Draft law responding to COVID-19 enables open-ended emergency powers, martial law
Draft enables bans on sharing information that ‘could scare the public’ or ‘cause confusion’
Prison sentences of up to 10 years for disobeying or obstructing emergency measures
The Cambodian authorities must urgently withdraw or substantially redraft the egregious State of Emergency Law which poses a grave threat to human rights in Cambodia, said Amnesty International today.
“These unprecedented powers are wildly disproportionate and threaten to permanently undercut the human rights of everyone in Cambodia,” said Nicholas Bequelin, Amnesty International’s Regional Director.
“Any emergency measures responding to COVID-19 or other emergencies must be proportionate, strictly necessary, and have the minimal possible impact on human rights. 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.”
This law should be seen for what it is – a naked power grab which seeks to manipulate the COVID-19 crisis in order to severely undercut the human rights of everyone in Cambodia.Nicholas Bequelin, Regional Director
The draft law contains no checks and balances or periodic reviews of states of emergency, with the government only obliged to “inform on a regular basis” the National Assembly and the Senate of emergency measures taken. It also allows for the invocation of martial law “in the event of war, or in any other circumstances in which there is a serious risk to national security”, which can be broadly interpreted.
“This law should be seen for what it is – a naked power grab which seeks to manipulate the COVID-19 crisis in order to severely undercut the human rights of everyone in Cambodia. The Cambodian government must withdraw the draft law or substantially amend it in order to bring it into line with international human rights standards,” said Nicholas Bequelin.
12 new emergency powers include tech surveillance and censorship
The draft law bestows 12 specific powers upon the government in times of emergency, in addition to a catch-all clause bestowing unlimited powers by authorising any “other measures that are deemed appropriate and necessary in response to the state of emergency.” The law’s vaguely worded provisions allow for broad interpretation that could be used to target anyone who criticizes the government or shares information about the virus or other emergencies.
The specifically named powers include provisions for conducting surveillance on all telecommunications mediums “using any means necessary”, and the power to ban or restrict the “distribution of information that could scare the public, cause unrest, or that can negatively impact national security, or that can cause confusion in response to the state of emergency”. Other powers include restrictions on freedom of movement and assembly, the seizure of private property, and the power to enforce quarantines.
The law establishes severe criminal penalties for failure to observe any emergency measures. “Wilfully blocking or obstructing the execution of measures related to the state of emergency” carries a prison sentence of up to five years, rising to 10 years “if this causes civil unrest or affects national security”. “Wilfully disobeying” any of the emergency powers created by the law carries a prison sentence of up to one year, rising to five years if such ‘disobedience’ causes civil unrest. Legal entities such as media outlets and non-governmental organizations that violate the law face a range of additional penalties, including dissolution.
“These penalties are utterly unjustifiable, even in emergency situations. It is truly outrageous that the Cambodian government is seeking to criminalize the sharing of information deemed frightening to the Cambodian public, which could include verifiably true information about public health or security. It is vital that that freedom of expression is respected in times of crisis, including the COVID-19 pandemic,” said Nicholas Bequelin.
A draft of the Law on the Management of the Nation in a State of Emergency was first leaked on Tuesday, 31 March, and later verified by a government official. Prime Minister Hun Sen reportedly suggested on Monday that the draft law would be sent to the Council of Ministers for approval on Friday, 3 April, before being sent to the National Assembly, the Senate, and ultimately to the King for promulgation.
Article 22 of the Cambodian Constitution provides for a state of emergency, stating, “when the nation faces danger, the King, with the joint approval of the Prime Minister, the President of the National Assembly and the President of the Senate, shall make a proclamation to the people putting the country into a state of emergency.” A state of emergency has never before been invoked in Cambodia and there is no existing legislation governing emergencies.
The draft law leaked on 31 March allows for the invocation of states of emergency whenever “the nation is facing a great risk, such as in the event of accidents borne out of war or an invasion by foreign forces, an imminent danger to public health caused by the expansion of a pandemic, grave disruption to national security and to public order, or a grave natural disaster that presents a risk or could cause widespread danger across the nation.”
The previous day, Prime Minister Hun Sen also threatened prominent human rights defender Am Sam Ath, deputy director of local rights group LICADHO, with arrest for speaking publicly about restrictions of freedom of expression related to the COVID-19 pandemic. Addressing Mr. Am Sam Ath, the Prime Minister stated, “You must be very careful with your speech in this circumstance. Even if the state of emergency law has yet come into force, I can still arrest you.”
Although emergency measures are permitted under international human rights law under certain circumstances, they must be strictly proportionate to the emergency at hand and must not unduly restrict human rights. Article 4 of the International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is a State Party, states that any derogation from covenant rights in times of emergency is only permitted “to the extent strictly required by the exigencies of the situation”. A human rights-compliant law governing states of emergency must only allow for time-limited states of emergency and must contain robust parliamentary and judicial checks and balances.
Though some necessary and proportionate restrictions of certain human rights are permissible in times of emergency, some human rights are non-derogable, meaning they cannot be restricted even in genuine emergencies. These include the non-derogable principle of legality in the field of criminal law, which requires that all criminal penalties be clear, precise, and narrowly defined. Moreover, any penalties for non-compliance with emergency measures must be strictly proportionate to nature of the emergency itself. Due to their excessively vague and broad nature, the criminal penalties outlined in the draft law impermissibly violate Cambodia’s non-derogable obligation to respect the principle of legality and fair trial rights under Article 15 of the ICCPR.
Given the elevated risks of transmission of COVID-19 in prisons and other places of detention, prison sentences are likely to further compound the public health problems caused by the pandemic. Prison sentences solely for the breach of COVID-19 related isolation and distancing measures will in all likelihood violate international law, on the basis that they will not be necessary and proportionate.
On 16 March, a group of 24 UN human rights experts stated that “restrictions taken to respond to [COVID-19] must be motivated by legitimate public health goals and should not be used simply to quash dissent” and that all “restrictions should be narrowly tailored and should be the least intrusive means to protect public health.”
COVID-19 AND HUMAN RIGHTS
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