In the wake of Cambodia’s contested election results, public gatherings and demonstrations have become increasingly common. The most recent discourse in this area has identified a lack of clarity regarding what constitutes a demonstration according to the law, when permission is needed from local authorities and when simple notification will suffice. This briefing note takes a look at what the Law on Peaceful Demonstration 2009 provides, and whether it stands consistently with international norms.
1. What constitutes a demonstration?
The Law on Peaceful Demonstration (“the Law”), enacted in December 2009, sets out the procedure for obtaining permission for all “peaceful gatherings or marches for demonstration in the Kingdom of Cambodia”, and the measures demonstration organisers must take to keep the demonstration within the bounds of the law. However the scope of the implementation of the law is limited to what article 4 defines as a peaceful gathering:
The Peaceful Assembly refers to a gathering or a march conducted by a group of people to publicly demand, protest or express their sentiments, opinions or will by using various forms or means peacefully.
This means that the law and therefore the procedure of notifying authorities required by Articles 5 – 14, only applies to marches and gatherings that fall within this definition.
This definition of a peaceful demonstration extends the scope of the law to a very broad range of public events. Namely, the scope is extended to any events where (i) a public group; (ii) demand, protest or express sentiments, opinions or will; (iii) by using various forms or means peacefully.
Elements (ii) and (iii) are purposefully all inclusive and broaden the interpretation of a peaceful demonstration to anything that could be reasonably conceived as a protest with a purpose. However, the first element where the legal test is whether a group carries out these actions publicly is less clear. Article 5 suggests what may constitute a public protest when it states that “Any groups of individuals who wishes [sic] to organise a peaceful assembly at any public venue shall notify the competent […] authorities”. The Law and its Implementation Guide do not attempt a legal definition of a public place and Cambodian law is largely silent as to this point. Article 15 states that “public roads” require notification, suggesting that any marches on roads not privately owned will satisfy the criteria. Somewhat contrary to the purpose of the public element of the definition of an assembly, stands Article 14 which provides that notice is required for protests, “at the places of private property or in, case of collective property, there is approval from the landlord or the board in charge of the management over the collective property”. So whilst a peaceful assembly is defined as something that is conducted in public, the Law also requires notification for private gatherings, blurring the lines between assemblies within the ambit of the Law, and assemblies outside of the ambit of the Law but that are included in the notification requirements anyway.
2. Which demonstrations require notification and which require permission?
Any protests falling within the definition of Article 4 are subject to the notification requirements set out in Articles 5 – 10, which stipulate that details of the assembly and the organizers are to be given to the relevant authorities 5 days previous to the assembly. If after 3 days the notification for the assembly has been given and the organisers have received an acknowledgment with no further response, then the authorities have tacitly given their approval for the demonstration to go ahead (Article 10).
If, however, the authorities have “clear information indicating that the demonstration may cause danger, or would seriously jeopardise security, safety and public order” (Article 11), the organisers will be contacted and asked to participate in negotiations over the organisation of the assembly. In this case, what was once notification in order to get the authorities’ tacit agreement then turns into an active negotiation process in order to get the permission of local authorities to hold the protest.
It is necessary to look at the circumstances in which a protest may be deemed to jeopardise security, safety and public order. The terminology used in the Law is open to broad interpretation and a wide range of potential threats could conceivably be cited by authorities in order to gain some control over the protest. The Implementation Guide to the Law on Peaceful Demonstrations produced by the Ministry of Interior provides some clarification. Firstly, the guide clarifies that the authorities should consider the credibility of the information about the threat to security, whether it can be substantiated and whether the information, if credible, genuinely does indicate a real risk of public safety being compromised. Secondly the guide sets out instances which should not necessarily be considered as constituting a threat to security, including “demonstration[s] that protest or support a particular Government policy” (Section III, Point 2-4-4), and “the risk that the demonstration will cause a traffic jam”(Section III, Point 2-4-5).
For further guidance it is necessary to consider Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is a State Party, and to examine General Comment 34 regarding Article 19, from which the thrust of the wording in Article 11 of the Law seems to stem. Article 19 of the ICCPR places certain caveats on the right to general freedom of expression with sub-article 3 (b), which restricts the freedom in cases concerning “the protection of national security or of public order (ordre public), or of public health or morals”, a similar provision to Article 11 of the Law. Point 22 of General Comment 34, states that all restrictive measures must “conform to the strict tests of necessity and proportionality”, suggesting that threats are to be judged on a case by case basis but in the next point (23) warns against invoking the restrictions, “as a justification for the muzzling of any advocacy of multi-party democracy, democratic tenets and human rights”.
Therefore local authorities must judge threats on a case by case basis, ensuring that information pertaining to any perceived threat is credible and meets strict and objective tests of necessity and proportionality, before they impose a need for permission to be sought.
If authorities and organisers fail to agree on the organisational details of the protest, the matter will be referred to the Ministry of Interior for a final decision (Article 12), no later than 24 hours before the protest is to be conducted (Article 13).
3. What can authorities do to control protests?
The main emphasis of the controls given by the Law is on cooperation between the organizers and authorities so that the demonstration can take place. Point 2-4-6 of Section III of the Implementation Guide stresses the importance of finding a “common solution”. When an appropriate solution is found which allows the demonstration to go ahead on the terms agreed, or when the Ministry of Interior rules on a legal basis on which the protest can proceed, the authorities have the following duties to uphold during the conduct of the protest:
- If the demonstration is a march taking place on public roads, local authorities must consult police to designate an appropriate route, which will cause as little disruption as possible to the public (Article 15 of the Law).
- Authorities must protect demonstrators and use their best efforts to ensure the demonstrators’ rights to peaceful protest is protected (Articles 17-18).
- Authorities must not interfere with the protest (Articles 17-18).
- Authorities must wear proper uniforms and display information about their authority as appropriate (Article 19).
- Authorities must show absolute patience with demonstrations, and must not disperse demonstrations that have been approved either explicitly or implicitly. However, if a demonstration turns violent, the authorities shall take appropriate measures to prevent the violence and stop the demonstration (Article 20 and Implementation Guide Point 3-4 of Section III).
It is apparent that the way in which the law is drafted suggests an intention to place greater importance on the protection of the integrity of the protest than on powers of control of the authorities. It is also necessary to consider what crowd control options are legally justifiable in the event that the authorities’ fears are confirmed and violence breaks out. Guidance on this point comes not from the Law, but from the Implementation Guide in Point 3-6-4, which states that if violence breaks out, security personnel should deal with troublemakers in isolation. If the violence is contained successfully then the demonstration can continue but if, “no other options exist” the demonstration should be dispersed. Provocation by protesters to supervising police forces should not be seen as a licence for authorities to take action on the demonstrators, and the Guide explicitly states that “Territorial authorities and their assigned representatives should refrain from dispersing demonstrations even if the demonstrators use derogatory words”. General Comment no. 34 also warns against the curbing of protests through, “such forms of attack as arbitrary arrest, torture, threats to life and killing”.
So whilst a certain degree of control is necessary to maintain public order, the emphasis in the Law is clearly placed on how the authorities can facilitate the demonstration and play a supervisory role, rather than controlling or limiting the protest through force or other means.
4. Are Cambodia’s laws on peaceful demonstration compatible with the Constitution of the Kingdom of Cambodia and international law?
Articles 37 and 41 of the Constitution of the Kingdom of Cambodia (“the Constitution”) recognise the right of Cambodian citizens to hold strikes and peaceful demonstrations and the right to freedom of assembly. Whilst Article 37 states that strikes and demonstrations are to be implemented within the parameters of the law, Article 41 goes much further when it states that the right to freedom of assembly must not “infringe upon the rights of others, to effect the good traditions of the society, to violate public law and order and national security”. In particular the reference to the “good traditions of society” is broad and open to a wide interpretation, particularly given the lack of available domestic jurisprudence. When read in conjunction with the Law, a potential conflict is presented. While the Article 41 of the Constitution sets out clear and very limited criteria of infringements that assemblies must not commit, the Law itself widens this scope in its reference in Article 2 to the “honor of others”.
Article 2 of the Law states that demonstrations “shall not be used abusively affecting the rights, freedoms, and honor of others, good customs of the national society, public order and national security.” This provision in fact goes beyond the narrower limitations set out in the constitution and is seemingly incompatible with the limitations set out in Article 21 of the ICCPR which states that the only legitimate restrictions that may be imposed upon the freedom of assembly are those “which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”
5. What do other States do?
Post 9-11, there has been a global trend towards increasing powers of authorities to place restrictions on peaceful demonstrations and many states who are party to both the ICCPR and ECHR have seen an increasing number of legal challenges both to the legality of these restrictions and the way in which they are implemented. Public Order legislation is often used to restrict the fundamental freedom to peaceful assembly and the European Court of Human Rights has seen a number of cases brought in recent years by individuals who claim that their right to freedom of assembly and association has been violated (cf Article 11 of the European Convention on Human Rights (ECHR)).
However, to take the United Kingdom as a point of comparison, while the Public Order Act affords certain powers to the police to place restrictions on peaceful processions and assemblies, these powers are extremely limited and the circumstances in which they can be applied are narrow. While anybody who is organising a procession is required by law to give notice to the local police force, the police can only impose restrictions on the procession (such as specifying the route that the procession should take) either if there is a reasonable belief that if the procession were to go ahead without the imposition of conditions there would be serious public disorder, serious damage to property or serious disruption to the life of the community, or if the purpose of the procession is to cause intimidation to others. Recent examples of the use of these powers include restrictions placed on the far right, anti-Islamic group, the English Defence League (EDL), who unsuccessfully took the Metropolitan Police to the High Court to challenge restrictions placed on one of their demonstrations in Tower Hamlets, East London. Crucially, though, the restrictions imposed by the police were not an attempt to prevent the demonstration from taking place, but only to restrict its route and were therefore deemed to be proportionate and necessary in the circumstances.
In terms of preventing public processions from taking place, the law is similarly restrictive and the police are only able to apply for temporary banning orders if the threat of serious public disorder cannot be addressed by the imposition of restrictions as detailed above. Any police force proposing to prohibit a public procession must obtain the prior consent of the Secretary of State. The same legal provisions apply in the UK to anybody proposing an assembly of 20 or more people.
Despite the apparently narrow scope of restrictive powers available to the police in the UK, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association has nevertheless expressed concern regarding the extent of police interference into the right to freedom of assembly and association. In his May 2013 Report to the UN Human Rights Council, Maina Kiai identified undercover policing, the compilation of intelligence databases, excessive use of stop and search powers, use of excessive force and ‘kettling’ as some of the potential threats to freedom of association in the UK. Although ‘kettling’ – a police containment tactic – was deemed to be lawful by the European Court of Human Rights in the case of Austin and others vs the United Kingdom, the special rapporteur stressed that this method has been abused and used for intelligence gathering purposes rather than as a legitimate and proportionate crowd control method and he stressed that the ECHR ruling (in which three of the 17 Judges dissented) was by no means representative of a blanket endorsement of the practice.
Police practices and the concerns of the UN Special Rapporteur serve to highlight the importance of interpreting domestic laws and international conventions such as the ECHR in line with Article 21 of the ICCPR. It is of significance therefore that the ASEAN Human Rights Declaration, to which Cambodia is a party, failed to incorporate some of the most fundamental freedoms, including the right to freedom of association; without the equivalent mechanism of the ECHR that imposes obligations on the UK in terms of the freedom of assembly and association, it is of vital importance that domestic laws in Cambodia are interpreted and implemented in line with international obligations under the the ICCPR. In other jurisprudence before the ECHR, the court has made it clear that while states may impose limited, necessary and proportionate restrictions on freedom of assembly, it is essential that these restrictions are exercised only when absolutely necessary and in a manner that does not interfere with or undermine the rights and freedoms of citizens.
A crucial difference between the powers that the authorities in the UK have to restrict peaceful demonstrations and the powers of the Cambodian authorities is the fact that the relevant authorities in the UK are the local police force and that organisers of protests are required simply to notify the police of planned demonstrations, not to request their permission. Police may only impose prohibitions – and only temporary ones – with the consent of the Secretary of State which imposes a check and balances procedure to the process. It is only in very limited circumstances that police can make a request for a banning order and protesters have the right to challenge any such order through the courts. The Cambodian Law however provides a wider scope for authorities to restrict or prevent a demonstration, most notably under Article 2 of the Law and the process requiring notification with the authorities’ tacit consent, gives more freedom to impose restrictions on demonstrations. This calls into question the Law’s compatibility with Cambodian constitutional principles and with international standards.
The ICCPR does enable states to impose limited controls and restrictions on assemblies and demonstrations. However, the freedom to protest peacefully is the cornerstone of any democratic society and any restrictions imposed must be proportionate and necessary and must not interfere with citizens’ absolute and inalienable right to assemble and associate freely. Finding the right balance is not always an easy task and deciding the correct approach for authorities to take, such as with regard to the dissenting Austin judgement, will continue to be fraught with controversy and disagreement. The overriding objective, however, must not be lost as states try to strike this balance within the parameters of the law: the preservation of the integrity of each individual’s right to demonstrate lawfully and peacefully.