacy of individuals; (c) lead to the exposure of confidential information and financial information; (d) affect the right of a person to a fair trial; or (e) endanger public officials while carrying out their duties.

However, the Press Law guarantees access to information only to the media and the average citizen cannot use it to access government records. There appears to be no legal justification for restricting this right to the media. Moreover, the Law is silent on any right of appeal if a request is rejected and there is no provision for an independent entity to monitor requests and government replies to these. The absence of such a right of appeal makes it possible for authorities to deny access to official information, notwithstanding the guarantee of Article 5.

The 2005 Archives Law regulates the management and maintenance of information in government archives. It provides for public access to “publicized documents” that are not harmful to national security, for research and consultation “as unrestricted information”.14 However, the law does not define “publicized documents” and documents that are not “publicized” cannot be accessed until at least 20 years after the date of their production or the end of the proceedings during which they were created. Certain documents are subject to longer periods of secrecy in order to protect national security or defend national sovereignty and the rights of individuals.15 The penalties for breaching the Archives Law by making these documents public are severe: a fine of between US$1,250 and US$6,250, and imprisonment of between 7 and 15 years.

3.1.2 Positive legislative developments

There have, however, been some positive legal developments in relation to freedom of information at the local level. Since 2001, the RGC has been implementing a policy of “deconcentration and decentralisation”.16 The policy aims to delegate and, to a lesser extent, transfer part of the decision-making power to local authorities. It represents a positive step forward for public access to information at the local level and is premised on giving greater control to local entities and to increase public participation in decisions that directly affect it.

This process is regulated by the Law on the Administration and Management of Commune/Sangkat 2001, which recognizes communes and sangkats as legal entities with legislative and executive powers to design development plans for communes and manage local projects. The Organic Law on Administrative Management of Capital, Provinces, Municipalities, Districts and Khans 2008 (Organic Law) provides for the establishment of elected councils for each administrative division and directly accountable to citizens. Both laws contain provisions specifically aimed at guaranteeing freedom of information. For example, the Law on the Administration and Management of Commune/​Sangkat contains provisions requiring meetings of the Commune/Sangkat Council to be held in public17 and immediate public dissemination of the decisions.18 Similarly, the Organic Law provides that all council meetings shall be conducted in public19 and that the council shall create favorable conditions for the public when disseminating public information on government reports, the agenda or minutes of a meeting, bylaws and the like. 20

Information boards are mentioned in several articles of the Organic Law as a means to disseminate information to the public. These are a promising medium to increase public awareness of government activities and ensure that those affected by government decisions are duly informed. In addition, by mandating that local officials consult citizens and report all official decisions, it appears that the Organic Law should increase freedom of information throughout the country.

3.1.3 The Anti-Corruption Law – A Paper Tiger

Freedom of information allows for greater transparency in government and enables citizens to be on guard against corruption. However, attempts to formulate anti-corruption legislation in Cambodia have had mixed results as demonstrated by the Anti Corruption Law 2010. In September 2007, the RGC ratified the United Nations Convention against Corruption (UNCAC) which has a number of references to freedom of information and lists steps that States must take to promote transparency. Article 10(a) provides that the State shall adopt “…procedures or regulations allowing members of the general public to obtain, where appropriate, information on the organization, functioning and decision-making processes of its public administration.” The Anti-Corruption Law was passed by the National Assembly in March 2010 and came into effect in August 2010.21 This cemented the powers of the Anti-Corruption Unit (ACU) created before the passage of the legislation. Its role is to implement laws, orders and regulations related to corruption and direct efforts to prevent and combat corruption within Cambodia. This includes monitoring and investigating corruption and reviewing corruption complaints. The law also established the National Council Against Corruption to provide guidance and recommendations to the ACU.

The Anti-Corruption Law has been heralded by some as a positive step in tackling corruption, but deeper analysis reveals it cannot be effective. For example, the law is silent on the ACU’s ability or obligation to publish information regarding its activities and investigations. This, in effect codifies the presumption against disclosure, rather than facilitating maximum disclosure, which is a key part of internationally accepted freedom of information standards. Furthermore, the law expressly precludes the publication of any reports by the ACU; these are, instead, sent directly to the Prime Minister, raising concerns not only about the lack of transparency, but also about the ACU’s political independence.22

Under the Law, certain individuals and bodies must declare their assets and liabilities to avoid charges of conflict of interest.23 However, the Law states that declarations to the ACU will remain confidential, including declarations by members of the Senate, National Assembly, RGC, trial judges and civil society leaders.24 The opposition failed in its bid to amend the draft law to make these disclosures public. As noted by SRP lawmaker Son Chhay: “we believe that if you treat the declaration of the asset as top-secret, particularly the asset of those in government, this kind of declaration will become meaningless.”25

The Anti-Corruption Law also lacks a legal framework for the physical and legal protection of anti-corruption whistleblowers as recommended by the Freedom of Information Principles.26 Indeed, Article 41 of the Law makes it a criminal offence to leak information and make false complaints of corruption. It is also unclear whether an incorrect complaint, rather than a deliberately false one, would constitute an offence under the Law. These provisions, and the lack of certainty as to how these would be interpreted, are likely to deter whistleblowers. In addition, given the rather opaque procedures in the Law and the lack of obligation to publish information of corruption probes, there are concerns whether the information provided will be used to genuinely tackle corruption.

Freedom of Information legislation that includes the presumption of maximum disclosure would mean that the work of public officials could be appropriately monitored and corruption uncovered. This would complement the Anti-Corruption Law by strengthening the ability of ordinary Cambodians to hold public officials to account.

3.1.4 Other Relevant Cambodian Legislation

There are laws in the country which, in theory, allow greater public access to important information regarding land rights. The abolition of land titles and the evacuation of cities and towns during the Khmer Rouge regime resulted in hundreds of thousands of Cambodians losing their land ownership titles. The Land Law 2001 (Land Law) puts important restrictions on the granting of land concessions and expropriations that often capitalize on the uncertainty regarding true ownership of land arising from this history.

The Land Law and associated sub-decrees contain a number of provisions supporting the publication of information. Article 53 of the Land Law, for example, states that economic land concessions “must be based on a specific legal document, issued prior to the occupation of the land by the competent authority.” The Sub-Decree on Economic Land Concessions, dated 27 December 2005, provides that an economic land concession may only be granted when a number of criteria are met, including public consultation between territorial authorities and local residents.27 There are also provisions in the Land Law concerning the Cadastral Administration, which has a number of roles in relation to verifying land ownership. The Administration must create a Land Register that collects data on land ownership and its physical features. This information must be maintained and accessible to anyone who seeks it from the Administration or the local Cadastral Offices.

The Expropriation Law 2009 similarly has clear procedures for public consultation on land expropriation by authorities and the publication of information about projects. It provides that before a project proposal, the Expropriation Committee shall publicly conduct a survey of the property.28 In preparing the survey, the Expropriation Committee must publicly consult local authorities and those affected by the expropriation, providing all necessary information and listening to the opinions of all “concerned parties”.

3.1.5 Draft Law on Access to Information – A Missed Opportunity

In December 2010, the SRP submitted a Draft Law on Access to Information (Draft Law) to the National Assembly, but it was rejected. The Draft Law had many important provisions which, had it been enacted, would have made huge strides in ensuring the right to freedom of information in Cambodia.29 The Draft Law stated that any exemptions to disclosure must meet a public interest test.30 It also included provisions on proactive disclosure31 as well as detailed provisions on the institutional framework to support the right to information,32 the protection of whistleblowers, 33 and the development of an independent oversight body and an Information Disclosure Tribunal. 34

The Draft Law clearly stated: the law “should override other laws that prohibit or prevent the disclosure of the public (or private) body’s records and become a supreme law on disclosure of information” but “shall not prohibit or prevent the information disclosure under other laws, regulations, policies or practices.”35 In addition, “any provisions that are contrary to this law shall be revoked.”36

In March 2012, SRP lawmaker Son Chhay sent an amended version of the Draft Freedom of Information Law to the National Assembly calling for parliament to, at the least, debate the legislation rather than reject it outright.37 The amended Draft Law contained some positive provisions: Article 6 obliged all public institutions to publish and disseminate, in an accessible form and, at least annually, key information and documents pertaining to their work. Furthermore, Article 9 required the RGC to publish draft laws, regulations, policies and other documents of public interest as soon as such documents reached the Office of the Council of Ministers, allowing the public to understand RGC work and, most importantly, decisions that would affect their daily lives.

Another positive provision was the requirement to prepare a guide to the amended Draft Law to guard against its incorrect implementation or abuse. Article 12 required the Information Commissioner to compile this guide. The Information Commissioner should be an independent institution that (i) oversees and reports on the implementation of the law by public bodies, (ii) decides on public complaints of refusal to provide information, (iii) makes recommendations for reform, (iv) trains public officials on the right to freedom of information and (v) publicizes the requirements in the amended draft FOI Law and the individual’s rights under it.

Chapter 8 of the amended Draft Law provided for an Information Disclosure Tribunal (Tribunal) as a court of appeal against the decisions of the Information Commissioner. Parties not satisfied with the decision of the Tribunal could appeal to the Supreme Court within 28 days of the decision. Article 68 sought to guard against any “legal, administrative or employment-related sanction” on releasing information that would “disclose a serious threat to health, safety or the environment” as long as the person responsible acted in good faith and in the reasonable belief that the information was substantially true. This provided witnesses and/or whistleblowers with legal protection.

However, a few aspects of the amended Draft Law left room for improvement. Firstly, its language was very complicated, giving rise to concern that it would be difficult to implement by local authorities and the general public would struggle to understand it. The amended Draft Law also had several vague terms. For example, it did not distinguish between public and private bodies, with broad definitions leaving scope for misuse and misunderstanding. Article 4 was also of concern, stating that the amended Draft Law would apply only to courts and other tribunals and not the other branches of government. Finally, the Draft Law did not include a clear presumption in favor of maximum disclosure.38

3.2 Freedom of information – Supply Side Problems

Difficulties remain with the supply of information and the often-unhelpful attitude of government officials in providing it. The aforementioned provisions in the Land Law and the Expropriation Law are encouraging signs that appear to recognize the importance of the public dissemination of information about public land that the government is considering giving out as a private concession or private land that it plans to expropriate. However, law and policies are rarely implemented when it comes to cases of land conflict and forced eviction in Cambodia. Often, affected households are not given adequate information about the plans of the private business granted the land concession and not included in negotiations between authorities and the land concessionaire. The information provided is frequently incomplete and/or inaccurate.39 When consultations with communities do occur, these are often allegedly manipulative or coercive.

The website of the Ministry of Agriculture, Forestry and Fisheries has an economic land concession page with profiles of land concessions granted and basic information about the concessionaire.40 While this is extremely useful and an encouraging step towards transparency in governance, the website has limited information about the owners of the companies and no information about future likely concessions. In its current state, the website is insufficient to properly monitor land concessions.

It would seem that the land authorities in Cambodia view proper consultation with those affected by land appropriation as an impediment to economic growth. The Aphiwat Meancheay resettlement, however, demonstrates the utility of involving affected communities. In 1997, the Municipality of Phnom Penh (MPP), residents and local and international NGOs, met to discuss the resettlement of 129 families living on the roadside near the Chinese Embassy in Phnom Penh. The RGC wanted to relocate the families as part of city development and they were given the opportunity to select a new home location, playing an active part in the process. As of 2006, the community was thriving, with 75% of its original resident members.41 Transparency at every stage of the relocation project, active communication with residents, and a clear and public strategy, created land security for the evicted residents and allowed the RGC development plan to go ahead. It should be noted that the cost of this project was considered high at US$784 per family, but it is believed that the process can be used as a model for similar projects in future.

A limited amount of government information is available online. The website of the Ministry of Industry, Mining and Energy (MIME)42 lists policies and regulations governing the mining sector as well as companies and their activities. The oil industry also provides limited public information. The Cambodian National Petroleum Authority (CNPA), with its Chairman reporting directly to Prime Minister Hun Sen,43 controls the granting of concessions and contracts for oil exploration. Although the CNPA has a website,44 little information is publically released, except through media reports or leaks. On 28 April 2010, the Prime Minister announced that French oil company TOTAL had paid US$8 million into a social development fund as part of an agreement to explore for oil deposits in Cambodian waters and an additional US$20 million in signature bonuses.45 This openness is encouraging and is hoped to set a precedent for the CNPA and other government ministries for publicizing similar agreements.

3.3 Access to Information and the Press

In March 2011, the RGC established the Press and Quick Reaction Unit (PQRU) to provide the media with information on military, diplomatic and national security issues.46 This was an important step in speeding up media and public access to government information, and encouraging public discussion of key national issues. However, the PQRU is also used as a political tool by the ruling party. A few days after the 2012 Commune elections and following the publication of a Sam Rainsy interview in which the opposition leader announced that he would lead an Arab Spring-style revolt in Cambodia, a PQRU statement threatened the opposition leader: “By this revelation… [Rainsy] signed his own imprisonment sentence that could be longer than his current prison term.”47

Although the Ministries of Foreign Affairs, Information, Interior and Land Management now have dedicated media spokespersons, many ministries have no institutional contact for the press. The NA and the Senate too lack dedicated media contacts. The number of spokespersons per ministry is not publicized, but estimated to be more than 100.48

Provincial Departments of Information have been set up across the country to facilitate local access to information, but details regarding these are not known and the resulting opacity makes it difficult for civil society and the local press to access government information.

A 2012 CCHR Report on Freedom of Information in Cambodia49 interviewed a number of journalists on the ease of accessing information under Article 5 of the Press Law. The journalists reported positive experiences when seeking information on non-political issues with government ministries generally forthcoming with the information. They also acknowledged that the appointment of media spokespersons in most government ministries had improved the speed and efficiency with which they could access certain kinds of information. Nonetheless, some ministries had not appointed media spokespersons and some journalists expressed concern about the availability of the appointed media spokespersons. A number of the interviewed journalists also suggested that ministry spokespersons were knowledgeable enough about the ministry’s work and that the information they provided was sometimes vague or incorrect.

Ministry spokespeople are also reluctant to share full information. The resulting lack of access to adequate information that is also accurate, severely hinders the ability of journalists to perform their role as informers and shapers of public opinion. Participants in public forums on democracy organized by CCHR in 2010, acknowledged greater awareness among public officials of their role as public servants. However, ministers and NA members still do not weigh the public impact of their decisions and are not aware of the importance of sharing information with the people.50

Given the close ties between government and business in Cambodia, it can be argued that the former lacks the incentive to provide information about public contracts, particularly when these coincide with the personal business interests of government ministers or their cronies. This was obvious in a leaked document published in The Phnom Penh Post in March 2010, outlining a scheme of business funding of Royal Cambodian Armed Forces (RCAF) units.51 Seven businesses named among the private funders were owned or controlled by individuals who were directors of companies that had been named in a 2007 United Nations (UN) document52 as having received land concessions since 2000. In some cases, such as that of CPP Senator and RCAF funder Ly Yong Phat, the RCAF had engaged in evictions on land subject to a government concession. This implied that individuals funding the RCAF were using the connection to enforce the land concessions. This information was only made available to the public through quality investigative journalism.

3.4 Governance

A recent Open Budget Initiative report scored Cambodia a dismal 15 out of 10053 in transparency in the spending of public funds, a key area of corruption. Cambodia has the second lowest score in South-East Asia after Myanmar’s score of zero. The report noted that “scant information on the central government’s budget and financial activities during the course of the budget year” was provided to the Cambodian people.54 For example, the Cambodian government made public only four of the eight key documents identified in the Open Budget Initiative report. It also does not publicize a non-technical version of the budget that would allow citizens to better understand government spending priorities. Indeed, information regarding government contracts/loans or military contracts/loans, potential sources of corruption, is not available. Such information is not listed on the websites of ministries.

There is also evidence that information considered sensitive or potentially damaging to officials is withheld from the public. Following the disputed National Assembly election on 28 July 2013, Cambodian security forces reportedly used excessive force repeatedly against protesters, leading to the death of at least six persons, the disappearance of at least one individual and to dozens of injuries.55 However, there has been no thorough, public and independent investigation into the allegations of serious human rights violations by state security forces.

Following a clash on 12 November 2013 between workers of SL Garment Factory and state security forces that led to the death of a person,56 a spokesman for the national police force said that an investigative committee had been set up to identify the policeman who had fired on the crowd. No results had been released till the writing of this report. A subsequent crackdown by security forces on protestors on 3 January 201457 that saw some protestors killed, was blamed by Brigadier General Kheng Tito (spokesman for the Cambodian Military Police) in a statement four days later, on “inciters” who led the protest. On 10 January 2014, the RGC announced the creation of two commissions headed by the Interior Minister to separately investigate the damage caused by the “anarchic demonstrators” and the nature of the protests.

A recent survey on freedom of information issues in Cambodia, commissioned by the Cambodian Center for Independent Media (CCIM) assessed public opinion on access to information based on feedback from key stakeholders.58 The study found that ‘news’ about national holidays and domestic and foreign visits by Cambodian officials was largely considered accurate. However, public information on the national budget, human rights violations, border conflicts, deforestation, illegal logging and unlawful fishing, was perceived as highly manipulated by government agencies. 59

3.5 Demand for Access to Information

According to the World Bank, there is an absence of public demand for information about the government’s work in Cambodia “due to lack of awareness of information rights, reluctance to request ‘sensitive’ information, and little sense of how to find information or how to use it to effect change”.60 This is particularly true in relation to land disputes. The traditional patriarchal culture encourages deference to authority and a reluctance to ask for information from the government. This results in citizens not asking questions about public expenditure, budgets or other “sensitive” issues. A World Bank study found that Cambodians do not see it as their role to hold authorities to account, noting “a high level of uncertainty about questioning or even requesting information from authorities, fearing that simply making such a request could be interpreted as an expression of distrust and lead to anger, loss of face or negative repercussions.”61

This attitude was well summed up by a participant at a 2010 CCHR public forum on elections and democracy, stating that if “the [ruling] Cambodian People’s Party is our parent, how is the child supposed to change its parent?”62 The CCHR encountered the same attitude while probing the death of 347 people during the 22 November 2010 stampede on Koh Pich Bridge in Phnom Penh – witnesses seemed reluctant to ask questions of authorities or make negative comments and there appeared to be a fear of adverse repercussions if such questions were asked.

Nevertheless, the results of the CCIM survey on Freedom of Information outlined above, reveal an encouraging interest in and desire for greater access to information, as well as an understanding of its importance in the daily lives of people. More than 80% of survey respondents agreed they had the right to access public information, in particular on government budgets and salaries of public employees. More than 80% respondents agreed that government and public institutions should be obliged to publicize information about their work. Some 19.1% of the respondents reported having sought information on national statistics, commune budgets and expenditures, and the cost of civil registration. Of those who tried, 32.5% found it difficult to access the information. At the same time, 82% of the respondents said the information was important to them.63

3.5.1 Information infrastructure / Politicization of media outlets and its effect on the flow of information.

To promote public dissemination of information by the Cambodian Government, the Australian Government, on 7 May 2012 announced the donation of AUS$3.02 million to increase the capacity of Indonesia’s Provincial Departments of Information. The press release issued by the Australian Government cited the increased rural participation in the latest Commune Council election. The Cambodia Communication Assistance Project (CCAP) will be managed by the Australian Broadcasting Corporation (ABC) and the Ministry of Information, Government of Cambodia. Building on previous Australian support for provincial radio in Cambodia, the CCAP will fund three radio stations in Battambang, Kampong Cham and Kampot. The Australian Ambassador to Cambodia, Her Excellency Penny Richards expressed hope that these would set “…a new standard of neutral and unbiased quality radio programs.” Her call for “…all media outlets in Cambodia to broadcast a wide variety of opinion and political debate, giving equal air time to various groups without discrimination or censorship” is especially pertinent given the politicization of media outlets in Cambodia and its implications for the dissemination – or, to use ICCPR language, “imparting” – of information to the public.

The Freedom of Information survey by CCIM confirmed that radio is the first preference in terms of source of information for 59.7% respondents, while television was popular among half the respondents as their preference with the rest relying on word of mouth. The lack of regulation of electronic media licensing is a particular concern. Most of the 74 officially registered radio stations in Cambodia64 are under the control of the ruling party65 and only three are independent.66 The CPP directly owns or has strong influence over all of Cambodia’s 11 television networks. An advisor to the Prime Minister owns the country’s most popular TV station, Cambodian Television Network (CTN) while the Prime Minister’s daughter owns another channel, Bayon TV.67 Radio station ownership is also dominated by people close to the CPP. While some radio stations may be viewed as politically neutral due to their focus on music and entertainment, only two are believed to be politically independent, namely FM 102 run by the Women’s Media Center and FM 105, also known as Beehive Radio. For over ten years, Beehive Radio has been selling air time to the United States Government-funded broadcasters Radio Free Asia and Voice of America (VOA), to air their Khmer-language broadcasts. Denied a radio license, the CCHR-supported independent radio initiative, Voice of Democracy, also rents air time from Beehive Radio to broadcast its politically unbiased news and commentary.68 However, in July 2012, Beehive Radio owner and President of the Association of Democrats, Mam Sonando was arrested in connection with a long-running land dispute in Kratie province involving Russian company Casotim. He was accused of secession in an attempt widely believed to quell dissent ahead of the 2013 National Assembly elections.69 Convicted and sentenced to 20 years in prison on 1 October 2012,70 he was, however, subsequently released, with some of the most serious charges dropped by the Court of Appeal on 14 March 2013.71

The lack of independent media outlets is a major obstacle to the Cambodian press playing its ‘watchdog’ role. Independent election observers reported a lack of balanced political news coverage during the 2013 election campaign, with opposition parties denied space in the CPP-dominated mainstream media.72 While the 2012 commune and NA elections, which renewed the CPP’s legislative majority, were marked by fewer instances of violence, intimidation and overt irregularity, independent observers noted these were still not free and fair because of the unequal media coverage of the poll campaign of the opposition parties.73 Indeed, the Ministry of Information is reported to have ordered several FM radio stations to refrain from broadcasting VOA and Radio Free Asia election coverage, with Voice of Democracy taken off the air during the election.74 Authorities justified this as an attempt to maintain a “quiet atmosphere”, though it was clear that the muffling of independent radio stations undermined the impartiality of the election process.75 During the recent National Assembly elections, the Ministry of Information banned all radio stations from broadcasting foreign radio programs76, effectively handicapping the opposition poll campaign.

3.5.2 Threat of/use of criminal sanction

Public access information in Cambodia continues to be challenged by the culture of secrecy in high places, repressive legislation, and state intimidation, both overt and covert.77 While Article 20 of the Press Law provides that “no person shall be arrested or subject to criminal charges as the result of the expression of opinions”, many terms within the Law and the boundary between the Press Law and the criminal law, are unclear. While in the case of Mong Rethy & Ors v. Keo Sothea (April 2002), it was successfully argued that criminal defamation provisions were superseded by Article 10 of the Press Law, which makes defamation a civil offence, this precedent has not been implemented in practice and journalists continue to be prosecuted for defamation under the criminal law.78 Hang Chakra, publisher of the pro-opposition Khmer Machas Srok newspaper was arrested on 26 June 2009 after his newspaper published a series of articles accusing several aides of Deputy Prime Minister Sok An of corruption.79 The publisher, who refused to reveal his sources as allowed by Article 2 of the Press Law, was convicted in absentia of disinformation, sentenced to a year in prison and ordered to pay a fine of 9 million riel (about US$2,250).80

The 2009 Cambodian Criminal Code (Penal Code), which came into force in December 2010, expressly states that defamation cases involving the media should be dealt with under civil provisions in the Press Law. However, some Penal Code provisions are a serious threat to media freedom, including the criminalization of public comment on the charge of trying to influence the judiciary and discrediting judicial decisions.81

Human rights groups criticized the arrest of UN World Food Program employee, Seng Kunnaka in Phnom Penh in December 2010 on the charge of incitement under article 495 of the Penal Code for sharing with two co-workers, an article on the anti-government KI-Media website. A few days after the arrest, he was sentenced to six months in prison and a fine of 1 million riel (US$250), on a day when courts were otherwise closed in Cambodia.

Under the Penal Code, incitement is vaguely defined as creating “serious turmoil in society” through the sharing of public speech, writings, drawings or audio-visual telecommunication intended for public consumption.82 The alleged incitement need not produce the intended result and the penalties include prison terms ranging between 6 months and 5 years. The peaceful expression of views “affecting the dignity” of individuals, public officials and government institutions is punishable under the Penal Code as defamation and contempt. The criminalization of criticism of court rulings, on the charge of disturbing the “public order, has also raised concern. Human Rights Watch has urged the Cambodian Government to amend the Penal Code to remove these provisions to comply with international standards.83

The RGC was accused of trying to shut down KI-Media in early 2011 by ordering the blockage of all websites on the free web-hosting service blogspot.com that also hosts KI-Media.84 The use of such methods to silence voices critical of the government, prevents the public from accessing government information and participating in informed discussion and democratic debate.85

There is also evidence of media self-censorship and non-publication of information that would be considered offensive or politically sensitive by the government.86 Observers have noted that publishers and editors have an active policy of covering the less sensitive and often, less interesting stories “in order to stay out of harm’s way.”87

In August 2011, the Ministry of Interior suspended the license of the well-known urban land rights NGO Sahmakum Teang Tnaut (STT) following the NGO’s strong criticism of government-backed evictions to revive a railway link that would displace thousands of poor families.88   The STT report ‘Rehabilitation of Cambodia’s Railways: Comparison of Field Data’, published on 4 July 2011, reported “systematic downgrading of structure types leading to lower compensation rates” owed to affected home owners as well as “a higher number of affected households” than officially reported by the government’s Inter-Ministerial Resettlement Committee.89 The NGO was to remain suspended until its re-registration became possible after the highly controversial Law on Associations and Non-Governmental Organizations (LANGO) came into force. The suspension ended after six months.90  LANGO has been widely criticized for its onerous registration requirements for grassroots movements and community-based organizations as well as its lack of transparency in the assessment process.91  Fears that the law could be used to persecute advocacy NGOs were prematurely realized with the suspension of STT.92

NGOs play an important role in Cambodia, informing people of their rights, safeguarding freedom of information and protecting workers’ rights. For example, the NGO, Better Factories Cambodia, monitors factory conditions in the country and advises management and employees through workshops and training sessions. This has been largely successful in improving working conditions in factories in Cambodia.93 Similarly, CCHR conducts public forums and training across the country, providing information on key legal points to communities affected by land conflicts and other human rights issues. This empowers marginalized communities to defend their rights themselves. These are important ways of filling the public information gap in the country and to inform people about their rights.

4. Conclusion

Informed citizens and a leadership that can be held to account, are essential elements of a successful democracy. This, in turn, requires protection and legal enforcement of the public’s right to know, along with active implementation of freedom of information principles. There has been some progress over the last ten years in guaranteeing public access to government information in Cambodia. The appointment of media spokespersons in government ministries is a welcome development. Steps towards a freedom of information law and policy are also encouraging, but are hampered by an apparent lack of political will. Limited government resources for the dissemination of public information in Cambodia and their inefficient use, is a challenge. However, this should not be a reason for delaying the enactment of a freedom of information law.

Laws alone cannot ensure access to public information in Cambodia and there is need to change the culture of managing and sharing information as well as the attitudes of the public and the government. People must understand their role in a democratic society and their right to seek information from those in authority. The government must also appreciate its role as a representative of the people.

The following general recommendations are, therefore, proposed to enhance freedom of information in Cambodia:

  • The revised draft of a Freedom of Information Law proposed by the SRP in March 2012 should be debated by the National Assembly and appropriate amendments included to ensure the draft legislation adequately protects and guarantees freedom of information in accordance with international standards. This will need to be enacted by the National Assembly and the Senate. Alternatively, the Ministry of National Assembly, Senate Relations and Inspections should finalize the freedom of information policy it began drafting in 2007, using it as a basis for drafting freedom of information legislation for Cambodia.
  • Any Freedom of Information Law should give all Cambodian citizens the right to access and request information.
  • The RGC should amend the Archives Law to define “publicized documents” and allow greater access to information.
  • All public bodies should ensure that information about their work is accessible to the public and have policies to update and publish information online.
  • All public bodies should be encouraged by the RGC to adopt and implement internal codes on public access to information based on laws.

__________________

Notes:

1 Radio Free Asia, ‘Cambodia Elections 2013’ http://www.rfa.org/english/news/special/election/home.html.

2 Boyle, David and Cheang Sokha. ‘Opposition Leader Sam Rainsy Pardoned’ The Phnom Penh Post (12 July 2013) http://www.phnompenhpost.com/national/opposition-leader-sam-rainsy-pardoned

3 CIA The World Factbook, Last Updated 11 April 2014. Available at https://www.cia.gov/library/publications/the-world-factbook/geos/cb.html

4 Ibid.

5 Ibid.

7 Transparency International, 3 December 2013, “Corruption Perceptions Index 2013”, http://ticambodia.org/index.php/news/pressrelease/corruption-perceptions-index-cpi-2013

8 CIA The World Factbook, Last Updated January 7 2014. Available at https://www.cia.gov/library/publications/the-world-factbook/geos/cb.html

9 CCHR, “Open letter from CCHR concerning Draft Cyber Crime Law” (28 April 2014) http://bit.ly/1lZ5d9H

10 A Draft of the Law is available at: http://bit.ly/1msj3A3

11 CCHR, “Freedom of information and legislative transparency in Cambodia” (Briefing Note) (August 2014) http://cchrcambodia.org/index_old.php?url=media/media.php&p=analysis_detail.php&anid=60&id=5.

12 MoNASRI, 22 July 2007, “Access to Information: A clear policy framework for Cambodia”, p. 4.

13 Raymond Leos, supra note 20, p. 6.

14 Article 13 of the Archive Law 2005.

15 Article 14 of the Archives Law 2005

16 The policy of Deconcentration and Decentralization began with the adoption of the Law on Commune Elections 2001 and the Law on Administration and Management of Commune/Sangkat 2001.

17 Article 23 of the Law on the Administration and Management of Commune/​Sangkat 2001

18 Article 48 of the Law on the Administration and Management of Commune/​Sangkat 2001

19 Article 68 of the Organic Law

20 Article 51 of the Organic Law

21 The Anti-Corruption Law is available at the CCHR hosted Cambodian Human Rights Portal at: www.sithi.org/temp.php?url=view_law.php&&id=172.

23 Article 17, Law on Anti-Corruption 2010.

24 See Articles 17 and 20 of the Anti-Corruption Law 2010.

25 Son Chhay, as quoted on ABC, Radio Australia, 12 March 2010, transcript available at: www.radioaustralia.net.au/connectasia/stories/201003/s2843946.htm.

26Article 19: ‘The Public’s Right to Know: Principles on Freedom of Information Legislation’ (June 1999) http://bit.ly/1knelAp

27 United Nations Cambodia Office of the High Commissioner for Human Rights, Special Representative of the Secretary-General for human rights in Cambodia, June 2007, “Economic land concessions in Cambodia, A human rights perspective”.

28 Article 16 of the Expropriation Law 2009

29 ARTICLE 19, September 2011, “Cambodia: Draft Law on Access to Information”, Appendix 1.

30 Article 40 of the Draft Law on Access to Information

31 Ibid. Articles 6 to 16.

32 Ibid. Articles 41 to 67.

33 Ibid. Articles 68 to 69.

34 Ibid. Chapters Six to Eight.

35 Ibid. Article 5.

36Ibid. Article 80.

37 The Phnom Penh Post, “At Least Debate FOI Draft: SRP Lawmaker”, 2 March 2012.

39 CCHR, December 2010, “Report Summary, Business and Human Rights in Cambodia: Constructing the Three Pillars”, p. 2, available at: www.cchrcambodia.org/English/add_report/reports/2010_11-30_bhr_report_eng.pdf.

41 Sahmakum Teang Tnaut, December 2006, “Fact & Figures: Relocation or Removal?”, p. 2.

43 See the “Organization” section of the CNPA website at: cnpa.gov.kh/index.php?option=com _content&view=article&id=45&Itemid=119.

45 The Phnom Penh Post, 30 April 2010, “TOTAL Confirms $8m Social Fund”.

46 The Phnom Penh Post, 25 March 2011, “PM touts media task force”.

48 The Cambodia Daily , 8 November , 2012 : “Government Spokespersons Get Lessons in Handling the Press”

49 CCHR “Freedom of Information in Cambodia : A right to know or a culture of secrecy?”, Briefing Note (May 2012) : http://bit.ly/1whThAu

50 Ibid, p. 39.

51 The Phnom Penh Post of 10 March 2010.

52 United Nations Office of the High Commissioner of Human Rights Cambodia, June 2007, “Economic land concessions in Cambodia: A human rights perspective”, available at: www.sithi.org/landissue/source/ELC/OHCHR_ELC%20report_2007.pdf.

53 See Open Budget Initiative, Open Budget Report 2012, p.7, available at: http://internationalbudget.org/wp-content/uploads/OBI2012-Report-English.pdf

54 Open Budget Initiative, January 2013, Open Budget Index 2012, Budget Transparency Brief: Cambodia, Volume 4, available at: http://www.cambodianbudget.org/userfiles/Budget_Transparency_Brief_OBS2012-final-corrected.pdf

55 CCHR, “Where is My Justice,” Briefing Note, (24 March 2014), http://bit.ly/PKnacY

56 CCHR, “Excessive Use of Force at Workers’ Protest,” Case Study, (November 2013), http://bit.ly/PKshtM

57 CCHR, “CCHR condemns the RGC’s violent clampdown on human rights and the resulting deterioration of the state of democracy in Cambodia,” Press Release, (4 January 2014), http://bit.ly/1csqRy5

58 Cambodian Center for Independent, April 2012, Media Freedom of Information: Advancing Research & Actions, pp, available at http://www.ccimcambodia.org/report/FOI_survey_(30_April_2012).pdf,

59 Ibid.

60 The World Bank, February 2009, “Cambodia Linking Citizens and the State: An Assessment of Civil Society Contribution to Good Governance”, p. 19.

61 Ibid., pp. 19 – 20.

62 CCHR, Forums on Elections and Democratic Space, July 2011, p. 38.

63 Cambodian Center for Independent Media, April 2012, Media Freedom of Information: Advancing Research & Actions, pp, available at http://www.ccimcambodia.org/report/FOI_survey_(30_April_2012).pdf

64 Royal University of Phnom Penh Department of Media and Communication, ‘Cambodia Communications Review 2011’ (2011) <http://www.kas.de/wf/doc/kas_6048-1442-1-30.pdf?120228074206>.

65 Ibid, 20.

66 Ibid, 6.

70 See: CCHR, ‘The Case of Human Rights Defender Mam Sonando’ (Briefing Note) (August 2012) http://bit.ly/1apu7DL.

71 CCHR, ‘CCHR welcomes the Court of Appeal’s decision to release Mam Sonando but observes that the verdict was a classic example of “rule by law” rather than “rule of law”’ (Press Release) (20 March 2013) http://www.cchrcambodia.org/index_old.php?url=media/media.php&p=press_detail.php&prid=371&id=5

76 See CCHR: ‘The Ministry of Information ban all the radio stations from broadcasting foreign radio program during election campaign period’ (FoEX Alert) (29 June 2013) http://bit.ly/1e0u5Xy

77 CCHR et al, September 2010, “Cambodia Gagged: Democracy at Risk?”, in particular Chapter Four.

78 ARTICLE 19, December 2005, “Freedom of Expression and the Media”, p. 54.

79 Reporters Without Borders, February 2010, “Cambodia: Prime Minister, You Promised That No More Journalists Would Go To Prison”, p. 3.

80 Ibid.

81 The following nice Penal Code provisions undermine the right to freedom of expression: defamation (Article 305), public insult (Article 307), slanderous denunciation (Article 311), incitement – leading to or not leading to a crime (Article 495), incitement to discrimination (Article 496), contempt (Article 502), public comment to influence (Article 522), discrediting a judicial decision (Article 523) and false denunciation of judicial authorities (Article 524).

82 Cambodia Criminal Code 2009: http://bit.ly/1j79CDf

85 The Phnom Penh Post, 15 February 2011, “Opposition site blocked”.

86 In the past, there have been cases of journalists being threatened or even killed in suspicious circumstances. See also CCHR et al, supra note 60, p. 10.

87 The Phnom Penh Post, 6 January 2010, quoting Moeun Chhean Narridh, Director of the Cambodian Institute for Media Studies, in “Soldiers for free speech” by Ban Tharum.

88 CCHR: ‘Suspension of prominent land rights NGO confirms civil society fears regarding forthcoming NGO law.’ (12 August 2011) http://www.cchrcambodia.org/index_old.php?url=media/media.php&p=alert_detail.php&alid=5&id=5

90 See more in the ‘Submission to the UN Universal Periodic Review of Cambodia : For consideration at the 18th session of the UN working group in 2014’ (24 June 2013) http://www.cchrcambodia.org/admin/media/analysis/analysis/english/2013_08_22_Cambodia_Joint_UPR_Submission_Freedom_of_Expression_eng.pdf

91 For a comprehensive critique of the most recent draft of the LANGO please see CCHR “CCHR LANGO 4th Draft Analysis,” available at http://www.cchrcambodia.org/index_old.php?url=media/media.php&p=analysis_detail.php&anid=18&id=5

93 Better Factories Cambodia, available at: www.betterfactories.org/ILO/aboutBFC.aspx?z=2&c=1.