Opportunism, COVID-19, and Cambodia’s State of Emergency Law

Editor’s Note: This piece is part of Just Security‘s Assessing Emergency Powers During #COVID-19 series, which aims to highlight and give voice to legal and civil society voices from across the globe, assessing the specific legal consequences of declared and de facto emergencies. Previous contributions have covered ItalyHungaryBrazilPoland, the United Kingdom, Nigeria, and Colombia.

Cambodia has, to date, largely avoided the ravages of the ongoing global coronavirus pandemic. It has not, however, managed to avoid what Rob Berschinski and Reece Pelley have referred to as the “parallel pandemic” of using the spread of the virus “as a pretext to enact emergency measures that stifle dissent, sideline political opposition, and consolidate power.”

Cambodian Prime Minister Hun Sen and his ruling Cambodian People’s Party (CPP) (Cambodia remains a nominal monarchy although royal powers are now predominantly ceremonial in nature) have taken advantage of the ongoing pandemic in order to push through a state of emergency bill that creates additional levers through which ruling elites can utilize their dominance of legislative, executive, and judicial powers to exercise social control and maintain power. All this while Cambodia’s actual infection rate has remained extremely low.

“Small Country, Big Heart”: An Unlikely Early Pandemic Humanitarian Hero

Before the spread of the novel coronavirus became a global pandemic, Cambodia played the part of humanitarian hero in February, when it allowed the MS Westerdam, a Holland America Line cruise ship to dock in Cambodian waters and its passengers to disembark onto Cambodian soil. The ship had spent two weeks at sea after being denied access to ports in Japan, Taiwan, Guam, the Philippines, and Thailand due to fears of a potential coronavirus outbreak on board. The World Health Organization (WHO) praised Cambodia’s welcoming of the passengers, with WHO Director-General Dr. Tedros Adhanom Ghebreyesus citing Cambodia as an example of needed “international solidarity” in the face of COVID-19.

Hun Sen and the CPP carefully staged this humanitarian gesture, with government official Prak Sokhonn exclaiming “Cambodia: Small country, Big heart!” in a Facebook post. Hun Sen personally welcomed passengers as they disembarked from the ship, handing out roses and even hugging some passengers in an unusual display of welcome (hugging is not a typical Cambodian greeting).

According to BBC South East Asia Correspondent Jonathan Head, Hun Sen and the CPP likely chose to welcome the ship for a variety of reasons. First, to show solidarity with China, on whom the CPP has become heavily reliant as a trading partner, strategic ally, and source of aid in recent years as the country shifted away from its previously heavy reliance on aid from the United States and Western European nations. Second, to draw attention away from the fact that the European Commission had announced only days before, on February 12, that it had decided to end part of the tariff preferences granted to Cambodia under the EU’s “Everything But Arms” trade scheme “due to the serious and systematic violations of … human rights principles” by the Cambodian government. Third, to repair relations with the United States. These relations had deteriorated in recent years after leading opposition political figure Kem Sokha was arrested and charged with treason in 2017 for allegedly plotting to overthrow the Cambodian government with the help of the United States. Given that 650 passengers on the MS Westerdam were American citizens, facilitating their repatriation was sure to create some goodwill with the United States.

The positive press Hun Sen and the CPP received however, was soon marred by the announcement by Malaysian officials that a former MS Westerdam passenger who had flown from Cambodia to Malaysia tested positive for the coronavirus. Cambodian public health officials quickly scrambled to test the remainder of the 1,455 passengers and 802 crew who had been on the ship, but many had already been in contact with local populations and hundreds had already left the country.

Cambodia challenged the Malaysian findings, with Hun Sen accusing Malaysian authorities of “damaging” Cambodia’s “reputation and dignity.” Ultimately Hun Sen was proven right, as it turned out the test had been a false positive.

Back to the Usual Repression

After this brief stint at the center of the growing COVID-19 news frenzy, Cambodia was quickly forgotten as the virus spread rapidly across the world, becoming a pandemic and triggering national lockdowns in many countries. Despite it seeming risky at first to accept the passengers, it ultimately turned out that the MS Westerdam had been coronavirus-free and Cambodia was spared a major outbreak. Such an outbreak could be calamitous in Cambodia, a nation with a weak public health sector (despite recent improvements) that is still recovering from the ravages of colonialism, U.S. war crimes, Khmer Rouge era atrocities, a protracted civil war, and, most recently, the increasingly dictatorial leadership of Hun Sen and the CPP.

Hun Sen and the CPP returned to business as usual. The trial of Kem Sokha — widely decried by experts as “tainted, … politically motivated and form[ing] part of a larger pattern of the misapplication of laws to target political opponents and critics of the Government” — continued in the capital of Phnom Penh. On February 26, the prosecution alleged that Kem Sokha had “used foreign assistance to form the Cambodia National Rescue Party,” despite offering no evidence whatsoever to back up this claim. Soon thereafter U.N. High Commissioner for Human Rights Michelle Bachelet described the CPP’s track record of human rights violations as “unrelenting.” The same day Bachelet criticized the CPP, Hun Sen publicly mocked rights advocates for criticizing the arrest of a Cambodian woman for dressing too “sexily” while selling products on Facebook, “challenging them to post similar ‘sexy’ photos and videos of their wives and daughters.”

Meanwhile, public fear of a potential COVID-19 outbreak grew among Cambodians, many of whom questioned whether they could trust government assertions that no positive tests for the coronavirus had occurred in-country.

Eventually, the virus arrived in the country. On March 6, a Japanese national living in Cambodia’s second largest city and tourism hub, Siem Reap, tested positive for the virus. A few days later, a Cambodian man who worked for the Japanese national also tested positive. In response, the CPP closed schools and businesses and cancelled new year celebrations scheduled for April 14-16. On March 10, the government announced that a British tourist who had travelled to Cambodia from Vietnam on a river cruise boat had also tested positive for the virus.

Almost immediately, the CPP began to crack down. On March 3, Hun Sen issued an ominous warning, stating that anyone who spread “fake news” regarding the coronavirus in Cambodia is a “terrorist.” This statement was a stern warning for journalists and Cambodian citizens, given the CPP’s longstanding campaign against free press. On March 9, two people were arrested for allegedly spreading fake news related to COVID-19 over social media. Two days later a third person was arrested, again on allegations of spreading fake news related to the virus. While one arrestee, who had claimed a family living near her in the Siem Reap area had contracted the virus in a Facebook post, was released, the other two, who both made references suggesting that the Cambodian government may not be disclosing all it knew of the virus’ spread in the country and is beholden to Vietnam (a common source of critique of the Hun Sen regime in Cambodia), were charged.

After the Ministry of Health reported that several Cham Muslim Cambodians had tested positive for the virus after visiting family in Malaysia, the small minority group became the subject of various derogatory social media posts, accusing them of bringing the virus into the country. Meanwhile, the virus continued to spread, and on March 24 it was reported that 31 members of a French tourist group, who had previously traveled across the country, tested positive for the virus.

The State of Emergency Law: Creating New Levers of Power

In late March, as infection rates crept upwards, Hun Sen stated that he was considering declaring a state of emergency. Instead of actually making such a declaration, on March 30, as Cambodia’s official tally of positive coronavirus cases reached 107, Hun Sen announced that a new law would be drafted outlining the government’s powers during a state of emergency. Soon — like other countries such as Bolivia, Brazil, China, Hungary, and India (to name only a few) — the Cambodian government took advantage of the pandemic to grant itself new powers. Cleverly, as will be made clear, Hun Sen and the CPP used the pandemic to push through emergency legislation without actually ever (to date) declaring a state of emergency, thereby creating a new lever of control that can be deployed in the future should the CPP feel the need arises.

Article 22 of the Cambodian constitution explicitly grants the government the power to declare a state of emergency, stating:

When the nation faces danger, the King shall make a public proclamation placing the country in a state of emergency, after unanimous agreement from the Prime Minister, the President of the National Assembly and the President of the Senate.

While Article 22 confers the power to declare a state of emergency, it remained unclear what the actual operative effect of such a declaration would be. At an April 2 press conference government spokesperson Phay Siphan cited the 110 confirmed cases of the virus in the country at the time as evidence of the “urgent” need to pass a law outlining the government’s powers during a state of emergency, stating, “If the government does not have a [state of emergency] law, how can we implement [Article 22].” He further suggested that the government would invoke the new law by declaring a state of emergency shortly after its passage, but said that the time frame in this regard would depend on the specifics of the situation in the country once the new law was passed.

Shortly after Hun Sen’s announcement of the pending law, a leaked draft of its text was circulated and met with condemnation by U.N. experts and various human rights and civil society groups.

Even as the bill moved forward amid this criticism, Hun Sen began to signal that perhaps the government would not actually declare a state of emergency and invoke the powers conferred by the law as soon as it was enacted. On April 7, Hun Sen publicly stated that it was “not the right time” to declare a state of emergency due to the pandemic. In sharp contrast to Phay Siphan’s statement only five days earlier, Hun Sen estimated that the “possibility of declaring a state of emergency to curb the COVID-19 pandemic is only 0.1 percent … but we need to have a legal mechanism in our hands in case any unexpected thing happens.”

Unsurprisingly, the draft bill sailed through Cambodia’s National Assembly and Senate, and was signed into law on April 29.

The law (unofficial English translation here) allows the government to direct the king to announce that the country is in a state of emergency whenever “the nation is jeopardized by war, invasion by foreign forces, public health emergencies from pandemics and national chaos that threatens security and public order as well as national disasters that threaten or seriously jeopardize the entire nation” for a renewable initial period of three months (Article 3). The law also confers a host of powers on the government during a declared emergency, conferring in Article 5 the powers to “impose:

  • bans or limits on the freedom to travel;
  • bans or limits on the freedom to hold meetings or gatherings;
  • bans or limits on daily work or professional activities;
  • bans or limits on people leaving their homes or using other accommodation;
  • quarantine or isolation measures in cases of threats to public health caused by pandemics;
  • mobilization or displacement measures for people in response to the State of Emergency;
  • measures to mobilize, seize, manage and use property and services of legal entities as necessary in response to the State of Emergency … ;
  • price-fixing measures for goods or services as necessary in response to the State of Emergency;
  • measures to close public or private places as necessary in response to the State of Emergency;
  • surveillance measures by any means for digital information in response to the State of Emergency;
  • bans or limits on distributing or broadcasting information that can cause public panic or turmoil, damage to national security or confusion about the situation under the State of Emergency; and
  • other appropriate and necessary measures in response to the State of Emergency.”

These measures “may be applied nationwide or to specific areas” and “if necessary, the … Government may put in place mechanisms or delegate relevant authorities to use the armed forces to guarantee the above-mentioned measures.” Additionally, “in cases of war or any other circumstances in which national security is seriously jeopardized, management of the nation by the Royal Government in an emergency may be implemented by a martial regime.”

These provisions, riddled with open-ended grants of power and key areas of vagueness and discretion, follow what I have argued elsewhere has become a favored tactic of the CPP. That is, subverting the rule of law through the passing of vague, open-ended laws conferring a great deal of discretion in implementation that are then selectively interpreted and applied to suit the needs of Hun Sen and other ruling elites. As Hun Sen and the CPP dominate the executive, legislative, and judicial branches in Cambodia, such laws can be powerful tools through which they can maintain the pretense of democratic law-based governance. Earlier examples of similar tactics include a controversial 2015 NGO registration law and a much-criticized 2017 Law on Political Parties (for further background, see here). Both laws combine vague provisions and registration requirements to confer on the CPP the ability to essentially unilaterally choose to disband NGOs and political parties, respectively.

The emergency law also borrows from the CPP’s playbook of combining vague laws with criminal penalties. The CPP is notorious for bringing spurious defamation, insult, and slander charges (Criminal Code Articles 305-311), as well as treason (Criminal Code Article 439) charges (again, themselves only vaguely defined in Cambodia’s Criminal Code), against political opponents and relying on a pliant judiciary to secure convictions. Articles 7-9 of the emergency powers law create harsh monetary and criminal penalties, including the potential of imprisonment terms ranging from one month to 10 years.

The CPP persisted in pushing through the emergency powers law even as the (already relatively low) number of confirmed coronavirus cases in the country fell. On April 27, just two days before the emergency law was signed into law, Cambodia’s Ministry of Health announced that it had been 15 days since the last positive coronavirus test in the country.

Indeed, presently the CPP is not in any particular need of invoking the emergency powers law to maintain its grip on power and control over dominant national narratives regarding public health and COVID-19. Well before announcing the new law, the CPP began using the coronavirus pandemic as an excuse to arrest political opponents and regular citizens who criticized the government. Arrests of political opponents, many from the former Cambodia National Rescue Party (which the government disbanded in 2017 utilizing provisions in the Criminal Code and Law on Political Parties) have escalated since the start of the pandemic.

As of April 16, well before the emergency powers law actually entered into force, Cambodian police had already arrested over 40 individuals for spreading coronavirus-related “fake news” (20 were reportedly charged with crimes, while another 22 were released by the police after being “educated”). Moreover, journalists perceived to be anti-CPP continue to have their broadcasting licenses revoked and to be arbitrarily arrested on incitement charges for reasons such as “exaggerated news reporting” or causing “social insecurity and chaos,” while former opposition politicians continue to be persecuted. Despite all of this, the CPP has maintained that, despite repeated criticism of its treatment of journalists, Cambodia does have a free press.

Meanwhile, WHO statistics show a grand total of three positive coronavirus tests recorded in Cambodia since April 12, even including an additional positive test in late May.

By passing the emergency powers law while keeping the coronavirus at bay, it appears that Hun Sen and the CPP were able to, in characteristically clever fashion, seize the opportunity presented by the mere threat of the virus gaining a foothold in the country as a reason to confer on the government (i.e. themselves) the ability to grant itself sweeping powers based on vague criteria. Powers that can also be renewed indefinitely based again, on vague criteria.

Conclusion: New Levers of Power under the Guise of Protecting Public Health

Hun Sen and the CPP have followed what has become one of their favored tactics by opportunistically leveraging the coronavirus pandemic to create new levers through which they may wield power. The regime first played the part of humanitarian hero by welcoming the passengers of the MS Westerdam, reaping diplomatic benefits from China and the United States, all while drawing international scrutiny away from the ongoing show trial of opposition leader Kem Sokha and increasing press restrictions. Next, despite the fact that the coronavirus never appears to have secured a firm foothold in the nation, the CPP opportunistically granted itself new powers to both act and to persecute dissidents and opponents through vague criminal provisions and restrictions on freedom of speech. Critically, this grant of power was not tethered to the current pandemic, but took the form of permanent legislation that can be invoked in any circumstance wherein the government deems that “national chaos … threatens security and public order.” Meanwhile, in late May, the pro-CPP Khmer Writer’s Association announced that it would be publishing a book lauding Hun Sen’s success in preventing the coronavirus from gaining a foothold in Cambodia, stating that they “compiled this book as a history for humanity.” The translated English title of the book is “Hun Sen: The Handsome Hero Who Went Against the Current to Fight COVID-19.”

Ultimately, in terms of raw power, the emergency powers law did little to add to the regime’s already unchecked hold on power in Cambodia. Indeed, thus far, the government has not even officially invoked the law by declaring a state of emergency. What passage of the law did do, however, was create one more legal mechanism through which the government can, when needed, confer extraordinary and largely arbitrary powers on itself, all while maintaining a façade of legality to help it performatively gesture toward the rule of law. If and when the coronavirus does spread deeply into Cambodia, or some new threat to the regime’s hold on power emerges, and the CPP decides to invoke this new emergency powers law, there is no telling what the ramifications will be for the country.

Image: An official waves the Cambodian national flag over a helicopter landing marker for Cambodia’s Prime Minister Hun Sen to visit passengers on board the Westerdam cruise ship, in Sihanoukville on February 14, 2020, where the liner on February 13 docked after being refused entry at other Asian ports due to fears of the novel coronavirus. (Photo by TANG CHHIN SOTHY/AFP via Getty Images)

 

About the Author(s)

Randle DeFalco

Fellow at Just Security. Follow him on Twitter (@randledefalco).