IPU Logo-top   
 IPU Logo-middleInter-Parliamentary Union  
IPU Logo-bottomPlace du Petit-Saconnex, P.O. Box 438, 1211 Geneva 19, Switzerland  

Resolution adopted unanimously by the IPU Council
at its 171st session (Geneva, 27 September 2002)

The Council of the Inter-Parliamentary Union,

Referring to the outline of the case of Mr. Chhang Song, Mr. Siphan Phay and Mr. Pou Savath, members of the Senate of Cambodia, as contained in the report of the Committee on the Human Rights of Parliamentarians (CL/171/12(a)-R.1), and to the relevant resolution adopted at its 170th session (March 2002),

Taking account of a letter from the President of the Senate dated 20 August 2002 and of communications from the source dated 27 August 2002,

Recalling that, on 6 December 2001, the Senators concerned were expelled from their party, the Cambodian People's Party (CPP),on the grounds of "wrongdoings", and subsequently, without any notification or procedure, also from the Senate and their successors were sworn in on 12 December 2001; considering that, according to the source, Senator Siphan Phay learned about his expulsion from the Senate when he was stopped by the guards at the entrance to the Senate and informed that he was no longer welcome; as to Senator Chhang Song, he was inside the Senate compound when guards approached him to inform him that he was no longer allowed in,

Considering that, in his letter of May 2002, the Senate President reaffirmed his position, namely that "our practices and law provide for the loss of seat in the Senate in case a member is fired by his/her party", adding that "democracy is in progress in Cambodia, but it is a fledgling democracy based on reconciliation and compromise between political parties, whereby they have power over individuals. Our election follows the proportional system in which the people vote for parties, not individuals. That is why the position held by the individual member is linked to his/her party membership. In spite of certain flaws or ambiguities in our regulations as regards this case, the prevalent practices are based on the formula 'By the same way for the entry and exit … unless these practices and laws are amended, we have no other choice at all' …", a position which he reaffirmed in his letter of 20 August 2002, adding that "in the operation of the Cambodian Senate, freedom of expression and the democratic principles are well ensured. All Senators, especially those from the opposition, are able to express their contradictory opinions deliberately",

Considering also that, in response to its recommendation (para. 7 of the resolution adopted by the Council at its 170th session) that the Senate reconsider the decision to expel the Senators, the President replied that, according to the Senate's practices and Standing Orders, there was no procedure within the Senate to review such a case and that, moreover, the Senators had so far never filed a complaint in that respect; considering further, however, that, according to the source, on 5 January 2002 Senator Chhang Song filed a complaint with the Senate Committee on Human Rights and Complaints asking the Senate to reconsider the case, to apply due process of law and to compensate him and his family for the damage caused by the unlawful Senate decision; the Chairman of the Committee, Mr. Kem Sokha, reportedly sent copies of the complaint to all nine Senate Committees, in addition to which Senator Chhang Song himself sent copies of his complaint to the Secretary General of the Senate, Mr. Oum Sarith, to the Chairperson of the Senate Committee on Foreign Affairs, Information and the Media, Mrs. Ty Borasy, and to the Chairperson of the Senate Committee on Finance and Budget, Senator Chea Peng Chheang; however, Senator Chhang Song has reportedly received no answer to date; noting in this respect that Senator Chhang Song also appealed to the King, who responded by saying that "as a constitutional monarch, I reign and do not govern and cannot interfere with the political parties",

Considering further that, according to the President of the Senate, as stipulated in Article 136, only the Constitutional Council is competent to interpret the Constitution and that consequently only that body "can judge whether or not the Senate's measures conform to the Cambodian Constitution", specifying that "up to now, no complaint has been lodged by any individual or institution against the dismissal of Mr. Chhang Song, Mr. Phay Siphan and Mr. Pou Savath with the Constitutional Council"; considering finally that, according to the source, an individual can do so only once a case has been decided by the Supreme Court; otherwise, only a group of Senators could refer such a case to the Council; and noting in this respect that Articles 140 and 141 of the Constitution entitle the King, the Prime Minister, the President of the National Assembly, one tenth of the Assembly's members, the President of the Senate and one quarter of the Senators to refer draft laws to the Council, and they may request a review of the constitutionality of laws adopted,

Recalling that, according to the Senate President, the Senators concerned accepted the CPP's decision to dismiss them without complaint and were advised to refer their complaint to the Cambodian courts; and considering that, according to the source, Senator Chhang Song intended to lodge a complaint but had so far been unable to find a competent lawyer willing to work with him on the case,

Recalling also that the source believes that the grounds for the expulsion of the Senators concerned were their criticism, in Parliament, of the Criminal Code Bill, as it was instrumental in the defeat of the Bill, as a result of which they were strongly criticised by the CPP leadership, which reportedly perceived their intervention as a concerted effort to defeat the policy of the Party; and considering in this respect that, according to the Senate President, other CPP Senators and members also criticised the Bill, which shows that their expulsion has nothing to do with what they said in Parliament,

Recalling further that neither the Constitution nor the Senate Standing Orders provide for expulsion from the Senate and do not lay down the grounds and procedure therefore; noting more specifically that neither the Constitution nor the Senate Standing Orders provide for expulsion from the Senate as a result of expulsion from a party; noting also that the Senate Standing Orders merely lay down a procedure in disciplinary matters requiring, in the case of a written reprimand with temporary expulsion, a two-thirds majority vote of the Senate; they in no way authorise the replacement of a Senator on the ground of loss of party membership,

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; Article 31 of the Constitution states that: "The Kingdom of Cambodia shall recognise 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, Article 104 of the Constitution guarantees parliamentary non-accountability for members of the Cambodian Parliament and establishes a procedure to protect Senators against any breach thereof,

  1. Thanks the President of the Senate for his observations and consistent cooperation;

  2. Observes nevertheless that none of the observations and information he submitted disprove the Committee's conclusions, namely 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;

  3. Wishes to stress the following in particular: it is a distinctive feature and common rule of liberal pluralist democracies, such as Cambodia's, whatever election system, proportional or otherwise, they apply, that political parties cannot revoke the parliamentary mandate unless this is expressly stipulated by law and governed by a specific procedure;

  4. Emphasises that a "practice" cannot be invoked to justify a procedure which is not provided for by law, particularly when such grave issues as revocation of a parliamentary mandate are involved;

  5. Disapproves in the strongest terms of a "practice" which does not provide for the persons concerned to exercise their right to defend themselves, and does not provide for due notification of a decision of such gravity as expulsion from a legislative body;

  6. Believes that it is essential for any fledgling democracy strictly to adhere to the rule of law and respect for human rights and to avoid recourse to "practices", as they open the door to arbitrariness;

  7. Notes that, along with the highest State authorities, the Senate President or one quarter of the members of the Senate can seek an interpretation of the Constitution, including of the term "disqualification" in Article 115, and invites the authorities to make use of this "choice";

  8. Notes that Senator Chhang Song has submitted a complaint to the Senate Committee on Human Rights and the Reception of Complaints and informed other Senate Committees thereof, and wishes to ascertain what action has been taken on it;

  9. Reaffirms 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 guardians of human rights;

  10. Consequently urges the Senate to take remedial action without further delay to prevent such occurrences in the future and thus ensure that all members of Parliament may, without fear of retaliation, exercise their freedom of speech essential to fulfilment of their mandate as representatives of the people;

  11. Asks the Secretary General to convey this resolution to the King, to the President of the Senate and to the Prime Minister of Cambodia, requesting them to take these matters into urgent account; also asks him to convey the decision to the United Nations human rights bodies and other competent organisations;

  12. Requests the Committee on the Human Rights of Parliamentarians to continue examining this case and report to it at its next session (April 2003).
Note: you can download a complete electronic version of the brochure "Results of the Special Session of the Council and related meetings of the Inter-Parliamentary Union" in PDF format (file size approximately 534K). This version requires Adobe Acrobat Reader, which you can download free of charge.Get Acrobat Reader