Norak Satya and Kwan
Norak Satya and Kwan.

Artistic Freedom in Cambodia: When Legal Safeguards Are Not Enough

In a country with a range of national and international laws to protect artistic rights, Reaksmey Yean questions the reality of freedom of expression for artists in Cambodia.

In September 2020, Cambodian authorities arrested two young rappers, Kea Sokun and Long Putheara, over a lyric in their music, Khmer Land, released in April 2020. Viewed over 2.2 million times in the space of five months after its premiere, Khmer Land urges Cambodian youths to stand up to oppression and corruption, give up intoxication, and pay attention to territorial issues. In the song, Sokun rapped:

I was conceived on a destitute land; I bear a neutral mind. 

Through the song, I commit to fighting against treasonists, 

taking over our forefather’s inheritance, 

and rounding up the oppressors to save the nation. 

I am a Siem Reap-born, a land where temples stand;

I am a bloodline of the Varman, who is brave and not easily threatened,

 I raise the nation’s flag penetrating the sky.

Sokun’s lyrics are full of nationalist sentiment, especially when he reminds his listeners 

if we lost our land, there is no place to stand …

some nations are encroaching on our land while we are not joining hands.

Vietnam is never mentioned, but the territorial issue referred to in the lyrics is understood to be a reference to a sensitive border issue with Vietnam and the long-held accusation that the ruling government shrinks its responsibility towards Cambodian’s territorial integrity. 

In response to the lawsuit brought by the Ministry of Culture and Fine Art, the Siem Reap Court of First Instance, in December of the same year, found the pair guilty under article 495 of the Cambodian Criminal Code, “incitement to commit a felony.” In Cambodia, accusations of incitement and defamation are often heard in the court of law against politicians, activists, and private individuals perceived to be critical of the government.¹

On the other hand, the sentence of Sokun and Putheara may be viewed as influenced by the Ministry of Culture and Fine Art of its 2016 Code of Conduct for the Artists. Section 2, Article 4, Paragraph 9 of the Code states that all artists “must avoid the creativity and performance that bear the characteristics of inflammatory, division, and religious and racial discrimination.” The Code also prescribes penalties in the event of disobedience or violation; these come in two streams, relative to the degree of wrong: “education, or oral reprimand and/or a made-public written reprimand;” and/or “a suspension of [the artist’s] activities related to art and culture for a specified period of time according to the wrong committed.”

While these permitted sanctions should have been invoked, the government chose to apply the provisions found in the Criminal Code instead. As noted by journalist  Sebastian Strangio, “[t]he convictions of the two rappers are just the lastest in a wave of arrest of activists and opponents that has intensified since the July arrest of the prominent unionist Rong Chhun, who has also accused the government of ceding land to Vietnam.”  

In any case, however, to be convicted under Article 495 of the Criminal Code, there must be elements of “direct incitement to commit a felony or to disturb social security” employing speech, writing, picture, or audio-visual of any kind circulated to the public. In the case of the two rappers, it seems the second element is met, circulated music to the public, but it is unclear how their music or lyrics are a direct incitement to commit a felony or how they disturbed Cambodian security. During the trial, Putheara chose to express remorse for his actions, resulting in a lighter sentence: five months in prison. In contrast, Sokun received a harsher punishment, 1.5 years in prison, as he stood his ground and expressed no remorse.²

Five years before this incident, in  September 2015, a coalition of 57 states led by Latvia, Uruguay, and the United States issued a joint statement, delivered by Ambassador Janis Karlins, Permanent Representative of Latvia to the United Nations in Geneva, before the Human Rights Council session 30, “Reaffirming the Right to Freedom of Expression, including Creative and Artistic Expression.” The statement’s introduction reads:

[w]e wholeheartedly reaffirm the right to freedom of expression. This right is enshrined in Article 19 of the ICCPR (International Covenant on Civil and Political Rights) and guaranteed to all without discrimination. Its scope includes creative and artistic expression — as the ICCPR specifically addresses expression ‘in the form of art.’ States Parties to the ICESCR (International Covenant on Economic, Social, and Cultural Rights) recognize the right, under Article 15, to participate in cultural life and benefit from the protection of interests resulting from one’s artistic production. Under Article 27 of the UDHR (Universal Declaration of Human Rights), everyone has the right “to enjoy the arts”.

Unlike other Southeast Asian countries, the Cambodian Constitution of 1993 is arguably one of the most progressive and liberal with regard to political, religious, and human rights; of note here is that it is a by-product of the post-cold war tensions and political concession in which democracy triumphed. Enshrined in the 1993 Constitution is Article 13, which stipulates that “[t]he Kingdom of Cambodia recognizes and respects human rights as enshrined in the United Nations Charter, the Universal Declaration of Human Rights and all treaties and conventions related to human rights, women’s rights, and children’s rights.” It means Cambodia is a signatory of, as mentioned above, ICCPR and ICESCR. This is not to mention that Cambodia is a state party to, under the purview of UNESCO, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Moreover, as reaffirmed by the country’s Constitutional Council, the authority with the prerogative to interpret and guarantee the respect of the constitution, in its 2007 ruling, international law ratified by Cambodia shall become domestic law. 

These legal frameworks, national and international legal instruments, position Cambodia’s human rights regime as one of the most advanced and up to international standards.  It would appear that in Cambodia freedom of expression does include creative and artistic expression as suggested by its own legal regime. Therefore, Cambodian artists should enjoy their constitutional rights.

National and International framework supporting freedom of expression in the arts.

And yet, it is or unclear why Cambodia, among other ASEAN states, has not expressed its interest in or to join the 2015 reaffirmation. Perhaps, looking at recent altercations between artists and the state offers some clues. As much as the Cambodian legal regime may be exemplary, the practice and reality on the ground may not correspond or harmonize with it. Since 1993, Sokun and Putheara are probably the only artists who have been sentenced to prison, but they are not the only artists whose freedom of expression and artistic productions have been challenged, condemned, or censored, or considered to have crossed the “red line,” by the Ministry of Culture and Fine Arts or the authority. 

In May 2016, singer/actress Denny Kwan, known for wearing “sexy” and provocative clothing, was summoned to the Ministry of Culture and Fine Art after a series of photos depicting the actress in translucent fabric, almost topless, circulated in the local press. Kwan, 23 at the time, was summoned for what is called the “re-education” session, in which she reprimanded for her choices of clothing, instructed on what a woman’s behavior should be and made to promise not to repeat the “mistake.” Kwan’s clothing was considered to produce a negative impact on national traditions, as well as violating the Code of Conduct for the Artists, which therein states: 

All artists “must uphold moral, virtue, and integrity principles in either of their writing, speech, gesture, action, behavior, or dressing by strictly observing the dignity in order to be part of elevating social morality and national prestige.

Cambodian actress Denny Kwan.

First released in 2010 by the Ministry of Culture and Fine Arts, the 18-page Code is consistent with the National Policy for Culture of 2014, which aims:

to promote, protect, and defend in perpetuity the national culture, customs, traditions, and identity in order to elevate national prestige and sustainable development; and to prevent the negative impacts on national arts and traditions.

Not long after Kwan’s re-education, Minister of Culture Phoeurng Sackona convened a ministerial deliberation to amend the existing Code of Conduct. In defending the move, Thai Norak Satya, then-spokesperson of the ministry, said, “We want to amend the existing code for professional artists so that their work and songs aren’t criticized too much by the public.” Indeed there had been public outcries, mostly expressed via social media, on the choices of clothing viewed to be provocative or suggestive by female artists and celebrities; and on several songs viewed to contain no educational value, released by various artists in 2016. Those songs include Eating Banana and Drink Water by Niroth, Carry on Eating If You Can! by Keo Veasna, and No Way You Can Eat Me by Chan Malis. In modern Khmer expressions, like the Thai language, the word “eat” is also conterminous with sexual intercourse; therefore, these songs, in one way or another, are related to sex or euphemism for sexual expressions. In this context, the ministry chose to give in to populist sentiment, taking  the reactionary step to ammed the new Code of Conduct to “build consensus amongst the artists and writers about what is appropriate to wear or include in their works.”  The change gave the state greater say over artistic production and behaviours, while also buttressing the government’s populist credentials. 

About eight months after the updated Code was released, in April 2017, Kwan’s clothing choice resurfaced as a subject of public scrutiny. As a result, Kwan became the first entertainer-victim of the Code as she was banned (as a punishment) from appearing in any new movies for a year. However, it is unclear whether the ban resulted from the outfit she wore in her private life or was it because of the clothing she wore in her performance. Nevertheless, the suspension is understood to be a response by the ministry of culture to Kwan’s refusal to dress more conservatively as per the ministry’s recommendation during Kwan’s  re-education session in 2016. 

While Kwan did not, in fact, appear in the nude in her performances, her attire, with its almost appear-to-be cloth-less or topless outfit is often viewed as nudity, which in and of itself is considered taboo, disturbing, or destructive in Cambodia today. Yet, nudity is ever-present within the art and culture of Cambodia. Examples include the topless Apsaras that adorned the wall of the 12th-century temple of Angkor and the nudity in master artist Nhek Dim’s works from the late sixties and early seventies. This erotic style of the master lingers in present-day Cambodia, for instance in the paintings of topless women carrying the Khmer ‘Kaorm’ water container can be found in the shops around the area of the Royal University of Fine Arts (RUFA). 

Despite this historical and cultural precedence/evidence, nudity is widely considered a sinful aspect that must be eliminated. These shifting attitudes towards, and regulation of traditionally accepted depictions of nudity have become increasingly vexed. In 2008, the government, including the Ministry of Women Affairs, and Ministry of Information, voiced their concerns over a digitalized work of a topless full-breasted Apsara with an elaborated head-dress and jewelry sitting against the backdrop of an ancient Khmer temple by Reahu Ausra, a group of Khmerican digital artists. The ministries suggested that the works counter  Khmer culture and devalue Khmer women and traditions. The artists of Reahu Ausra argued that the face of their depicted Apsara is of a different ethnicity, not merely a representation of the Khmer women.

The Cambodian constitution echoes the question of women’s dignity and value. Article 46 states, “human trafficking, exploitation of prostitution and obscenities which affect the dignity of the woman shall be prohibited.” However, is Kwan’s clothing choice considered a form of prostitution or obscenities? And how does that devalue or degrade Khmer women or Khmer tradition? We may not have the official answer to these questions, but article 31 of the constitution stipulates that Cambodia recognizes and owes obligations to the International Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). 

There is also a need to balance this against giving all women, agency over their own body, and choices. In a TV interview with Freshnews in 2018, a few months before her ban was lifted, Kwan maintained that she, laughing off while uttering the word, “respects” the banning decision by the ministry. She said, “I am not the only sexy artist in Cambodia, but we live in Cambodia, which has a culture and tradition. So, we should follow it and not dress unreasonably sexy.” However, when asked whether she thinks it is wrong to dress sexy, she defended herself, saying, “in my opinion, but only my opinion, it is not wrong, as one should progress through time [referring to modernity]. Sexy is not an issue, at least for me, but maybe for the old timers…but everyone views the issue differently.” While Kwan’s reaction to the ministry’s decision seems to be receptive and passive, which is expected given the country’s sociopolitical climate, the artist does not seem to play down her choice of clothing in the public sphere, especially in her social media space where she has accumulated more than one million followers. 

It is essential to point out also that the 2016 Code of Conduct does not specify gender in its use of the word “artist.” The Code defines an artist as “those who have knowledge on and exercised it in activities related to music, song, dance, classical dance, speech, and artistic and cultural products.” However, the enforcement of Section 2, Article 4, Paragraph 3 (all artists must uphold moral principles, inter alia, appropriate clothing, and behavior) has, so far, been less even-handed. Women artists and their choice of clothing are mostly, if not always, the subject of discourse and scrutiny by the public and government. The latter often invokes the word “dignity,” which is in line with the constitution, as the denominator for a woman’s good behavior. The Code seems, as argued by Cambodian human rights advocates, to have been used to police the womens’ bodies and promote gender discrimination. Is not the choice of clothing a form of freedom of expression and protected by the Cambodian Human Rights regime?​​ Doe the Ministry of Culture and Fine Art’s actions violate the constitution and Article 3 and Article 5 Section A of CEDAW

Kwan and Sokun’s cases should also be viewed as an issue of the Right to Freedom of Expression, including Creative and Artistic Expression raised by the coalition of 57 states in September 2015 mentioned earlier. In principle, the artists are protected by Article 41 of the constitution: “Khmer citizens shall have the freedom to express their personal opinions, the freedom of the press, publication, and assembly. No one can take abusively advantage of these rights to impinge on the dignity of others, to affect the good mores and custom of society, public order, and national security.” The second part of the article may be the basis for the action of the Ministry of Culture of Fine Art. However, for the past 30 years, the Constitutional Council has never interpreted or spelled out the restrictions imposed by the clause itself. 

As much as the Code of Conduct for the artist and actions from the Ministry of Culture and Fine Art may be obstacles, they certainly do not stop artists from exercising their fundamental rights as stipulated and protected by the constitution and international legal instruments Cambodia ratified. Sokun is an example of that. After his freedom had been restored earlier this year, the rapper recently released new music entitled 365 Days. The song describes the struggles, tensions, and disappointments the artist experienced during the period of his incarceration, which the title referenced. But it is also an announcement of the artist’s re-entry into the music scene while reaffirming his commitment to neutrality and continuing to voice his opinions on social issues and injustices.  Halfway through the music, the listeners hear the rapper decry “some slandered that I am useless, and my words expressed are baseless, though my efforts are not for personal benefits, I sacrificed my freedom for the common good.”  

¹The provisions of Criminal Codes that are often invoked for the cases related to incitement and defamation are Book 4, Chapter 3, Section 3, which deals with issues related to incitement in the context of social and public security and offenses against the nation; and Book 2, Chapter 6, Section 2 that deals with issues of defamation and public insult in the context of offenses against the person.

²While the legal proceeding may require the accused to plead guilty or accept the plea, a number of reports on the case used the word “remorse” instead. It is unclear whether the word remorse equates to the legal admission of guilt. However, this could also mean, in a general sense, that the government demands the accused to express “remorse” as a form of apology directed toward the general public, not to the court per se. 

This content is produced as part of a project to research and document arts and culture censorship in Southeast Asia, organised by ArtsEquator. For the Khmer version of this article, translated by Tola Say, please click here.

About the author(s)

Reaksmey Yean is an art advocate, an early-career art curator, writer, and researcher. A program director of Silapak Trotchaek Pneik (STP Cambodia), Yean is an Alphawood scholar (SOAS, the University of London for Postgraduate Diploma in Asian Art – in Indian, Chinese, and Southeast Asian Art) and an inaugural SEAsia Award Scholar (2017) of LASALLE College of the Arts, Singapore; an Asian Cultural Council fellow (2018), and a beneficiary of Dr. Karen Mcleod Adair grant for MA in Asian Art Histories at LASALLE College of the Arts. He is currently an LL.M. candidate at Royal University of Law and Economics/University of Paris 8 in Public International Law. While his current research is on art restitution in the context of international law, his general academic interest is in Khmerology, Buddhist Arts and Art History.

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