In re: CPP v Ranariddh
The Cambodian People's Party (CPP) has filed a
law suit against Prince Norodom Ranariddh, the
Funcinpec President, alleging that he made
defamatory statements against Prime Minister Hun
Sen of being involved in the killing of pro-Funcinpec
radio journalist Chuor Chetharith. Funcinpec has
since counter-sued. As a Khmer-American attorney
with bar membership in New York, I would like to
highlight the basic elements of defamation law
as practiced in the US, but with principles of
fairness and justice that apply to this case.
What is defamation? Defamation consists of
slander (speaking) and libel (written). To
prevail in a defamation suit, the plaintiff must
satisfy three elements: the defendant made (1) a
statement harmful to reputation, (2) that was
communicated to a third party, (3) which the
speaker/publisher knew or should have known was
false.
Here, the CPP is suing Prince Ranariddh for
slander, defamation by speaking. In essence, the
plaintiff CPP alleges that Prince Ranariddh made
a statement that caused injury to the reputation
of Mr Hun Sen [leader of the CPP, which gives it
standing, the right to sue], either because the
statement is so defamatory on its face (per se)
or it causes harm to Mr Hun Sen's reputation and
exposes him to public hatred, contempt,
ridicule, or degradation. If the slander is not
apparent on its face, the CPP has the burden of
pleading and proving these extrinsic facts.
Furthermore, the CPP is arguing that Prince
Ranariddh communicated this alleged defamatory
statement to a third person, that he didn't just
mutter it to himself or speak alone to Mr Hun
Sen about it.
And lastly, the CPP is charging that Prince
Ranariddh knew or should have known that his
alleged statement against Mr Hun Sen was false.
Defenses to Defamation
Should the court find that the CPP has
established these three necessary elements of
defamation, Prince Ranariddh is not left without
defenses. Truth is a complete defense to a
charge of defamation. Prince Ranariddh could
argue, yes, even if he did make the defamatory
statement causing injury to Mr Hun Sen's
reputation, nonetheless, what he said is true.
Moreover, freedom of speech is a defense, in
order to deter frivolous defamation lawsuits to
chill public discourse. As a public figure, Mr
Hun Sen has the added burden not only to show
objectively that a "reasonable person", ie, an
average Cambodian, knew or should have known
that his statement linking Mr Hun Sen to the
journalist's death was false, but also to prove
that Prince Ranariddh maliciously made the
statement with a reckless disregard for the
truth. Again, as a public official, Mr Hun Sen
must show defendant's actual malice with
convincing clarity.
As this is a matter of public concern, it is Mr
Hun Sen's burden to prove the falsity of Prince
Ranariddh's alleged statement.
Another defense gives Prince Ranariddh a
qualified privilege to the defamatory statement
if it was made at a proper occasion, from a
proper motive, and based on reasonable and
probable cause.
Relatedly, Prince Ranariddh can argue that his
right to petition for grievance privileges him
against defamation charges. This defense takes
the following line of argument: the well-known
pro-Funcinpec stance of journalist Chuor
Chetharith has given Prince Ranariddh, the
President of Funcinpec, the right to petition Mr
Hun Sen for redress of grievances. In doing so,
the law absolutely protects him from defamation.
Again, my comments are based on English legal
traditions and precedents, but the
aforementioned legal principles nonetheless can
work to supplement the less-developed, still
evolving Franco-Khmer laws on this issue.
(It should be noted that the defense of
political immunity is outside of defamation. If
Prince Ranariddh has political immunity, the
charge of defamation should not have surfaced in
the first instance.)
Theary Seng in Washington, DC
Phnom
Penh Post, Issue 12/25, December 5 - 18, 2003
