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Logo of Phnom Penh Post newspaper Phnom Penh Post - A lot of effort went into creating a ‘legal fiction’

Armed police search for Kem Sokha at the CNRP headquarters in Phnom Penh’s Meanchey district last week.
Armed police search for Kem Sokha at the CNRP headquarters in Phnom Penh’s Meanchey district last week. Pha Lina

A lot of effort went into creating a ‘legal fiction’

Paramilitary police attempted to arrest Kem Sokha, deputy leader of the opposition CNRP party, on Thursday afternoon by storming his car and several CNRP offices, actions that have been described by the US Embassy in Phnom Penh as being “disproportionate and dangerous steps” by the Cambodian government. The Phnom Penh Municipal Court revealed late on Friday evening that they had a letter of arrest (a warrant) in an attempt to legitimise the actions of the paramilitary police earlier that day.

The arrest letter identified Article 538 of the Criminal Code as the justification for the attempted arrest. Ignoring for the moment that the letter of arrest was only made public after the storming of Kem Sokha’s car and CNRP offices by paramilitary police, the recent events surrounding Kem Sokha’s case would lead me to the conclusion that the ruling CPP is trying everything they can to create a legal fiction that legitimises their heavy-handed actions.

Article 538 of the Criminal Code makes it a criminal offence in Cambodia for a person who is served a summons to be heard as a witness to “refuse to appear without proper justification”. The letter of arrest points to the fact that Sokha failed to appear as a material witness before the prosecutor twice without proper justification.

Sokha is a member of the National Assembly and therefore has immunity from arrest under Article 80 of the Constitution of Cambodia, the only exception under that provision is if he is in flagrante delicto, or he is caught in the act of committing an offence. In this case, the letter of arrest made the police actions lawful as they were attempting to arrest Sokha in the process of committing the offence of “refusing to appear [under a summons] without proper justification”.

The “legal fiction” in this saga goes right back to the original “offence” being investigated by the court. If we go back and actually look at the original summonses issued to Sokha, we would see that neither the court nor the government have explicitly told Sokha what crime was being investigated.

Up until this point, the government has repeatedly referred to the investigation of the crime of “prostitution”, which does not actually exist under the Criminal Code. However, a close reading of the words found in the letter of arrest would suggest that “Procuring” under Article 284 of the Criminal Code could potentially be the provision under investigation.

I have great difficulty in fitting any of the four interpretations of “Procuring” with Kem Sokha’s relationship with Ms Khom Chandaraty, aka Srey Mon: There is no evidence that anyone made a financial gain out of prostituting another person (presumably Ms Khom Chandaraty).

There is also no evidence presented that anyone aided or protected the prostitution of another. There was no recruiting of a prostitute or exertion of any pressure on anyone else to become a prostitute. I would suggest that the only other possible crime that could have been investigated, given what little we know about the relationship between Kem Sokha and Khom Chandaraty, would be “soliciting” in public under Article 24 of the Law on Suppression of Human Trafficking and Sexual Exploitation.

This is a crime that carries a punishment of up to 10,000 riel or six days imprisonment. Such a crime would surely be too trivial for the state to be pursuing with such excessive amount of resources given the lack of evidence to even support that in the first place. In fact, there is no suggestion whatsoever that Ms Khom Chandaraty was at any time working as a prostitute. The sole allegation has always been that she has engaged in an extramarital affair with Kem Sokha.

Ultimately, none of the above discussion really matters. Kem Sokha is a member of the Cambodian Parliament, and under the Constitution he enjoys immunity against “the arrest, the police custody or the detention of” his person, unless there is a two-thirds majority votes in the National Assembly to strip him of that immunity, a majority that the ruling CPP currently lacks in the National Assembly.

As we go back to the justifications made by the municipal court for his arrest, I would suggest Kem Sokha would have a perfectly justifiable reason as to why he has ignored the previous two summonses. In essence, he has parliamentary immunity, one that is enshrined in the constitution, the highest law of the land.

It appears that the court has created the summonses in order for Kem Sokha to ignore them, so they can justifiably invoke Article 538 of the Criminal Code and allege that the in flagrante delicto exception would apply. If this is the true intention of the court, then it would be an elaborate and rather convoluted scheme to “entrap” a serving parliamentarian. It is disappointing to see the Cambodian court system bowing to political pressure in legitimising the actions of the CPP government.

Billy Chia-Lung Tai is an independent human rights and legal consultant.



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GeorgeM's picture

The National Assembly of the Kingdom of Cambodia does not need two-thirds majority to strip a lawmaker of their parliamentary immunity. Absolute majority suffices when this action is undertaken directly by the National Assembly. The two-thirds majority requirement is only applicable when the Standing Committee gives a go ahead at a time when the National Assembly is not in session.

Article 80

Members of the National Assembly shall enjoy parliamentary immunity.

No National Assembly’s Member can in any case be prosecuted, arrested, kept in police custody or detained because of his/her opinions or of the votes expressed during the exercise of his/her functions.

The prosecution against, the arrest, the police custody or the detention of any Member of the National Assembly is possible only when approved by the National Assembly or by the Standing Committee during the interval between sessions, except in flagrante delicto case.

In this last case, the competent ministry must urgently report to the National Assembly or to the Standing Committee for decision.

The decision of the National Assembly’s Standing Committee must be submitted to the next session of the National Assembly for adoption by two-third majority of all its members.

In all the aforementioned cases, the detention of, the prosecution against any National Assembly’s Member shall be suspended, if the National Assembly so decided by three-forth majority of all its Members.

billycltai's picture

thank you for your comment. I would agree with you to the extent that different people are perfectly entitled to their own interpretation of the law, in this case, the Constitution. The key issue here is that there isn't a competent legal authority that interpret the law that has been enacted in Cambodia, in the case the 'legal authority', the courts in Cambodia has not even been willing to interpret the provisions in the law and set precedents for future cases. I also happen to disagree with your interpretation of the 2/3 provision within the Constitution, but since I am assuming neither of us are part of the 'legal authority' (feel free to correct me, I am just making assumptions) here in Cambodia, it is arguable that neither one of our interpretation is more authoritative than the other's.

GeorgeM's picture

Thank you for the response. The Constitutional Council is the sole body tasked with the responsibility to interpret the Constitution (see Art 92, and 136 new), and the CNRP lawmakers may use the procedures prescribed under Chapter XII new to approach the body.

Article 92
Any adoption by the National Assembly contrary to the principles of safeguarding the independence, the sovereignty, the territorial integrity of the Kingdom of Cambodia, and affecting the political unity or the administrative management of the nation, is reputed to be null. The Constitutional Council is the sole organ competent to pronounce this nullity.

Article 136 new
The Constitutional Council shall have the competence to guarantee the respect of the Constitution, to interpret the Constitution and the Laws adopted by the National Assembly and definitively reviewed by the Senate.

The Constitutional Council has the right to examine and to decide on litigations related to the elections of the Members of the National Assembly and to the elections of the Senators.

It appears to me that parties sympathetic to CNRP seem to view "parliamentary immunity" as a get-out-of-jail-free pass. It is not. The sole purpose of enshrining parliamentary immunity in constitutions around the world, and in the immediate case, the Cambodian constitution, is to preserve and protect parliamentary sovereignty. It is to prevent other branches of the State from unjustifiably interfering in parliamentary matters by attempting to detain, arrest or prosecute the representatives of the people. In the immediate case, it appears that the body-sovereign of the parliament does not have any objections against the arrest and prosecution of Kem Sokha for his refusal to appear before a competent tribunal.

The language of the Constitution is clear inasmuch as it prescribes that the arrest or prosecution of a sitting parliamentarian possessing immunity may only be effected when it is approved by the National Assembly or the Standing Committee. The Standing Committee constitutes of the President of the National Assembly, the two Vice-Presidents, and the Presidents of all the Commissions in the National Assembly. It remains in charge of the functioning of the legislative chamber when it is in recess (see Art 84).

The paragraph in question in the context of our non-controversy controversy has been reproduced below for your kind perusal:

"The decision of the National Assembly’s Standing Committee must be submitted to the next session of the National Assembly for adoption by two-third majority of all its members."

I would suppose that a single reading of the text above would make it abundantly clear that the concerned provision does not extend the requirement of a two-thirds majority to the National Assembly itself. It only requires an endorsement by two-thirds majority of the National Assembly when a decision concerning the arrest and prosecution of a sitting member is taken by the Standing Committee, which would tend to happen when the legislative chamber is not in session. The intent of the drafters here is to clearly circumscribe the powers of a relatively small body of lawmakers so as to prevent abuse when the larger chamber is not in session.

To discard the above interpretation in favour of the one which you have explicated in your article would imply that the pertinent constitutional provision makes for ambiguous reading, and is thereby open to different interpretations based on who is doing the interpreting; ostensibly a mistake made by incautious drafters not sufficiently prescient!

Even if we were to assume this line of thinking as accurate, it would still not adequately address the issue of a similarly worded provision (added several years later) concerning the immunity given to the members of the Senate (see Article 104 new), included below for your ready reference:

"The decision of the __Senate’s Standing Committee__ must be submitted to the next session of the Senate for adoption by two-third majority of all the Senators." (emphasis mine)

While we are all entitled to our personal views (a right enshrined in the Constitution), this particular position on the issue of parliamentary immunity betrays a lack of grounding in constitutional law.

GeorgeM's picture

Political analysts should note that while Mr Kem Sokha may not be charged under the provisions of the Criminal Code and the Law on Suppression of Human Trafficking and Sexual Exploitation, Ms Chandaraty still faces the charge of soliciting in public (u/A 24 of the Law on Suppression of Human Trafficking and Sexual Exploitation).

Mr Kem Sokha was summonsed by the prosecutor to serve as a witness during the preliminary hearings where he is expected to submit to questioning by the prosecution and depose under oath. If he admits the "affair", he may be charged under the Law on Monogamy, and if he refutes it, it is possible that he may be charged additionally under provisions concerning perjury (A. 545 of Criminal Code concerning 'false testimony under oath'), in the event prosecution is able to prove their charges beyond reasonable doubt.

While individuals who have been charged possess the right to remain silent (right against self-incrimination) under the provisions of the Code of Criminal Procedure, it is not clear whether witnesses also possess such rights.

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