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Resolution adopted without a vote by the IPU Council
at its 170th session (Marrakech, 23 March 2002)

The Council of the Inter-Parliamentary Union,

Having before it the case of Mr. Chhang Song, Mr. Siphan Phay and Mr. Pou Savath, members of the Senate of Cambodia, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians in accordance with the "Procedure for the examination and treatment, by the Inter-Parliamentary Union, of communications concerning violations of human rights of parliamentarians",

Taking note of the report of the Committee on the Human Rights of Parliamentarians, which contains a detailed outline of the case (CL/170/13.c(ii)-R.1),

Taking account of the information provided by the Cambodian delegation at the hearing held with the Committee on the occasion of the 107th Conference (March 2002),

Considering the following information on file:

  • On 6 December 2001, the Cambodian People's Party (CPP) decided to expel Mr. Chhang Song, Mr. Siphan Phay and Mr. Pou Savath, incumbent members of the Senate; the relevant decision refers to Article 26 of the CPP Internal Rules and Article 30 of its Internal Regulations and is justified by "wrongdoings" of the Senators in question;
  • On 7 December 2001, the party requested their replacement in the Senate; having obtained the approval of the King, the Acting Head of State signed the Royal Decree to replace them on 12 December 2001; the newly designated persons took office on 20 December 2001;
  • Mr. Chhang Song, Mr. Siphan Phay and Mr. Pou Savath were summoned on 8 December 2001 to appear at their party headquarters, where the party's decision to expel them was handed over to them; they were subsequently informed of their expulsion from the Senate;
  • All three were expelled from their party and the Senate without any warning and without any Senate meeting having been held,

Considering that, according to the Senate President, the decision to expel was taken in accordance with new Article 157 of the Cambodian Constitution, which stipulates that in its first legislative term "the Senate shall be nominated by the King upon a proposal by the President of the Senate and the President of the National Assembly from among members of political parties which have seats in the National Assembly"; in his view, the Article binds the seats in the Senate to membership of the three main political parties present in the National Assembly, as a result of which any Senator who loses membership in his own party will forfeit his seat in the Senate, once his party seeks a replacement; the Senate having been formed under Article 157 with the same proportional representation as the National Assembly, it is, in his view, "the Senate's clear duty to ensure that the will of the people be upheld and that such proportional representation be maintained at all times"; moreover, on the basis of Article 115, which stipulates that the mandate of a Senator ends in the event of death, resignation or disqualification, he argues that the drafters of the Constitution intended that "disqualification" should cover the removal or resignation of a party member or a change in party membership; according to him, if disqualification did not refer to these situations, "it would inevitably lead to a result that would violate Articles 51 and 157 of the Constitution, as well as established principles of democracy and human rights"; the Senate President mentioned the case of Mr. Sam Rainsy, who had also been expelled from Parliament after his expulsion, in May 1995, from his party, the FUNCINPEC,

Considering that, according to the source, the expulsion was a result of statements by the Senators concerned in the Senate in the morning of 6 December 2001 during discussion of the Criminal Code Bill; the Bill, on whose adoption Co-Minister of the Interior Sar Kheng is said to have been particularly insistent, had already generated heated debate in the National Assembly, where it had only been adopted after the second reading; the Senators in question raised concerns that the new Code violated the separation of powers and could lead to dictatorship, sought a clarification on the relationship between military police, police and court officials, and took a stand against an extension of the pre-trial detention period from 48 to 72 hours; as a result the Bill was defeated, by 34 votes to 17; this is said to have infuriated the CPP and to have made the Party decide more or less forthwith to expel them,

Considering also that other CPP members reportedly took a stand against the bill, such as Mr. Chuor Leang Huot, MP and senior CPP lawyer, Mr. Ouk Bun Choeurn, former CPP Minister of Justice and Chairman of the Senate Legislation Committee, and Mr. Dith Munti, Justice of the Supreme Court,

Bearing in mind that neither the Constitution nor the Senate Internal Rules provide for expulsion from the Senate and lay down the grounds and procedure therefor; recalling more specifically that neither the Constitution nor the Senate Internal Rules define action to be taken as a result of a Senator being expelled from their party; further noting that the Senate Internal Rules merely address issues related to absence from meetings and unfitting behaviour and the relevant disciplinary measures, a matter not at issue in the case in point; noting nevertheless, that Chapter XIV lays down a procedure in disciplinary matters requiring, in the case of a written blame with temporary expulsion, a secret two-thirds majority vote of the Senate,

Recalling that, in the case of Mr. Sam Rainsy to which the President of the Senate refers as a precedent in his letter of 21 December 2001, the Inter-Parliamentary Union, while recognising that political figures might be excluded from their party for expressing views deemed unacceptable by the latter, could hardly accept, given the legal provisions governing the termination of the parliamentary mandate, that a parliamentarian who had been expelled from a party for that reason should lose his seat, in the last resort solely for having exercised his right to freedom of expression,

Bearing in mind that Article 51 of the Constitution stipulates that: "The Kingdom of Cambodia adopts a policy of Liberal Democracy and Pluralism. The Cambodian People are the masters of their own country. All power belongs to the people. The people exercise these powers through the National Assembly, the Senate, the Royal Government and the Judiciary. The legislative, executive and judicial branches shall be separate"; Article 31 of the Constitution states that: "The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women’s and children’s rights"; that one major international human right is freedom of expression, enshrined in Article 41 of the Constitution and that, in keeping with this right, with regard to Members of the Cambodian Parliament, Article 104 of the Constitution guarantees parliamentary non-accountability and establishes a procedure to protect Senators against any breach thereof,

  1. Thanks the President of the Senate for the information provided and for his cooperation;
  2. Stresses that the revocation of a parliamentarian’s mandate is a serious measure which irrevocably deprives such a member of the possibility of carrying out the mandate entrusted to him or her, and that it should therefore be taken in strict compliance with the law and only on serious grounds;
  3. Affirms that, in the absence of any constitutional or statutory provisions regarding the expulsion or dismissal of members of the Senate on the grounds that their political party has expelled them, the dismissal from the Senate of Mr. Chhang Song, Mr. Siphan Phay and Mr. Pou Savath is unlawful;
  4. Cannot share the view of the authorities that "disqualification" in Article 115 of the Constitution must be interpreted as referring to situations where a Senator is removed from, resigns from or changes party membership; emphasises in this respect that, in parliamentary law, the term "disqualification" usually means forfeiture of a parliamentary mandate pursuant to a judicial decision;
  5. Considers the latter interpretation of the term "disqualification" to be consistent with the principles of liberal democracy and pluralism laid down in Article 51 of the Constitution;
  6. Affirms that in making the statements against the criminal code bill, as brought to its attention, the Senators concerned were defending human rights and democratic principles and fulfilling their role as a guardian of human rights;
  7. Urges therefore the Senate to reconsider its decision;
  8. Wishes to ascertain the possibilities of legal redress available to the Senators concerned;
  9. Requests the Secretary General to convey this resolution to the President of the Senate and to the Prime Minister of Cambodia, requesting them to take these matters into urgent account;
  10. Requests the Committee on the Human Rights of Parliamentarians to continue examining this case and report to it at its next session (September 2002).

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