CAMBODIA: The silencing of the Cambodian parliamentary opposition 

CAMBODIA: withdrawal of parliamentary immunity; violation of constitution provision; criminal defamation

Dear friends,

The Asian Human Rights Commission (AHRC) has received information regarding the withdrawal of parliamentary immunity to Cambodia’s opposition leader Sam Rainsy and legislators Cheam Channy and Chea Poch. The move is an attempt by Cambodia’s ruling parties to silence the parliamentary opposition in the country and to even possibly eliminate them entirely from the political scene.

Under Cambodia’s Constitution, members of the National Assembly are immune from legal prosecution or arrest for opinions expressed while fulfilling their duties. However, a two-thirds majority vote by Cambodia’s parliamentary members on 3 February 2005, has revoked this safeguard in this case. Subsequently, the opposition leader and his party members may be subjected to legal proceedings relating to statements they made about the corrupt practices of some leading political figures.

The AHRC is saddened and shocked by these latest developments in Cambodia. The silencing of opposition parties, whose existence helps to ensure transparency and accountability, will only serve to plunge Cambodia back into its past economic dark stage, a period which the country has been struggling to escape since 1993. It is the existence of a vibrant opposition that will convince the world that there is, indeed, an attempt to modernise Cambodia and to order the economy on a rational basis. The present move will raise doubts as to whether Cambodia is capable of implementing serious economic, social and political reforms that are required for its development and the welfare of its people.

In light of this, the AHRC urges you to intervene in this matter. We ask that you write to the Cambodian government requesting it to: restore parliamentary immunity to the three opposition party members; release Cheam Channy (who is currently being illegally detained in a military prison); allow Sam Rainsy and Chea Poch (who have fled the country) to return to the political stage without fear of prosecution; uphold the provisions of the Cambodian Constitution; respect freedom of expression; and encourage pluralism in Cambodia’s democratic system. Please also note your concern regarding the illegal detention of Cheam Channy and the potential for him to be tortured whilst he is detained. Please also send a copy of that letter to the other relevant authorities listed below.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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DETAILED INFORMATION:

In a closed session on 3 February 2005, the Cambodian National Assembly voted by a two-thirds majority to lift the parliamentary immunity of outspoken opposition leader Sam Rainsy and legislators Cheam Channy and Chea Poch, members of the Sam Rainsy Party (SRP). As a result, all three opposition politicians now face criminal charges under lawsuits initiated by Cambodian Prime Minister Hun Sen or Ranariddh, his partner in a coalition government that was established after national elections in 2003.

After the National Assembly vote, Rainsy immediately fled the country and Poch went into hiding. At 7pm that night, Cheam Channy was arrested, taken to a military court for questioning, and detained at the National Military Police Headquarters for two nights. He was then transferred to the military prison in Phnom Penh. He has been charged by the Military Court for having committed “an offence against the regulation of the Co-Commander General of the Royal Cambodian Armed Forces, dated 26 February 1997.” He is also charged with acts punishable under Article 36 (organised crime) and 45 (fraud) of the 1992 Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period (UNTAC Law).

Under Cambodian law, the mandate of the Military Court covers only military offences committed by currently-serving military personnel. As Cheam Channy is a civilian and the crimes he has been charged with are not of a military nature, it is beyond the scope of the Military Court to prosecute or detain him. Evidently, this has been ignored. The military court seems to have taken the view in the past that it can charge civilians for offences that merely “relate” to the military. However, it is clear in law that people who are not members of the Royal Cambodian Armed Forces fall under the jurisdiction of civilian courts only.

In this context it is also important to note that Cambodia is a State party to the International Covenant of Civil and Political Rights (ICCPR) which it acceded to in 1992. The Cambodian authorities are therefore obliged to ensure that the rights guaranteed by the Covenant are protected and upheld. Article 14 of the ICCPR guarantees equality before the courts and the right to a fair trial in a competent, independent and impartial tribunal established by law.

Further, in a large number of observations and recommendations to State parties, the Human Rights Committee, as the monitoring body for compliance by states with the provisions of the Covenant, has taken the firm view that the jurisdiction of military courts should be limited to offences which are strictly military in nature and which have been committed by military personnel.

Sam Rainsy and Chea Poch face criminal defamation complaints filed by Ranariddh at the Phnom Penh Municipal Court last year for allegedly stating that the Prince accepted bribes in exchange for agreeing to form a coalition government with Hun Sen’s ruling Cambodian People’s Party (CPP). Rainsy also faces a suit from Hun Sen after he allegedly stated that Hun Sen had drawn up a blacklist of political opponents to be assassinated, including Rainsy. A third case of defamation against Rainsy was filed by members of a Buddhist pagoda near Phnom Penh, after Rainsy warned King Sihanouk of possible demonstrations being planned by people at the pagoda upon the King’s return to Cambodia last October.

Criminal defamation has been condemned the world over. However, in Cambodia, where there has not been the proper development of a penal code, criminal defamation may be punished by heavy fines or imprisonment. People can be arrested before trials are held and can be kept in detention until the trial is conducted.

In the case of political trials, the outcome is predetermined, for sadly, there has been very little development of the court system in recent decades. Many observers and critics have pointed out the extreme defects of the legal system; but even after the 1993 elections, after which Cambodia accepted liberal democracy as its ruling philosophy, no genuine changes in the law have been brought about to ensure a well-functioning court system.

LATEST UPDATE:

Cheam Channy, currently detained in a military prison in Phnom Penh, has had his application for release on bail refused by the military court. His lawyer has appealed this decision and the appeals court must rule within two weeks, though it is highly unlikely that they will free him. The Phnom Penh court also announced last week that it has now brought criminal defamation charges against Chea Poch, making him liable to arrest should he return to the country.

SUGGESTED ACTION:

Please send a letter, fax or email to the Cambodian government requesting it to: restore parliamentary immunity to the three opposition party members; release Cheam Channy, who is currently being detained; allow Sam Rainsy, who has fled the country, and Chea Poch, who has gone into hiding, to return to the political stage without fear of prosecution; uphold the provisions of the Cambodian Constitution; respect freedom of expression; and encourage pluralism in Cambodia’s democratic system. Please also note your concern regarding the illegal detention of Cheam Channy and the potential for him to be tortured whilst he is detained. Please also send a copy of that letter to the other relevant authorities listed below.

 

 

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