Surveillance Rears Its Ugly Head in Cambodia
1 August 2007 7:00 pm

Cambodia’s National Assembly and Senate passed the Law on Counter-Terrorism (LCT) on 26 June 2007 and 10 July 2007, respectively, currently awaiting the signature of the king before it can come into effect. There is concern about the implications of this law for the human rights defenders in the country. 
When Cambodia’s National Assembly and Senate passed the Law on Counter-Terrorism (LCT) on 26 June 2007 and 10 July 2007, respectively, human rights defenders across the country shifted uneasily at the implications this law could have on their work of promoting and protecting human rights in the country. Right now, the law is before the king as it needs to be signed by him before it can come into effect.

The law is causing a great deal of concern among human rights defenders in the country, not only because it is viewed as dramatically expanding the scope of anti-terror legislation as compared to its predecessor, the Law on Punishment on the Acts of Terrorism, but it also contains a provision that may be abused and used to harass human rights defenders in their work through unnecessary intrusion into their privacy.

Article 88 of the LCT allows a prosecutor or an investigating judge who is currently investigating an alleged offence under the law to authorise an investigator to inspect or put under surveillance bank accounts, legal documents, telephone lines, and computer systems that are suspected under reasonable grounds to have been used to commit an offense under this law.  As a general rule, the monitoring of telephone lines cannot be longer than two months, but it may be continued for an extended period if authorised by a prosecutor or an investigating judge. Moreover, under this provision, any person may be imprisoned from one to five years if by reason of his/her profession, he/she has knowledge of the said surveillance and informs the person under surveillance of this, or if he/she provides a false, incomplete, or mistaken document to the authorities and does not inform them of this fact.

This type of provision is appearing more and more in laws designed to counter terrorism all over the world. The conduct of surveillance operations is now generally viewed as an indispensable tool in fighting terrorism. However, there are two sides to the conduct of surveillance operations. The dark side of surveillance is that it can act to violate the rights of individuals by unnecessarily intruding upon their privacy. On the other hand, surveillance may also be a key to preventing terrorist acts, saving thousands of lives.

The right to privacy is protected under Article 17 of the International Covenant on Civil and Political Rights (ICCPR), where “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour and reputation.” In the General Comments of the Committee on Civil and Political Rights, the term “unlawful” was interpreted to mean that there can be no interference of this right except those provided for under the law and the law itself must be consistent with the provisions, aims, and objectives of the ICCPR. The Committee further explained that the term “arbitrary interference” includes interference provided for under the law.¹

Exceptions may be made to the general right to privacy and several human rights principles have resulted from interpretation of these exceptions, including that there must be clear and detailed rules on why and how to derogate the right. This derogation is based on the rationale that activities like interception of communications or monitoring telephone calls is a “serious interference” with private life.  Article 88 of the LCT, however, clearly contravenes this principle as it fails to clarify how to conduct these surveillance activities. Under the LCT, the investigator authorised by the prosecutor or the judge is given the broad mandate to “examine”, “put under surveillance”, “inspect”, “monitor”, and “access” bank information, computer files, and telephone calls.

Any interference to the right to privacy must also be directed towards a legitimate aim. Article 88 does provide that the requirement of “reasonable ground” must be fulfilled before a prosecutor of judge can authorise the conduct of any surveillance activity. On the other hand, Prime Minister Hun Sen’s Cambodia’s People Party, the country’s ruling party, is also known to use laws to further their political agendas and even personal interests. On 24 November 2000, for instance, the Cambodian Freedom Fighters (CFF) attacked the buildings of the Council of Ministers, the Ministry of National Defence, and the Ministry of Rural Development in Phnom Penh. In the aftermath of the attacks, authorities arrested and detained at least 200 suspects and charged 32 with terrorism under Article 2 of the Law on Punishment on the Acts of Terrorism. The Cambodian government alleged that these persons were members of the CFF.  Most of those accused, however, were later on verified to be affiliated with either the opposition Sam Rainsy Party or the Funcincpec Party.  Those who were arrested and detained claimed that they were intimidated and tortured by authorities to extract confessions. Incidents like these provide foundation to fears of human rights defenders that the LCT may be used by Cambodian authorities to silence dissenting voices and to suppress critics.

Finally, there must be adequate remedial measures installed for individuals whose privacy has been interfered with under the law. The Committee on Civil and Political Rights explained in its General Comments that states must establish effective measures to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorised by law to receive, process, and use it, and is never used for purposes incompatible with the ICCPR. Every person must be able to ascertain what personal data is stored about him/her and for what purpose. Every person must also be able to ascertain which public authority or government institution controls or has possession of files containing his/her personal data. If such files contain incorrect data or the data was collected contrary to the provisions under the law, every person must have the right to request rectification or elimination of the same.² Article 88 does not provide for the kind of remedy described above.  Instead, it penalises a person who informs another person of the fact that he/she is under surveillance. 

Because of the thousands of deaths caused by terrorist activities around the world, there is the need to recognise that surveillance can be a necessity. However, the rules on why and how it is conducted must be clear, precise, and unambiguous.  Surveillance must also be conducted towards a legitimate aim. Any arbitrary use of surveillance by the government should be strictly unpermitted under the law. There should also be remedial measures established for individuals whose rights have been interfered with under a law.

Article 88 of the LCT does not have any of these safeguards.  It is a provision that can easily be subject to abuse, a clear rearing of the ugly head of surveillance. Such a provision should not be implemented as it clearly bestows upon the government the unfettered opportunity to further commit human rights violations in Cambodia.

¹  CCPR General Comments 16: The right to respect of privacy, family, home, and correspondence, and protection of honour and reputation (Art. 17): 08/04/88.
² Id.