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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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