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Logo of Phnom Penh Post newspaper Phnom Penh Post - Immunity debate needs context

Immunity debate needs context

Immunity debate needs context

Bretton Sciaroni (Letters, PPP Vol. 14 No. 4) is right to point out that in democracies such as the UK, US and Australia, parliamentary privilege is restricted to statements made during parliamentary proceedings. Sadly, Cambodia is far from resembling a modern democracy of this type. Its citizens do not enjoy the protection of an independent judiciary, and criminal law is routinely abused to silence legitimate criticism. Parliamentary immunity in Cambodia acts as a limited safeguard against politically motivated prosecution; while it should never be invoked to perpetuate impunity for criminals, neither should it be revoked in order to arbitrarily arrest and detain political opponents.

In his most recent report to the Human Rights Commission, the UN Special Representative noted that the Cambodian judiciary "does not and cannot act in an independent and impartial manner when faced with the interests of those with economic and political power and influence. It has continued to be subject to executive interference and open to corruption, and human rights problems have gone unchecked." Given these serious inadequacies, the National Assembly should proceed with the utmost caution when considering a judicial request for the lifting of parliamentary immunity. At minimum, this should include rigorous and transparent debate on the legality of the request, the nature of the charges and the possibility of political motivation. Unfortunately, it is not known whether such discussions took place during the relevant session on February 3rd, as it was conducted behind closed doors - only serving to further undermine public confidence in the legality and neutrality of the process.

Mr Sciaroni is correct to report that MPs in the UK, US and Australia may be sued for defamatory comments made outside the legislature. However, he omits to mention that it is extremely unlikely they would be subject to criminal charges, which bring with them the threat of arrest and imprisonment. While criminal defamation does remain on the statute books in parts of the UK and some states of the US and Australia, it is virtually never used and has been condemned in all three countries as a repressive anachronism. In Cambodia, however, criminal prosecution for defamation is commonplace. Those charged are subject to arrest, lengthy periods of detention whilst waiting to prove their allegations in court and eventual prison sentences of up to a year. This treatment would be unthinkable in Mr Sciaroni's model democracies, where no custodial sentences for defamation have been imposed for many decades.

As the International Federation for Human Rights pointed out in its statement of February 10th, the UN Special Rapporteur on Freedom of Expression considers that criminal law is not appropriate for regulating libel or defamation and that criminal defamation is not a justifiable restriction on freedom of expression; "all criminal defamation laws should be abolished and replaced, as necessary, with appropriate civil defamation laws". It is unfortunate that the National Assembly did not take this assessment into account, nor the fact that the law is being applied selectively: only opposition politicians have been singled out for legal charges, whilst complaints against ruling coalition members have been dismissed or set aside by the courts.

Finally, in applauding this triumph of "democracy", it is not surprising that Mr Sciaroni chooses to set aside "the politics of the current imbroglio" -

otherwise he would have to take into account the case of Cheam Channy MP, who was arrested hours after his immunity was lifted on criminal charges brought by the Military Court. Cheam Channy's arrest and detention are manifestly illegal; both the 1992 "UNTAC" Law (the criminal code currently in force) and the 1993 Law on the Organisation and Activities of the Adjudicative Courts clearly state that the Military Court's jurisdiction is over military personnel for military offences. On these grounds alone, the National Assembly should have refused to approve the lifting of Cheam Channy's immunity. The fact that this motion was adopted shows political considerations were placed above the rule of law on February 3rd.

These are the reasons why proponents of democracy and human rights have condemned the actions of the National Assembly in lifting the immunity of the three opposition parliamentarians. We look forward to the day when Cambodia's judiciary is free from political interference, and all citizens - including parliamentarians - are held equal in the eyes of the law. Until then, it is dangerous and misleading to suggest that it is the political opposition who are the beneficiaries of Cambodia's "culture of impunity".

Sok Sam Ouen

Chairperson of the Cambodian Human Rights Action Committee (CHRAC) and Executive Director of Cambodian Defenders Project (CDP)

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