The Cambodia Daily , Thursday, September 1, 2005
By Kevin Doyle
The Cambodia daily
The Supreme Court on Wednesday upheld the 2001 ruling of the Phnom Penh Municipal Court and ruled in favor of Foreign Minister Hor Namhong (pictured) in his defamation suit against Cambodia Daily journalist Kay Kimsong.
The Supreme Court fined Kay Kimsong 30,000,000 riel (approximately $7,500) for a newspaper article that quoted allegations by the late Senator Keo Bunthouk in the Senate against Hor Namhong regarding events at the Khmer Rouge camp known as Boeng Trabek during the 1975-1979 regime.
Both Hor Namhong and Keo Bunthouk were detained at the Boeng Trabek re-education camp where Cambodian intellectuals and members of the Cambodian royal family were imprisoned during the Khmer Rouge regime.
Announcing the verdict, Supreme Court Judge Khim Ponn rejected Kay Kimsong's appeal for a retrial or a dismissal of the lawsuit. Khim Ponn rejected the reporter's appeal on the grounds that an Appeals Court investigating judge reported that Keo Bunthouk, in a private meeting, had denied making the defamatory allegations against Hor Namhong, which were quoted in the article.
Keo Bunthouk, whose comments on the floor of the Senate were widely reported in 2001, did not appear at the Appeals Court in support of the investigating judge's claim, Kay Kimsong told the Supreme Court during an Aug 24 hearing. Keo Bunthouk, 74, died in June.
In a two-page appeal submitted to the Supreme Court, Kay Kimsong said he had not received a fair trial and noted numerous anomalies in the proceedings, which included his case being tried as a criminal case under Article 63 of the Untac Law and not as a civil case under the Cambodian Press Law, and an attempt by a Supreme Court clerk to elicit a bribe in return for stalling the case.
At the initial Phnom Penh Municipal Court trial in 2001, the presiding judge commented to Kay Kimsong's lawyer that she did not like newspapers or articles critical of the legal system, a comment that Kay Kimsong noted in his Supreme Court brief indicated "an obvious bias against journalists.
"Kay Kimsong also questioned in his brief why charges were dropped against two former foreign employees of the newspaper, a former editor-in-chief and a reporter, and were pursued against him solely. And why witnesses and former inmates of Boeng Trabek were not called to testify in court on the veracity of Keo Bunthouk's allegations.
Kay Kimsong also noted that the newspaper had published a clarification and a letter from Hor Namhong countering the comments by Keo Bunthouk. Hor Namhong said on Wednesday evening that the Supreme Court's verdict "re-affirmed the truth."
"I was a prisoner at Boeng Trabek. My two sisters, Hor Kim Aun and Hor Kim San, and their children all returned from France and were killed a few blocks away from me at the camp," Hor Namhong said by telephone."
I had about 30 relatives including my five siblings killed by the Khmer Rouge. That people said that I was Khmer Rouge, that was a serious insult to me and slanderous. I hate the Khmer Rouge so much when I recall this," he said.
Pen Samithy, president of the Cambodian Club of Journalists and editor of Rasmei Kampuchea newspaper, said that the courts should have adhered to the Press Law.
He questioned why prosecution was pursued against an individual journalist and not the newspaper responsible for the article.
Pen Samithy noted that Article 4 of the Press Law protects journalists reporting on government officials and official documents. Article 4 states that protection extends to "statements, meetings, meeting minutes or reports of the Executive branch, including statements of ministers and other officials."
"Regarding this story, they should not have used the penal law in this case. We have a Press Law," Pen Samithy said.
He pointed out that the verdict could have a chilling effect on other journalists."This will make writers feel afraid. It also affects freedom of expression. We have no way out, only the King as a last resort," he said, adding that Kay Kimsong was the least culpable individual in the affair. "Mr Hor Namhong should consider this issue seriously. It would be better if he withdraws the case."
Um Sarin, president of the Cambodian Association for the Protection of Journalists, also said the courts had used the wrong law in the case.
"They should give up their habit of harassing the press.... Such rulings are frightening journalists from reporting the truth," he said.
The Cambodia Daily's publisher, Bernard Krisher, said he believed Kay Kimsong was only "a minor figure" in the defamation case and placed responsibility for the story on the two US nationals, who no longer work for the newspaper.
"So I'm rather puzzled why he [Kay Kimsong] is the victim and not the two people who decided to publish the story. I'm puzzled why...The Cambodia Daily itself was not the target," Krisher said by phone from Tokyo, where he is staying.
He also questioned why the court did not agree to Kay Kimsong's request in the appeal to call witnesses who could testify to Hor Namhong's role in the camp, nor investigate his description of a court clerk's bribe attempt in December to delay the trial.
"Kay Kimsong is unable to pay this fine," Krisher said. "He does not earn that much in a year."
Government Spokesman and Information Minister Khieu Kanharith lauded the verdict and supported the use of the Untac Law against reporters.
"The Supreme Court decision was right because the complaint filed by Hor Namhong was separate from the Press Law.
The Press Law only protects the freedom of expression, but when a journalist quotes someone attacking an individual that is an accusation, in which case the court can use the Untac Law," Hor Namhong said.
Chea Vannath, director of the Center for Social Development, said that the verdict would not convince the public that the trial was fair. "The public is still skeptical of the court's ability because the courts have a bleak reputation," she said.
(Additional reporting by Lor Chandara)
Khmerization's comment: This is another example of Hor Namhong using the CPP-controlled court to victimise the hapless reporter who was just doing his job as a reporter. In this case, the reporter was just faultless. It was the newspaper and the editor and publisher who were 'at fault', if there is any fault, because they were the ones who decided to publish what the reporter wrote. If they didn't publish the report it would not be in the public domain. Now, for sensible people, especially in the West, in such situation the 'defamed' will sue the newspaper or the publisher instead of the reporter. Hor Namhong chose to sue this vulnerable and hapless reporter because he is poor and can't defend himself. Hor Namhong chose not sue the newspaper because it is hard to win because the newspaper has the money and probably the political backing (Bernard Krisher is a US citizen). One can see the court was extremely biased in its judgement as many of the defendant's witnesses and victims of the Boeng Trabek Prison were not called to testify. Also it used the wrong laws to prosecute the case.
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