Freedom of Association and Assembly / Protests, National Security, Political Expression
Maseko v. The Prime Minister of Swaziland
On Appeal Contracts Expression
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Kong Raiya, a Cambodian university student, was arrested due to a Facebook post regarding a so-called “color revolution.” He was sentenced to 18 months in jail on March 15, 2016. No legal reasoning was given for the decision.
Columbia Global Freedom of Expression could not identify official legal and government records on the case and information on the case was derived from secondary sources. Columbia Global Freedom of Expression notes that media outlets may not provide complete information about this case. Additional information regarding legal matters will be updated as an official source becomes available.
Raiya was arrested on August 20, 2015, after posting on social media asking people to join him in a “color revolution.” The term “color revolution” generally refers to non-protest movements that have, in the past, toppled several authoritarian regimes. The term is generally used to refer to various related anti-government movements in the former Soviet Union and the Balkans during the early 2000s.
The statement at issue was published on August 7, 2015, as a Facebook status under the name “Soriya Koko,” which allegedly belonged to Raiya. The post stated, “Who dares to launch the color evolution with me? Someday in the future, I will launch the color revolution in order to change the cheap regime running Cambodian society; even if I am sent to prison or if I die, I am determined to do it.”
It was reported that, initially, Cambodian authorities could not find any crime with which to charge him because there was no existing charge for attempting to launch a “color revolution.” Nevertheless, Raiya was eventually charged and prosecuted under Articles 494 and 495 of the Criminal Code. The details of both articles are as follows:
Article 494: Conditions for Existence of Provocation
For the purpose of enforcement of the present Chapter, the provocation is punishable when it is committed:
Article 495: Provocation to Commit Crimes
The act of direct provocation aimed at committing a felony by one of the means specified in Article 503 (Conditions for Existence of Provocation) is punishable by a term of imprisonment from 6 (six) months to 2 (two) years and a fine from 1,000,000 (one million) Riels to 4,000,000 (four million) Riels, if the provocation produced no effect.
On March 15, 2016, on the basis of the criminal statutes above, Raiya was sentenced to 18 months by a Phnom Penh municipal court. Judges in Cambodia are not required to publish the reasoning behind their judgement, and accordingly, the judge in this case did not provide any rationale behind his decision.
Cambodian courts do not require judges to publish opinions regarding decisions. Accordingly, no decision was issued in this case. What follows is a narrative regarding the impact of the decision collected from news articles and reports from several prominent Phnom-Penh-based human rights NGOs.
In July 2015, Prime Minister Hun Sen publicly called upon the military to clamp down on any group attempting to incite so-called “color revolutions” in Cambodia.
Am Sam Athm, a senior coordinator at rights group LICHADO, reported that the arrest of Raiya and his trial were politically motivated and intended to induce a chilling effect on free speech in social media. He stated that Hun Sen’s actions would “deter other students and young people from expressing opinions. [The military clamp down] makes them concerned. This is a psychological tactic to prevent other young people from speaking out. There was no chaos, there was no damage. If we look at what [Raiya] wrote, he just asked who wanted to make a revolution with him. It cannot be interpreted as an incitement to start a color revolution.”
Sok Touch, a Political Science Professor who taught Raiya at university, stated that Raiya had no ability to start a revolution because he had neither the financial resources nor the human resources to do so. Sorthy So, a spokesman for the Cambodia Center for Independent Media, also said that Raiya’s statement posed no real danger to the Government; that he had merely expressed his ideas in an online forum.
However, Cambodian authorities do not appear to agree. They insist that a Facebook post can incite anarchy in the country and are increasingly concerned with issues regarding the use of social media. In July 2015, Prime Minister Hun Sen reportedly informed military officers that they “have to prevent any act of color revolution.” Following the Hun Sen’s speech, it was reported that the Minister of Defense, Tea Banh, called upon the military to “suppress any attempt at a color revolution.” The minister stated that color revolutions arise from a grassroots level and can topple a government with non-violent methods.
According to the Cambodian Center for Human Rights (CCHR), the number of people being arrested, accused, or prosecuted for online expression has dramatically risen since last year. As of February 2016, at least seven people have been arrested since August 2015, and at least 24 individuals have been publicly threatened.
Article 41 of the Cambodia’s constitution states “Khmer citizens shall have the freedom to express their personal opinions, the freedom of press, of publication and of assembly. No one can take abusively advantage of these rights to impinge on dignity of others, to affect the good traditions of the society, to violate public law and order and national security.” However, the freedom of expression and press is limited by the second sentence of the article which prescribes “The regime of the media shall be regulated by law.” It would appear that Cambodia’s commitment to the International Covenant on Civil and Political Rights (ICCPR) was unpersuasive (or not considered) in this case.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case contracts expression since the defendant’s right to freedom of expression was violated when the authorities imprisoned the student for a Facebook post that made reference to aspirations to begin a “color revolution.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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