The Governing Council of the Inter-Parliamentary Union,

Referring to the case of Mr. Sam Rainsy, Leader of the Opposition and a member of parliament at the time of the submission of the communication, as outlined in the report of the Committee on the Human Rights of Parliamentarians (CL/189/11(b)-R.1), and to the resolution adopted at its 188th session (April 2011),

Recalling the following information on file:

• Having had his parliamentary immunity lifted in a closed session by a show of hands and without being afforded the opportunity of defending himself, Opposition Leader Mr. Sam Rainsy was prosecuted and, in judgments handed down in January and September 2010, was sentenced to a total of 12 years’ imprisonment and a heavy fine for: (a) having pulled out border post #185 marking the Cambodian/Vietnamese border in a village in Svay Rieng province and inciting racial hatred; and (b) divulging false information by having published a map reportedly showing a false border with Viet Nam; that, owing to those verdicts, he may well be barred from standing in the 2013 elections by virtue of Article 34(2) of the Law on the Election of Members of the National Assembly, which stipulates that persons who are sentenced to imprisonment for a felony or misdemeanour by the courts and who have not been rehabilitated shall not be eligible to stand as candidates for election to the National Assembly;

• The verdict whereby Mr. Sam Rainsy was found guilty of destroying public property was upheld in March 2011 by the Supreme Court, and on 15 March 2011 the National Assembly stripped Mr. Sam Rainsy of his parliamentary mandate by virtue of Article 34 of the Law on the Election of Members of the National Assembly, which stipulates that members convicted at final instance of a crime and sentenced to imprisonment shall forfeit their membership in the National Assembly,

Recalling that no one disputes the fact that the process of demarcating the border between Viet Nam and Cambodia is under way, that border post #185 was a temporary wooden post and that the Government recognized it was not a real and legal border marker, which the Prime Minister himself confirmed in his response to a question from Sam Rainsy Party (SRP) parliamentarians on this matter, stating inter alia that "because the joint technical group from the two countries has not planted border post #185 yet, the border demarcation work, which is the work of the joint technical group after the planting of that post, has not started either"; and recalling further that there is at present no map recognized by Viet Nam and Cambodia as being official and binding,

Considering that, in his report of August 2011 to the United Nations Human Rights Council (A/HRC/18/46), the Special Rapporteur on the human rights situation in Cambodia expressed concerns at the restrictions imposed on freedom of expression in Cambodia and the use of the judiciary for political ends and had the following to say regarding Mr. Sam Rainsy’s case in particular: "The allegation made by the Government was that Mr. Rainsy had manipulated a map to show that Viet Nam had encroached on the territory of Cambodia. In any properly functioning democracy, such political matters should be debated in the parliament and become a matter of public debate rather than the subject of a criminal case before courts. Scrutinizing the activities of the Government and requiring the Government to respond to any criticisms of its policy decisions is one of the basic functions of the leaders of opposition parties and they should not be subjected to criminal proceedings for discharging their responsibilities in a peaceful manner"; and noting that he recommends inter alia that "Parliament should safeguard the right to freedom of expression of its own members and protect their parliamentary immunity",

1. Reaffirms that Mr. Sam Rainsy’s gesture of pulling out temporary border markers was a political gesture, and that, consequently, the courts should never have been seized to resolve a political matter, which rather should have given rise to a debate within parliament;

2. Also reaffirms that, given the official acknowledgment, including by the Prime Minister, that there is no such thing as a legal border post #185 and the absence of any official map since the border demarcation process is still under way, Mr. Sam Rainsy cannot possibly have committed a crime by pulling out wooden posts which were illegally driven in, and that the accusation of divulging false information cannot be substantiated;

3. Deeply regrets that the Prime Minister’s clear statement on the question of border post #185, has not as yet led to any initiatives with a view to settling this case, which indisputably may impair the democratic process in Cambodia and further weaken the opposition;

4. Deeply regrets also that the parliamentary authorities have ignored its considerations and concerns on a matter of such importance, including as regards its recommendations concerning parliamentary immunity;

5. Calls once again on the authorities, including Parliament, to take action with a view to Mr. Sam Rainsy’s rehabilitation so as to enable him to resume his rightful place as a member of the National Assembly and to stand as a candidate in the next parliamentary elections;

6. Invites the National Assembly to debate the Special Rapporteur’s latest report on the human rights situation in Cambodia, which deals extensively with parliament, and to ensure implementation of his recommendations;

7. Requests the Secretary General to inform the Prime Minister of Cambodia of the IPU’s considerations and concerns in this case and to convey this resolution to the parliamentary authorities and to the sources;

8. Requests the Committeeto continue examining this case and report to it at its next session, to be held during the 126th IPU Assembly (March/April 2012).

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