The Cambodian government should withdraw its draft state of emergency law, which would empower Prime Minister Hun Sen to override fundamental human rights protections, Human Rights Watch said. On March 31, 2020, the Council of Ministers approved the “Law on Governing the Country in a State of Emergency,” which would allow the government to restrict all civil and political liberties and target human rights, democracy, and media groups. The one-party National Assembly is expected to vote on the bill later this week or early next week.
Hun Sen has claimed that the law is necessary to respond to the COVID-19 pandemic. The government should submit a new draft that addresses the COVID-19 public health crisis while protecting basic rights, including the rights to freedom of expression, association, and privacy, Human Rights Watch said.
“Even before the coronavirus, Hun Sen ran roughshod over human rights, so these sweeping, undefined, and unchecked powers should set off alarm bells among Cambodia’s friends and donors,” said Brad Adams, Asia director. “Instead of passing laws to protect public health, the Cambodian government is using the COVID-19 pandemic as a pretext to assert absolute power over all aspects of civil, political, social, and economic life – all without any time limits or checks on abuses of power.”
The bill contains many overly broad and vague provisions that would violate fundamental rights without specifying why these measures are necessary and proportionate to address the public health emergency.
Under article 5, the government would have:
- Unlimited surveillance of telecommunications: “Putting in place measures to surveil and keep track of all means [of communication] for the receipt of information via telecommunication contact systems in every form” (art. 5(10));
- Control of media and social media: “Prohibiting or restricting the distribution or broadcast of information that could generate public alarm or fear or generate unrest, or that could bring about damage to national security, or that could bring into being confusion regarding the state of emergency” (art. 5(10) and (11));
- Catch-all unfettered powers: “Putting in place other measures that are deemed appropriate for and necessary to responding to the state of emergency” (art. 5(12)).
Article 5 would also give the government complete authority to restrict freedom of movement and assembly.
Articles 1 and 4 of the bill would allow the law to be used even after the COVID-19 crisis ends. It says that a state of emergency can be declared when, “The people of the nation face danger” and “in order to defend national security, public order, the lives and health of citizens as well as property and the environment,” and “particularly” in cases of “an urgent public health crisis arising from the wide-spreading of contagious disease” and of “grave disruption of national security and public order” (arts. 1 and 4). Just as problematic, article 3 makes it clear that a state of emergency could be declared “for a limited or unlimited period of time,” without specifying the basis for making decisions about the length (art. 3).
The bill also would create a permanent opportunity for the government to declare martial law. Article 5(2) states that, “At times of war, or in other circumstances in which national security is confronted with grave danger, the country can be governed while under a state of emergency via a martial law regime” [emphasis added].
Notably, the bill fails to provide any oversight for the use of these sweeping executive powers. On April 1, a Council of Ministers statement said that a state of emergency would not be declared for longer than three months – but added that the government would have discretion to extend it.
“The emergency law will allow Hun Sen, at long last, to run the country by fiat,” Adams said. “It will make his dictatorial rule legal and official.”
Human Rights Watch expressed grave concern that the law could be easily misused against critics of the government and nongovernmental organizations. The bill includes disproportionate fines and prison sentences for vague criminal offenses. For instance, article 7 creates the “crime of obstructing operations during a state of emergency,” punishable by one to five years in prison or five to ten years if the obstruction “leads to public unrest or adversely affects national security.” Article 8 would create the “crime of not respecting measures” required by the government, with punishments of up to one year in prison, or five to ten years if it “leads to public unrest.” These provisions could easily be used against critics of the government’s handling of the current COVID-19 crisis – or any other situation in which a state of emergency is declared.
Article 9 creates a serious risk for civil society organizations by stating that, “Legal entities can be deemed criminally responsible” for violations of the law. The Cambodian government has long targeted independent media as well as organizations that promote human rights and democracy. Fines up to US$250,000 would bankrupt most Cambodian organizations.
The draft law comes amid a longstanding crackdown by the Cambodian government on civil society, the media, critics, and the opposition. Independent newspapers and radio outlets have been shut or sold to owners with ties to the government. Social media networks face surveillance and intervention by the government, reinforced by the government’s adoption of the 2018 decree called, “Publication Controls of Website and Social Media Processing via Internet,” which allows for interference with online media and government censorship.
The International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is a state party, allows countries to adopt exceptional and temporary restrictions on certain rights that would not otherwise be permitted “in times of public emergency which threatens the life of the nation.” But the measures must be only those “strictly required by the exigencies of the situation.”
The Human Rights Committee, which interprets the covenant, clarified that states parties are required to “provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation.” The committee stressed that such measures “are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened.”
On March 16, a group of United Nations human rights experts declared that “Emergency declarations based on the COVID-19 outbreak … should not function as a cover for repressive action under the guise of protecting health […] and should not be used simply to quash dissent.”
“From the start of the COVID-19 pandemic, Hun Sen has denied or downplayed the risks posed to Cambodia by the coronavirus in Cambodia, but evidently he’s more than willing to join the bandwagon of autocratic leaders using the crisis to justify giving themselves vastly expanded powers,” Adams said. “The UN Office of the High Commissioner for Human Rights should remind Hun Sen that if he wants to suspend certain rights, he has to notify the UN Human Rights Committee. But pandemic or not, many rights cannot be suspended, and Cambodia will remain bound by its international legal commitments.”