the Press Law allow a court to rule on what “may” affect public order, political stability or good custom of society.9 The court system is given too much power of interpretation on whether an offense has been committed. This would be an issue in a society with a completely independent judiciary, something that Cambodia is lacking.10 Defamation under international law The criminalization of defamation, in any legal system, has been criticized by international bodies for violating the right to freedom of expression, including the United Nations (the “UN”) Human Rights Committee (the “HRC”), the body that oversees the implementation of the International Covenant on Civil and Political Rights (the “ICCPR”). Freedom of expression is provided for in both international law and domestic Cambodian law, and the provisions for this freedom must be considered when reviewing the legality and constitutionality of defamation law in Article 305 of the Criminal Code. The Constitution independently upholds the right of all Khmer citizens to freedom of expression and a free press, under Articles 31, 35 and 41.11 In addition, the Constitution enshrines the rights of Khmer citizens to “actively participate in political life.”12 Article 31 of the Constitution provides that Cambodia shall recognize and respect the Universal Declaration of Human Rights (the “UDHR”) and the ICCPR, incorporating these and other covenants and conventions related to human rights, into domestic law.13 Under international law, Articles 19 of both the UDHR and the ICCPR uphold the right to freedom of expression. These international treaties and the HRC recognize the necessity of freedom of opinion and freedom of expression as the foundation stones for a developing and democratic society. 14 However, the right to freedom of expression is not absolute. Certain restrictions of the right are permitted if necessary, under the specific circumstances. However, restrictions, including defamation legislation, are only legitimate in exceptional situations. Article 19 of the ICCPR states that freedom of expression may be subject to restrictions to protect “national security or of public order, or of health or morals.” If a State does choose to limit this freedom through a defamation law, it is up to that State to demonstrate the limitations (1) are provided for by law; (2) are necessary; (3) function proportionately; and (4) do not, in practice, serve to stifle freedom of expression. According to the HRC, all state parties to the ICCPR should consider the decriminalization of defamation.15 However, while defamation should not be a criminal offense, if legislation for the criminalization and penalty of defamation exists, it should follow the guidelines of Article 19 of the ICCPR16: governments must ensure that the law remains necessary and proportionate to the aim of protecting the reputation of citizens, while the courts must fairly and impartially interpret and apply the law. Any government seeking to criminalize defamation must prove that reputation cannot be 9 Ibid, Article 12 and 13. CCHR: ‘Judicial Reform’ (Briefing Note) (February 2013) http://bit.ly/1kmEsq5 11 Article 41 of the Constitution. 12 Ibid, Article 35. 13 As confirmed by the decision of the Constitutional Council dated 10 July 2007, Constitutional Council of the Kingdom of Cambodia, Decision No. 092/003/2007 (10 July 2007) <http://bit.ly/1rmdbcj>. 14 UN Human Rights Committee General Comment No. 34 (2011), paragraph 2. 15 UN Human Rights Committee Concluding Observations on Italy, CCPR/C/ITA/CO/5; UN Human Rights Committee Concluding Observations on the Former Yugoslav Republic of Macedonia, CCPR/C/MKD/CO/2. 16 UN Human Rights Committee General Comment No.34 (2011). 10 3