CAMBODIA
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CASE N° CMBD/47 - MU SOCHUA
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Resolution adopted unanimously by the IPU Governing Council at its 188th session
(Panama, 20 April 2011)
The Governing Council of the Inter-Parliamentary Union,
Referring to the case of Ms. Mu Sochua, an opposition member of the National Assembly of Cambodia, as outlined in the report of the Committee on the Human Rights of Parliamentarians (CL/188/13(b)-R.1), and to the resolution adopted at its 187th session (October 2010),
Taking into account the information and observations which the Cambodian delegation to the 124th IPU Assembly provided to the Committee at the session it held during the Assembly; also taking into account information provided by the sources on 27 January and 12 April 2011,
Recalling the following facts: Ms. Mu Sochua’s public announcement that she would bring a defamation lawsuit against Prime Minister Hun Sen for a speech he made in April 2009 referring to her in a derogatory and insulting manner resulted in the Prime Minister’s filing a defamation lawsuit against her; while her defamation lawsuit against the Prime Minister was quickly dismissed, the Prime Minister’s lawsuit proceeded; in June 2009, the National Assembly decided to lift her parliamentary immunity in a closed session by a show of hands, without having given Ms. Mu Sochua an opportunity to be heard; in August 2009, the Phnom Penh Municipal Court found her guilty, mainly because of a letter she had written on the matter to the IPU and the Global Fund for Women, and sentenced her to a heavy fine, which verdict was, in June 2010, upheld at final instance by the Supreme Court; the judgment failed to establish the existence of the evidence constituting the offence of defamation, namely imputation of fact, bad faith and damage to the honour or reputation of the complainant, the Prime Minister in this case; Ms. Mu Sochua stated that she would not pay the fine, in which case, according to Cambodian law, she would have had to serve a prison term; however, it was decided that the fine would be deducted from her MP’s salary,
Considering that by November 2010 the fine had been paid off in full, but that her parliamentary immunity has not been restored; noting that the following information was submitted to the Committee on this matter:
- According to an article in the Phnom Penh Post of 12 January 2011, the Chairperson of the National Assembly’s Banking and Finance Committee said that parliament was willing to restore her immunity, but that procedure required an official request from the court; he stated that as soon as the court made a request to parliament the Assembly would convene to restore her immunity, which would be possible without a vote; according to another article (Phnom Penh Post, 26 January 2011), the Justice Minister affirmed that the parliament had first to send a letter to the Justice Ministry; the Director of the Cambodian Defenders Project was of the view that the Ministry of Justice had to write to the National Assembly since it had made the initial request to remove Ms. Mu Sochua’s immunity; a statement by the Prime Minister affirming that “if you exit by any way, you must enter by the same way” was also mentioned;
- In response to a petition of the Sam Rainsy Party (SRP) to the National Assembly to restore Ms. Mu Sochua’s immunity, the National Assembly stated in a letter of 12 April 2011 that, by virtue of Article 535 of the Penal Code, Ms. Mu Sochua has to wait one year before submitting an application for rehabilitation to the Appeal Court; should no application be submitted, her immunity would be restored automatically after five years,
Considering that, at the hearing held with the Committee, the leader of the Cambodian delegation confirmed this and stated the following: Ms. Mu Sochua has to wait one year before applying for rehabilitation, and that, if she does not apply, her immunity would be restored automatically after five years; Article 535 applies to each and every Cambodian citizen and consequently also to members of parliament; Ms. Mu Sochua is at present not eligible so long as she has not been rehabilitated; the National Assembly respects the Constitution, the Standing Orders and the Statute of Deputies, as well as the Criminal Code; while the National Assembly does indeed lift parliamentary immunity, the Assembly must apply the law; rehabilitation is governed by the Criminal Code and, during the period in question, Ms. Mu Sochua must not commit another crime; however, she is fully exercising her parliamentary mandate, participates in debates and criticizes the Government, and no member of parliament has ever been punished for expressing his or her opinions within the Parliament; moreover, Ms. Mu Sochua’s case is the first of its kind in the history of the National Assembly,
Considering the following: Article 14 of the Law on the Status of Members of the National Assembly stipulates that a member who is convicted of a crime and sentenced to jail loses his/her membership of the National Assembly and the rights and privileges pertaining thereto; Article 16 provides for the automatic restoration of immunity and privileges to a Member in the event of acquittal; Article 15 provides that a convicted person has immunity restored upon being granted a pardon by the King of Cambodia; Article 34 of the Electoral Law sets out the categories of persons who cannot stand for election to the National Assembly, which includes persons who have been convicted to a jail term and have not been rehabilitated,
Bearing in mind that United Nations human rights bodies and mechanisms have expressed concern about the independence of the judiciary in Cambodia and that, most recently, the United Nations Special Rapporteur on the situation of human rights in Cambodia, in his report to the United Nations Human Rights Council of 16 September 2010* identified freedom of expression as a major cause for concern, along with the numerous challenges faced by the judiciary, expressed concern about the narrowing of political space, and recommended that defamation and disinformation be decriminalized altogether,
Mindful that Article 31 of the Constitution of Cambodia stipulates that the rights and freedoms of citizens include the “human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the human rights covenants and conventions and those on women’s and children’s rights; that, moreover, Articles 41, 39, 31 and 45 of the Constitution respectively guarantee freedom of expression, the right of Khmer citizens to denounce public officials for breaches of the law committed while performing their duties, and equality before the law, and prohibits discrimination against women, and that Article 46 explicitly prohibits obscenity against women,
- Thanks the Cambodian delegation for its cooperation and for the information provided;
- Notes that the question of the restoration of Ms. Mu Sochua’s parliamentary immunity has given rise to different views as to how it should be restored until finally a provision regarding rehabilitation in the Penal Code was relied upon, and resulted not only in attributing responsibility for the restoration of immunity to the judiciary, but apparently also in debarring Ms. Mu Sochua from standing in elections, possibly for a five-year period;
- Is appalled therefore that Ms. Mu Sochua was not only sentenced on account of having exercised her freedom of speech and defended her honour and reputation, but now faces an additional punishment since she must wait at least one year to have her immunity restored, and will be ineligible for a period of at least one year, although she has committed no offence or crime punishable with imprisonment, has paid the fine and has thus a clean criminal record;
- Fails to understand how a provision in the Criminal Code regarding rehabilitation can be invoked to settle the issue of restoration of parliamentary immunity, since the question of rehabilitation does not arise in this case; stresses, moreover, that by virtue of Article 34 of the Election Law Ms. Mu Sochua does not require rehabilitation to stand for election and therefore cannot be debarred from standing in elections;
- Recalls that in parliamentary traditions following the French immunity model, as is the case in Cambodia, members of parliament recover their immunity automatically once the fine has been paid or the sentence served and that, failing any specific provision to the contrary, the National Assembly should restore Ms. Mu Sochua’s immunity without any further delay;
- Reaffirms the serious concerns it has expressed earlier about the defamation proceedings brought against her by the Prime Minister, and earnestly hopes that the parliamentary authorities will take action to ensure that cases such as this one, where a letter to the IPU was used to convict a member of parliament who had merely exercised her right to freedom of expression, do not recur;
- Urges the parliamentary authorities also to take action to amend the procedure for the lifting of parliamentary immunity in such a way as to ensure respect for the rights of the parliamentarians concerned to be heard in an open session, with a decision taken by secret ballot, so that immunity can serve its primary aim of safeguarding the independence of parliament by shielding its members from proceedings which may be politically motivated;
- Reiterates its call on the Cambodian authorities to heed the recommendations made by the Special Rapporteur on the situation of human rights in Cambodia; invites the Parliament of Cambodia once again to debate his report in parliament and to take the necessary measures to ensure implementation of his recommendations;
- Requests the Secretary General to convey this resolution to the authorities and to the sources;
- Requests the Committee to continue examining this case and report to it at its next session, to be held on the occasion of the 125th IPU Assembly (October 2011).
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