I read your article Immunity Moves to the Fore (published 17 July 2014) with great interest and would like to respond to a few basic misunderstandings among the public reflected in the article.
The issue: When does the parliamentary immunity attach?
The answer is really simple and clear based on the parliamentary immunity’s internal logic and the constitution.
Simply, the privilege is not absolute and attaches only to “opinions expressed in the exercise of his/her duties” (Article 80). It follows then that this partial privilege assumes the existence of a legitimate National Assembly.
The CPP-established National Assembly is prima facie unconstitutional. How is the National Assembly formed? Simply, the formation of the National Assembly is a process that must satisfy four conditions: (i) the election results produced at least 120 members; (ii) these 120 MPs-elect convened the initial session (iii) at the invitation and presence of the King, and (iv) they took an oath before assuming official functions.
The CNRP deems this CPP-established National Assembly unconstitutional. Hence, consistency and coherency require that the CNRP forgo the claim to parliamentary immunity. Legal and political considerations also require that the CNRP forgo the privilege.
Particularly, the detained MPs-elect should not invoke this privilege for the following reasons.
First, invoking it will not make any difference to the Kafka-esque legal proceeding; and in fact, it could work against the CNRP in its political negotiation.
Legally, the charges against them of insurrection and incitement are baseless, the proceedings overtly political and riddled with irregularities, and thus they have no need to invoke this immunity, even if it has force.
Politically, invoking it will only undermine the CNRP’s boycott of the CPP-established parliament. It will create further confusion for it and the public, make it fall prey to this CPP set up, and weaken its hands in future negations.
Second and to the contrary, it is to the CNRP’s advantage not to rely on the parliamentary immunity. In doing so, it clears one smokescreen to the risible, politically motivated charges. This is where the focus is, and it should be kept here, without any distraction of immunity talk. The legal case is groundless: let it stay clearly so without other entanglements and force the authorities to deal with it.
Related, in not invoking their parliamentary immunity, the falsely accused CNRP elected MPs help to strengthen the position of other defendants who have been wrongly and politically accused who are not elected MPs with the possibility of immunity.
Theary C Seng
Center for Cambodian Civic Education Phnom Penh