FOR IMMEDIATE RELEASE
AS-215-2006
September 14, 2006
A Statement by the Asian Human Rights Commission
CAMBODIA: Law abolishing parliamentary immunity is unconstitutional & unacceptable
On August 31 the National Assembly of Cambodia adopted a new law regarding its members. The Law on Members of Parliament is intended, among other things, to regulate parliamentary immunity, including the procedure for its lifting.
While a law to clarify arrangements for parliamentarians is welcome, this particular law–apart from being badly drafted–has the effect of abolishing immunity from prosecution, arrest or detention for opinions expressed in the exercise of parliamentary duties, contrary to article 80 of the Constitution of Cambodia. As a consequence, parliamentarians will be unable to represent their constituencies fully. They will be restrained from expressing opinions out of fear that they will be prosecuted.
Article 5 of the new law says that, “Members of the Parliament may not abuse this parliamentary immunity to harm the dignity of others, the good customs of the society, law and order, and national security.” The effect of this provision is to make parliamentarians no different from ordinary citizens. It is not hard to imagine that under almost any circumstances one could be accused of harming undefined “good customs” or “national security”. Under the law, an MP could well be accused of abusing parliamentary immunity and, when taking the floor in the National Assembly, be prevented from expressing opinions if the speaker or other parliamentarians deem anything said to contravene this section. The member could also be arrested if the police find the same contravention in opinions expressed outside the parliament. In other words, arrest now depends upon the subjective judgments of law enforcement officers, the speaker and one’s political opponents.
Currently, Heng Samrin, the honorary president of the ruling Cambodian People’s Party (CPP), is the speaker of the National Assembly. His party has 73 out of 123 seats in the parliament. Its members occupy almost all positions of responsibility in the police and bureaucracy from national to local level. Almost all prosecutors and judges are its members, and the entire judiciary is under executive control, that is, under control of the ruling party. Therefore, it would be a simple matter under current arrangements for any parliamentarian to be stripped of immunity, prosecuted and jailed. Even a parliamentarian from the CPP going against party line could very well become a target under the new law, to say nothing of those from opposing parties.
One telling aspect of the new law is that it is to be applied only to the lower house, the National Assembly, not the upper house, the Senate. Of the two, it is the assembly that has the real power. Only the lower chamber has any significant influence on government, and it is for this reason, presumably, that the law has been made with reference to it alone; there is no other reason that the two parts of the legislature should be treated separately for the purposes of immunity from prosecution.
Restraints on free expression in Cambodia are tightening daily. The CPP government already controls virtually all electronic media; there have been moves to curtail broadcasts of parliamentary debates on state television and radio. Since 2003, the government has banned public protest. Police squads have been sent to beat up and disperse workers demonstrating for better wages or conditions, and peasants staging protests against land-grabbing. In 2005 five human rights defenders and Sam Rainsy, leader of an opposition party, were arrested for allegedly defaming the prime minister; another MP, Cheam Channy, for forming an illegal army. Thanks to pressure from inside Cambodia and abroad, the two MPs were pardoned and allowed to reoccupy their seats. The human rights activists have been released from prison, but the defamation lawsuit against them is pending.
The law in Cambodia is being increasingly manipulated with a view to restricting free speech. The law on parliamentary immunity is the latest and most serious manipulation to date. Other laws under draft include one confining protests to designated areas, and requiring complicated and lengthy application and approval procedures. Another is intended to deny non-governmental groups and associations the right to involvement in political activities.
The Asian Human Rights Commission (AHRC) deplores the effective lifting of parliamentary immunity through the new Law on Members of Parliament. However, the Senate has not yet passed the law, nor has the king promulgated it, and the question of its constitutionality has already been raised with the Constitutional Council. The AHRC calls for widespread public debate at this juncture, leading to a thorough review of the law and its overturning on grounds of being contrary to both the letter and spirit of the country’s constitution. The Cambodian government and parliament should instead spend time and energy to enact long-promised legislation vital to the establishment and functioning of the rule of law, namely: the anti-corruption law, penal code, code of criminal procedure, civil code, code of civil procedure, law on court organisation, and law on judges. It could also spend more time to develop a meaningful law for members of parliament, which instead of stripping immunity would clearly define and regulate such matters as the procedure for ensuring discipline and use of language in parliament. It could establish a committee for the purpose of developing and monitoring use of the relevant regulations, and to examine requests for authorisation to prosecute, arrest or detain a member of parliament under strictly-defined circumstances.
Finally, the AHRC again urges donor governments, UN agencies, international aid agencies and the international human rights community to work with the government and national institutions to strengthen the rule of law in Cambodia, rather than legislation contrary to its principles. More than ever, international support and attention is needed to work against the emerging laws for dictatorship and towards laws for democracy in Cambodia.
