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Immunity imbroglio

Immunity imbroglio

In recent days, there have been a number of calls from different quarters for the

National Assembly to reverse the waiver of immunity from prosecution for three of

its members. For example, the UN Human Rights Envoy implied that the move was antidemocratic.

In addition, members of foreign parliaments have denounced the action. But without

getting into the particulars of the court cases against the legislators, the position

taken by so many representatives of democratic societies is contrary to modern democratic

practice. The fact is that no modern democracy has legislative immunity as broadly

interpreted as that of Cambodia. In many other such democracies, the court cases

would have proceeded long ago without legislative debate or action.

First, there is the issue of the definition of actions for which immunity can be

applied. The Cambodian Constitution's Article 80 does not define what crimes allegedly

committed by a legislator are covered. Consequently, the clause has been interpreted

to include all crimes. Yet nowhere else in the civilized world is such an interpretation

permitted, and it is ironic that so many advocates of democracy are now endorsing

this interpretation.

The United Kingdom, home of the Magna Carta and a source of many modern democratic

traditions, dates parliamentary privilege to at least 1770, and the privilege includes

most prominently freedom of speech. But it is not unfettered, unbridled speech. It

is confined to remarks made during parliamentary proceedings, and if the comments

are made in these fora, no member can be prosecuted for libel or slander. However,

if the same member repeats the allegations outside of parliament, he is not protected

by the privilege.

Similarly, Australia has adopted similar standards to ensure that parliament can

effectively carry out the functions of inquiry, debate and legislation. Like the

United Kingdom, perhaps the most significant aspect of parliamentary privilege in

Australia is freedom from prosecution for anything members say during debate in the

respective Houses. The privilege does not extend outside the legislature.

Finally, one of the world's most prominent democracies, the United States, endorses

this privilege in its Constitution. It provides that members of Congress are immunized

from liability for statements made in "speech or debate." However, this

immunity does not apply to statements made outside of Congress. This was most recently

confirmed by the US Supreme Court, which in the 1979 case of Hutchinson v. Proxmire,

confirmed that immunity only protected congressmen for statements made during official

congressional business, not statements for public consumption.

In that case, a US Senator had ridiculed the use of thousands of dollars of taxpayers

money to fund a project to find out why monkeys grind their teeth. He thought that

there was a better use for the money, and the project was awarded the Senator's "Golden

Fleece Award." The scientist in charge of the project sued the Senator for slander,

and the US Supreme Court decided that congressional immunity could not be claimed

by the legislator because he had sent out notice of the award by press release and

newsletter, thus putting the issue in the public domain.

Regardless of how Cambodia came to believe that parliamentary privilege was broad

in scope, in fact it amounts to another measure of how impunity springs from immunity.

Public officials should be held accountable for their words and actions, and it is

curious that now many advocates of democracy in Cambodia disregard the principle

that no man is above the law when it suits them.

There is a secondary issue involving Article 80 of the Cambodian Constitution, which

dictates that immunity can only be lifted by a vote of the National Assembly. In

many modern democracies, such as the United States, court action can be taken against

a legislator by any citizen who feels that he has been slandered or libeled. In such

cases, the legislator may use parliamentary privilege as a defense, but it is up

to the court to decide whether the principle is applicable in the case at hand. Not

so in Cambodia, where the court cannot proceed without the waiver by the National

Assembly.

Again, it is curious why so many self-proclaimed defenders of democracy are not applauding

this narrowing of the definition of parliamentary privilege as practiced in Cambodia

- and putting it more in line with international standards. The politics of the current

imbroglio notwithstanding, as a principle legislators should not be considered above

the law. Just because a prominent opposition figure is involved in the case cannot

justify such support for a culture of impunity.

Bretton G. Sciaroni - Phnom Penh

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