Draft Law for State of Emergency Reveals New Sweeping Powers

Cambodian Prime Minister Hun Sen (L) salutes accompanied by his son, Commander of Cambodian Infantry Army, Lieutenant General Hun Manet (R) during inspection of troops at a ceremony marking the 20th anniversay of the formation of Cambodian Infantry Army in Phnom Penh on January 24, 2019. Photo AFP

As the government mulls declaring a state of emergency, Thmey Thmey takes an in-depth look at what this might mean for Cambodia and Cambodians during the COVID-19 pandemic and beyond.

PHNOM PENH--Following a high-level meeting of the Standing Committee of the Cabinet on March 31, a new law detailing governance during a state of emergency looks set to be rushed through the National Assembly and the Senate. This is ostensibly to combat the Coronavirus Disease 2019 (COVID-19) although Prime Minister Hun Sen has publicly warned that this law will affect civil rights. 

“There is no law to put the country in a state of emergency, but we need to have a law drafted to make it easier to place the country in state of emergency in a smooth fashion,” Hun Sen said in a press conference on March 30. 

While he previously said that he did not want to declare a state of emergency and would instead wait to see how the COVID-19 situation in Cambodia develops, Hun Sen has proceeded with the approval of the Standing Committee of the Cabinet and said he expects the draft law to pass the National Assembly quickly.

On April 1, King Norodom Sihamoni and Queen Norodom Monineath Sihanouk left Cambodia for China, where they will undergo medical checkups. 

The king’s absence from the country leaves President of the Senate Say Chhum as acting head of state who, once the draft law will have passed the senate, would perform the constitutional duties of the king by signing it into law.

A version of the draft law entitled Law on the Administration of the Country in a State of Emergency was obtained but could not be verified by Ministry of Justice spokesman Chin Malin who said that he could only comment on official government documents as and when they are released. He did not specify when an official copy of the law would be released.

The Unconfirmed Draft Law Obtained 

As such, Thmey Thmey has obtained an unofficial translation of the text of the draft law, so there may be discrepancies between the translation and the intention of the government given the nuance of the Khmer language. Similarly, this is a draft law and therefore subject to change. 

Consisting of five chapters and 11 articles, the purpose of the law is stated as to “protect national security and public order, protect life and health and the people as well as protect the property and the environment,” the text reads in Article 1 of Chapter 1. 

Chapter 2 seems to suggest that, once declared, a state of emergency could last indefinitely as Article 3 states it may be applied for a limited or unlimited period of time and can only be ended by royal decree. However, on April 3 an amendment was made limiting a state of emergency to three months, after which the government will have to renew the state of emergency, according to a post on Hun Sen’s official Facebook page. The post gave no details as to the mechanisms for renewing a state of emergency.

Article 4 of Chapter 2 defines situations or events that could trigger the government to declare a state of emergency, which the translation obtained by Thmey Thmey details as “when the nation is at risk of serious danger, war or foreign aggression, a public health emergency: caused by an epidemic of chaos, serious damage to national security and public order, as well as serious disasters that threaten or cause harm [to] spread [at a] nationwide level.” The language opts for open-ended terms as to what would constitute a national security threat. 

What follows is a series of restrictions on the freedom of movement, the freedom of gatherings, as well as restrictions on work and occupations without detail, leaving final judgement on interpretation to the government. It also notes that there will be limits placed on people leaving their residences should the government declare a state of emergency, leaving it to the government to introduce quarantine measures it sees fit in response to a disease-induced crisis. 

For Ny Sokha, director of ADHOC—a Cambodian NGO focused on human rights and development—the law may be necessary but should be limited to tackling COVID-19. “For me, I want [the] government to only implement a law on controlling the virus: Please don’t create a law that deal with other things.

“If we want to have [a] proper law, we can wait until after all stakeholders have no more arguments [or] political conflicts to bring their ideas to create a better law,” he said in a telephone interview. “For now, the law needs to focus on preventing the spread of COVID-19.” 



Enhanced Surveillance and Information Control

The new law would appear to grant the government power to monitor and access “information through all forms of telecommunications.” Hun Sen has previously said that the government retains the right to wiretap individuals if doing so could be presented as necessary to a judge. 

The clause in Article 5, Chapter 3 of the draft law threatens the “prohibition or limitation of the distribution or dissemination of information that could cause fear,” but fails to set criteria for what fear-inducing information may consist of. 

As of March 26, Cambodian human-rights NGO LICADHO had recorded 24 cases of Cambodian citizens being detained over “spreading fake news” since the COVID-19 pandemic began. 

In many of these cases, the “fake news” was disseminated through private messaging apps, including the case of a 14-year-old girl who was arrested in her home and forced to apologize to the government. Five who were arrested have been sent to pre-trial detention while the remaining 19 were “re-educated” after promising not to spread fake news again, according to LICADHO’s data.

Chapter 3 lays out a comprehensive, yet ultimately vague, set of restrictions and measures that the government will be able to enact when a state of emergency is declared, also granting the government power to add to these measures indefinitely.

Similarly, the draft law notes that a transfer of power from the civilian government to the armed forces would be possible to ensure the implementation of the government’s new powers. This, the draft law states, is akin to times of war “or other situations where national security is at serious risk” and during which the administration of the country can be carried out under martial law. 

“The Royal Government of Cambodia in general has no intention to restrict the freedom of the peoples’ travels around inside or outside the country of all forms: In other words, we love all lawful freedoms,” said Ek Tha, spokesman for the Council of Ministers, and standing vice-chairman of the Royal Government Spokesperson Unit, who said he could not confirm if martial law would be authorized in a state of emergency.

While declining to confirm the text of the draft law obtained, he said that the COVID-19 pandemic had forced the government to look into the possibility of declaring a state of emergency to safeguard and protect the country’s and its peoples’ interests.

“Here is the main point in general: The government will impose the state of emergency—in the event of being harmed by any unlawful forces or other elements such as the spreads of Coronavirus/ COVID-19 to great extent that could place the nation in danger,” said Tha, adding that experts from concerned institutions will be consulted should the law be put into practice. 

He declined to mention which experts from which institutions might help the government decide on how best to implement a state of emergency.

Article 6 of Chapter 3 ostensibly acts as a measure of accountability by requiring the government to “regularly report on the measures it has taken in a national emergency to the National Assembly and the Senate.” 

However, the Cambodian People’s Party has held all 125 seats in the National Assembly and 58 of the 62 Senate seats since the 2018 national elections—the Cambodia National Rescue Party was dissolved by the Supreme Court in 2017and subsequently did not take part in the election. 

“Let’s put it this way,” Tha said. “Whatever [action] the government takes [is] supported [and] endorsed by law and order: We are the state of law.” 

Consequences for Cambodia and Cambodians

Chapter 4 appears to deal with the consequences that lie in wait for those who violate the terms of the new law, with penalties ranging from one month to 10 years in prison, coupled with fines of up to 1 billion riels (roughly $247,400) for violations deemed more serious by the state. 

Wordings detail the potential punishments for “obstructing operations during a state of emergency” and “disobeying the measures in place during a state of emergency” without detail as to the nature of the crimes. 

Lastly, Chapter 5 is perhaps one of the most consequential, in that it effectively releases the government from having to follow any previous laws.

“All provisions contrary to this law shall be abrogated,” reads Article 10 of Chapter 5, which in its simplicity, seems to ensure that no pre-existing laws can be used to challenge the government.  

Amnesty International on April 2 released a statement asking the Cambodian government to withdraw or substantially redraft what it called the “egregious” state of emergency law.

“Any emergency measures responding to COVID-19 or other emergencies must be proportionate, strictly necessary, and have the minimal possible impact on human rights,” said Nicholas Bequelin, Amnesty International’s regional director. “Instead of targeting critics and enacting this draconian law, the Cambodian government should be focusing on protecting the right to health through the prevention and treatment of COVID-19.” 

While international observers have expressed opposition to the proposed law, ADHOC’s Sokha offered a more measured approach and said that such a law is necessary, provided it only extends to addressing the COVID-19 pandemic.

“Previously, even though there’s no [emergency] law yet, we have seen situation where those who work on social issues or political issues, activists and opposition party members, have been arrested,” he said. “It concerns us that, if the government enacts this law, it can be used as tool in addition to power which government has used before. 



“We still hope that our political leaders are mature enough to discuss any issues with one another with an open mind, and we also hope that the government won’t use this law to intimidate others,” he said. “I think this point is worrisome because we don’t know what will happen in the future or when the government will use this law again.” 



Meanwhile, Ek Tha, spokesman of the Council of Ministers, said that critics of the law should not view it so harshly, arguing that all stakeholders must differentiate between the proposed draft law and the one that will eventually pass the National Assembly and the Senate.



“That is to say that, the two branches have separate functions as said and cannot [violate] of one another,” Tha said. “The critics have [the] wrong legal interpretation of the situation and many of them get lost when it comes to legal aspects.”



 


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