About 50 armed police officers surrounded the home of longtime Cambodian union leader Rong Chhun in Phnom Penh on July 31, 2020, forcing their way into his home before arresting him.
His alleged crime was incitement to commit a felony or to disturb social security, stemming from a social media post in which he accused the Cambodian government of ceding land in border negotiations with neighboring Vietnam.
The ensuing trial and conviction of Rong Chhun, along with two younger activists, highlighted how Cambodia’s government and judiciary have warped criminal incitement charges to suppress dissent amid a crackdown on the ruling party’s critics and political opponents, according to a newly released report from the American Bar Association.
In its report on the trial, ABA’s Center for Human Rights notes that the use of Article 495 of Cambodia’s Criminal Code, which defines incitement, has been heavily criticized inside and outside Cambodia.
“Cases where individuals are charged under the provisions are routinely decried as being purely political in nature, a means of silencing activists or those critical of the government,” it writes. “The conviction of Rong Chhun, is unlikely to change many of those opinions.”
Even as arrests over speech become fairly commonplace in Cambodia, Rong Chhun’s arrest made waves. He has long headed the country’s largest independent teacher’s union, as well as leading a union federation that linked up with the main opposition party in 2013 for massive protests that briefly shut down the garment sector and fueled anti-government demonstrations.
He was even appointed to an opposition seat on the National Election Commission, as part of a short-lived power-sharing deal after the 2013 election.
But as Prime Minister Hun Sen’s tolerance for dissent has shriveled over the past decade, Rong Chhun has kept up his provocations, even on the highly sensitive issue of Cambodia’s border with Vietnam — a historical sore spot given Hun Sen was initially installed by Hanoi.
The ABA report notes that Rong Chhun willingly admitted to writing and disseminating the Facebook post, which he said was based on interviews with residents living near the border who said they had lost land.
However, the reports details how prosecutors failed to show that Rong Chhun had any intent to incite others to commit a felony or disturb social order — which should be necessary for judges to reach a guilty verdict.
During his trial, which began on Jan. 15, 2021, Rong Chhun told the court that his post was intended to bring public attention to the ostensibly lost land with the hopes that the government would intervene to resolve the issue.
Prosecutors argued that his post was meant to confuse the public, causing unrest and serious disturbance to society, and said he had no basis for his conclusions, or expertise to make technical determinations about where the border should be drawn.
Judges sided with the prosecution, rejecting Rong Chhun’s claims that his post was a good-faith call for help based on his own observations and interviews. It also rejected his claim that Sar Kanika and Ton Nimol, the activists charged alongside him, were not involved in his writing of the post. They each received 20 months in prison.
“In Chhun’s case, the judge found that the three accused knew that members of the public would see that statement and that therefore they had an intention to cause the public to be confused and angry with both the Joint Committee on Border Affairs and the Cambodian government more generally,” the ABA report says.
“This, the court found, would manifest itself in protests, chaos, and unrest and therefore a disturbance to social security. Again, it should be noted that no protests broke out following the issuance of Rong Chhun’s statement, nor did it seem likely at the time that any would. Protests only occurred following Rong Chhun’s arrest in connection with the statement.”
The report notes that the government sent officials to the same villages where Rong Chhun conducted his interviews, and determined there was no evidence of border land being lost — findings that officials then publicized widely.
“In this sense, the arrest and conviction of Rong Chhun was superfluous to the need to clear up confusion on the part of citizens; the steps taken by the Prime Minister following Rong Chhun’s issuance of the statement should have been sufficient to protect national security and public order,” the report says.
The ABA highlights Rong Chhun’s case as just the latest example of Cambodia’s courts taking a broad interpretation of Article 495 — the criminal incitement provision — when applied to dissidents, activists and opposition politicians.
The group calls on international stakeholders — including the United Nations, United States and European Union — to “encourage Cambodia to comply with international law and discontinue the persecution of human rights defenders like Rong Chhun.”
And it calls for legal reforms, including amendments to the criminal code to require judges to explicitly discuss arguments that prove intent to commit a crime, and to explicitly refer to sentencing principles outlined in the code when making sentencing decisions.
Chin Malin, a spokesperson for Cambodia’s Justice Ministry, said the ABA report was based on bad information from opposition-aligned groups, and dismissed its conclusions.
“Everyone knows that [Rong Chhun] is a political activist of the opposition party, but he uses the image of civil society organizations to cover up his political activities and to show his wicked intentions in order to create confusion, cast doubt on the people, lose confidence, undermine efforts, destroy diplomatic relations, and especially ignite racial hatred, which we see that his leaders and their factions always do, causing international condemnation to flow in the past,” Chin Malin said.
“And in court, he had no basis for acquittal based on the basic evidence that the authorities had, aside from emphasizing that this was the right to freedom of expression,” he added.
Chin Malin added that the government has already communicated with diplomats about the case to “clarify” information coming from critics.
“And they respect the interpretation of the Cambodian legal mechanism, especially the sovereignty of Cambodia, which they did not try to interfere in and also did not issue orders to Cambodia as a sovereign state,” he said.
In response to Chin Malin’s comments, a consultant working for the ABA Center for Human Rights said “the report was based on reliable evidence from multiple credible sources. All conclusions are as the result of careful, independent analysis based on the information available.”
The ABA is only the latest group to raise questions about Rong Chhun’s case — and the use of incitement charges to suppress free speech in Cambodia.
The U.N.’s Office for the High Commissioner for Human Rights, along with a number of local human rights group, argued in 2020 that the union leader was only expressing his opinion and that his arrest appeared to be arbitrary.
Government officials shrugged off those concerns, while Prime Minister Hun Sen appeared to threaten those protesting Rong Chhun’s arrest. The premier also doubled down on the effective censorship of criticism related to the border.
“Border issues aren’t a joke. It will cause a war between Cambodia and the neighboring country through your messages and incitement along the border,” Hun Sen said in a speech in August 2020.
“Now, everyone who talks about that issue will be arrested for a red-handed crime,” he added.
Former opposition lawmakers Um Sam An and Hong Sokhour were also arrested a few years earlier for their advocacy around the border, which became a hot button issue following alleged Vietnamese border incursions at the time.
However, a wide range of issues have become off-limits for ruling party officials in recent years, from environmental destruction to criticism of the government’s COVID-19 response to satirical posts mocking the prime minister or the king.
Rights group Licadho currently lists 49 “prisoners of interest” in Cambodia, whose cases are overtly political and often involve incitement charges.
Earlier this year, leaders of the dissolved opposition Cambodia National Rescue Party were sentenced in absentia in a mass incitement trial mostly related to their social media activity from abroad.
Rong Chhun told VOA Khmer last month that he would not avoid future criticism of the government if he felt it was not acting in the best interests of Cambodia.
“My position is that if the government does anything contrary to the truth and abuses it, or if it will not benefit Cambodia or does things that affect the well-being of the people, I will still keep telling the truth. I cannot stop,” he said.
“Not only am I saying this, but I will make more demands. I will continue to lead the workers, the teachers, to make further demands, even if I face arrest and continue to be arrested.”
He said the ABA report reflected the facts of his case, and he hoped it would help reform the judiciary “into a court that serves the profession rather than being a tool of the powerful and a pawn for the orders of the powerful, the rich.”