Asia Times, Opinion
Cambodia’s state of emergency law in context
In the US, a national emergency was declared on March 13 and the National Guard was deployed to aid California, Washington state and New York. Almost all US states have declared states of emergency to fight the coronavirus.
Countries across Europe have significantly curbed public life in order to halt the spread of Covid-19. In Spain, police have been using violence to enforce strict restrictions on movement, and hundreds have been arrested or fined for defying the measures.
As British lawyer Nicholas Clapham pointed out when explaining the UK’s emergency legislation, “The new legislation provides parliamentary authority for the government to act in ways that might otherwise be considered unlawful or draconian. Like much emergency legislation, it is an attempt to balance liberty and necessity.”
Cambodia is a newcomer in terms of utilizing emergency law. While such proclamations are permissible under a 1999 constitutional amendment, Article 22, a new law to govern such an implementation was deemed necessary. A draft law to that effect now has passed through the National Assembly and the Senate.
Cambodia’s draft Law on the Management of the Nation in State of Emergency (LMNSE) has 12 articles under five chapters.
Article 1 provides for the purpose of the law, which aims to govern the nation under a state of emergency in order to safeguard national security and public order, to protect citizens’ lives and public health, and to protect properties and environment.
According to Article 3, such a state of emergency shall be proclaimed by the king after requests from the prime minister, president of the National Assembly and president of the Senate. The duration shall not exceed three months. While it can be extended, it can also be terminated earlier.
Article 4 provides that conditions for proclamation of a state of emergency shall involve dangers caused by war or foreign invasion, public health emergencies caused by pandemics, tumultuous chaos in national security and public order, and severe disasters that threaten the nation as a whole.
Article 5 stipulates specifically restrictive measures that can be taken by the government. These include prohibition of or restrictions on traveling, freedom of assembly and work; quarantine; mobilization and evacuation; governing of properties and services; price management; closures of facilities; information monitoring; and other measures deemed necessary to respond to emergencies. These measures can be applied nationwide or over a specific geographical scope.
It is mandatory that the government shall regularly report to the National Assembly and the Senate about the imposed measures (Article 6).
Obstruction to the execution of emergency measures can result in fines from 2 million to 10 million riels (about US$500 to $2,500) and/or carry a jail term from one to 10 years according to the severity of the crimes (Article 7). Non-compliances carry lighter punishment (Article 8) while heavier punishment is reserved for crimes committed by legal persons (Article 9).
The conduct of state authorities is also governed by this law. Officials who conduct arbitrary abuse of power in contravention to the purpose of this law shall be punished under the laws of Cambodia (Article 10).
Measures derogating public liberty are permissible under international human-rights instruments. Article 4 (1) of the International Covenant on Civil and Political Rights (ICCPR) provides that: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant….”
However, the freedom of action of states is not without limitation. According to a document titled “The Administration of Justice During States of Emergency” published by the Office of the United Nations High Commissioner for Human Rights, states are limited by the principles of exceptional threat, official proclamation, non-derogability of certain rights, strict necessity, compatibility with other international legal obligations, non-discrimination, and international notification. Relevant measures must be tailored to the “exigencies of the situation” in terms of their territorial application, their material content and their duration.
All rights that can be derogated from are listed in the ICCPR. Non-derogable rights must be fully protected in such emergency situations. Non-derogable rights include the right to life; the right to freedom from torture, cruel, inhuman and degrading treatment or punishment; the right to freedom from slavery; the right not to be imprisoned on the ground of inability to fulfill a contractual obligation; the right not to be subjected to retroactive legislation (ex post facto laws); the right to recognition as a person before the law; the right to freedom of thought, conscience and religion; and the right not to be subjected to the death penalty.
Through the above-mentioned criteria, it is observed that Cambodia’s draft law has adhered to the principles set forth by international human-rights standards. As well, compared with the existing emergency actions by some countries, it is fair to say that Cambodia’s draft law is still nascent, rudimentary and soft.
The government has also explicitly declared that considering the current Covid-19 situation, there is a slim chance that Cambodia will invoke a state of emergency. So far, Cambodia has yet to implement any lockdown. As such, concerns over the possibility of serious derogations by Cambodia against international norms and practices seem far-fetched.