CAMBODIA
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CASE N° CMBD/47 - MU SOCHUA
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Resolution adopted by consensus by the IPU Governing Council at its 185th session*
(Geneva, 21 October 2009)
The Governing Council of the Inter-Parliamentary Union,
Having before it the case of Mu Sochua, a member of the National Assembly of Cambodia, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians following the Procedure for the treatment by the Inter-Parliamentary Union of communications concerning violations of the human rights of members of parliament,
Taking note of the report of the Committee on the Human Rights of Parliamentarians, which contains a detailed outline of the case (CL/185/11(b)-R.1),
Noting that during the 121st Assembly the Committee met with the Cambodian delegation; taking into account the letter from the President of the National Assembly dated 4 September 2009,
Considering the following information on file:
- At a news conference held on 23 April 2009, Ms. Mu Sochua, a member of the opposition Sam Rainsy Party and former Minister for Women’s Affairs, announced that she would be bringing a defamation lawsuit against Prime Minister Hun Sen. This decision followed a public speech made by the Prime Minister on 4 April 2009 in Kampot province, which is Ms. Sochua’s constituency, in which he attacked the opposition and an unnamed woman member of parliament, who could only have been her. He reportedly used disparaging language, qualifying her inter alia as a women gangster or prostitute who had rushed to hug a man and unbuttoned her shirt to attract his attention. This reportedly refers to an incident that occurred during the July 2008 election campaign in Kampot province where she took a picture of a car with the licence plate of the army being used by the Cambodian People’s Party (CPP) during the campaign, which was illegal. The army officer who was driving the car assaulted her and twisted her arm in an attempt to grab her camera. During the attack, her shirt became unbuttoned;
- The day after Ms. Sochua announced that she would be bringing a lawsuit, a senior adviser to the Prime Minister told the press that he would in turn sue her and that all Cambodian People’s Party (CPP) National Assembly members would support the lifting of her parliamentary immunity. Five days later, the Prime Minister reportedly confirmed that he was suing “a lady”, whom he described as “stupid”;
- Ms. Sochua’s lawsuit and the Prime Minister’s suit against her and her lawyer were filed in Phnom Penh Municipal Court on 27 April 2009. In a speech he made on 29 April, Prime Minister Hun Sen called on the parliament to lift Ms. Sochua’s immunity and, alluding to his party’s majority, reportedly said that it would be “as easy as ABC”. Prime Minister Hun Sen’s lawyer, Ky Tech, a former president of the Cambodian Bar Association (CBA), also filed a complaint with the Bar Association against Ms. Sochua’s lawyer, Kong Sam Onn, accusing him of violating the attorneys’ code of ethics in this case. The CBA’s special team assigned to investigate his case has accused Kong Sam Onn of violating the CBA’s internal rules, which carries a penalty of disbarment for two years;
- On 10 June 2009, the Phnom Penh Municipal Court rejected Ms. Sochua’s lawsuit for lack of evidence, but accepted the Prime Minister’s case against her. She and her lawyer were summoned and appeared for questioning by the deputy prosecutor on 3 June 2009;
- On 22 June 2009, the National Assembly lifted Ms. Sochua’s immunity, after which, on 26 June, Phnom Penh Municipal Court charged her with defamation; the procedure for lifting her immunity was reportedly unlawful for the following reasons: (a) emergency rules were applied to prevent the public, the diplomatic corps, civil society and the media from attending the session; the sound system allowing television coverage was disconnected so that the session was not broadcast as usual; (b) the Speaker did not allow time for her to defend herself although she had asked to speak; the Speaker put the matter to the vote without a debate; (c) heavily-armed military police were seen outside the parliament building threatening the public with batons; however, according to the parliamentary authorities, the relevant rules of the National Assembly were fully respected and normal procedure was followed;
- In an article published on 18 June 2009 in the Phnom Penh Post, Prime Minister Hun Sen was quoted as saying that if Ms. Sochua’s immunity was lifted, that might well signal the end of her political career. “Lifting immunity is easy. Restoring it in some cases is not so easy. So Ms. Sochua will not be a parliamentarian forever; her party must replace her with a new person”, he was quoted as saying; according to the Cambodian delegation, parliamentary immunity is not automatically restored, but needs to be restored following the same procedure as that in use for the lifting of parliamentary immunity;
- The case was heard on 24 July 2009 before Phnom Penh Municipal Court. Ms. Sochua had no legal assistance as her lawyer had apologized to the Prime Minister and declined to present her defence. On 4 August 2009, the court delivered its verdict, finding Ms. Sochua guilty under Article 63 of the United Nations Transitional Authority in Cambodia (UNTAC law) Criminal Provisions of defaming Prime Minister Hun Sen on the grounds of (i) holding a press conference to announce that she would file a defamation lawsuit against the Prime Minister, (ii) informing international organizations such as IPU of the matter, (iii) affirming that the Prime Minister’s words against her “affected all Khmer women and women all over the world”, which showed that she had acted in bad faith with the intention of defaming the Prime Minister worldwide and besmirching his reputation and dignity. The Court sentenced her to payment of 8.5 million riel as a fine and 8 million riel in compensation; as to her lawyer Kong Sam Onn, the judge stated that the Prime Minister had withdrawn the complaint and that the charges against him had been dropped; Ms. Sochua has filed an appeal, which is due for hearing on 28 October. Ms. Sochua has not found a lawyer prepared to defend her,
Considering that the Committee sent an observer to the court hearing in the person of attorney at law Franklin Drilon, former member and President of the Senate of the Philippines; he observed inter alia that Ms. Sochua’s right to confront the witnesses against her had not been respected as the entire hearing was based on evidence from the prosecution only and that she was thus denied basic due process that must be accorded to an accused in a fair trial; moreover, the threat of disbarment of her lawyer, which forced him to withdraw from the case, violated her right to counsel of her choice and that, on the whole, the evidence presented was grossly inadequate to convict Mu Sochua and did not meet the universally accepted standard of proof beyond reasonable doubt; noting that the parliamentary authorities have rejected his conclusions stating that the evidence presented during the trial was not challenged and that Mu Sochua did not present any witnesses, that the Court respected its duty to find out the truth, that the alleged threat of the disbarment of her lawyer was not related to his being selected as counsel by Mu Sochua but to his violation of the Code of Ethics and that he apologized for those violations and that his withdrawal cannot be considered a denial of Mu Sochua’s right to counsel of her choice and that, generally, the court respected due process,
Bearing in mind that the Office of the United Nations High Commissioner for Human Rights in Cambodia issued a statement on 5 August 2009 in response to the guilty verdict in Mu Sochua’s case, in which it emphasized the need to uphold the constitutional right to freedom of expression in Cambodia and pointed out that under international law, freedom of expression is to be restricted only in exceptional cases, where clearly necessary and proportionate to the value that the restriction seeks to protect, and appealed to the Cambodian judiciary to take full account of constitutional and international standards when considering defamation cases; the Office also recalled that in July 2007 the Constitutional Court had directed all Cambodian courts to take into account international human rights standards, as contained in the treaties to which Cambodia was a party when considering such cases,
- Thanks the Cambodian delegation and the President of the National Assembly for the cooperation extended to the Committee and for the documents provided;
- Expresses deep concern at the sentencing of Mu Sochua for defamation on account of statements she made which clearly fall within the limits of her freedom of expression since she merely sought to defend her own reputation; is appalled and finds intolerable that a letter she sent to the Inter-Parliamentary Union was used as an argument in court to show her alleged intention to defame the Prime Minister; firmly states that parliamentarians are entitled to call upon the IPU and to seek its assistance, just as they are entitled to seek the assistance of any international organization; would have hoped that, as a member of the IPU, the National Assembly of Cambodia would defend this right to the best of its ability;
- Endorses the conclusions of the Committee’s trial observer as it cannot share the arguments put forward by the authorities to prove the fairness of the trial, and notes the following in particular: the judge, who is bound to seek the truth, has to examine arguments not only in favour of the prosecution but also in favour of defendants, whether or not defendants present such evidence, which the judge did not do in this case; Ms. Sochua did not enjoy her right to legal counsel of her choice whatever may have been the reasons for Mr. Kong Sam Onn’s withdrawal from her case; considers in this respect that it is difficult to accept the argument of the authorities that no link exists between the risk of his being disbarred from the Bar Association and his having taken on Mu Sochua’s defence;
- Expresses furthermore deep concern at the lifting of Ms. Mu Sochua’s parliamentary immunity on grounds that appear to be mere retaliation for her having dared to bring a lawsuit against the Prime Minister;
- Is therefore all the more alarmed at the manner in which immunity was lifted, although the procedure may have formally been in keeping with rules; stresses that with no serious examination of or debate on whether or not it is appropriate to lift immunity, parliamentary immunity fails to fulfil its purpose;
- Notes in this respect with deep concern the Prime Minister’s statements expressing a certainty that the Assembly would lift her immunity, and even threatening her with definitive expulsion from parliament; considers that such statements of the Head of Government may harm the independence and sovereignty of parliament;
- Firmly recalls that parliamentary immunity is designed to protect parliamentarians from possibly unfounded proceedings, thus safeguarding the independence and sovereignty of parliament as an institution; and that it must therefore be lifted in strict compliance with the law and in particular with due respect for the right of the parliamentarians concerned to defend themselves; urges the Cambodian parliament to amend its rules in such a way as to ensure that a thorough and transparent examination, involving both majority and opposition parliamentarians, of requests for the lifting of immunity are carried out and that parliamentarians concerned are given the opportunity to defend themselves;
- Observes with deep concern that the decisions such as those in question may have a dampening effect on the ability of members of parliament and, even more so, of citizens to criticize the conduct of government officials and hence may detract from democratic debate;
- Earnestly hopes that, in conformity with the directive issued by the Cambodian Constitutional Court, the Appeal Court will decide upon Mu Sochua’s case in accordance with the international human rights obligations which Cambodia is bound to respect and hence will ensure respect for the most core of democratic values, freedom of expression; requests the Secretary General to examine the possibility of sending an observer to the appeal court hearing;
- Requests the Secretary General to forward this resolution to the parliamentary authorities, to Ms. Sochua and to the Office of the United Nations High Commissioner for Human Rights (OHCHR) in Cambodia;
- Requests the Committee to continue examining this case and report to it at its next session, to be held on the occasion of the 122nd IPU Assembly (March-April 2010).
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