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, and to the resolution adopted at its 189th session (October 2011),

Taking into account the information that members of the Cambodian delegation provided to the Committee on the Human Rights of Parliamentarians at the hearing held during the 126th IPU Assembly (April 2012) and of the communication from the Speaker of the National Assembly dated 5 January 2012,

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 to defend himself, Mr. Sam Rainsy was prosecuted and, in judgments handed down in January and September 2010, sentenced to 12 years in prison 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; on 20 September 2011, the Appeal Court reduced the prison sentence for the second charge from ten to seven years;

• The verdict whereby Mr. Sam Rainsy was found guilty of destroying public property was upheld in March 2011 by the Supreme Court, and the National Assembly stripped Mr. Sam Rainsy of his parliamentary mandate on 15 March 2011 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 forfeit their membership in the National Assembly,

Considering that, according to the members of the Cambodian delegation heard during the 126th IPU Assembly, Mr. Sam Rainsy should have raised his concerns regarding the border between Viet Nam and Cambodia in the National Assembly; recalling in this regard that, when opposition parliamentarians asked for a public parliamentary debate on the issue, the Government reportedly refused to take part, arguing that it had already provided all necessary explanations in the past,

Recalling 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 concern 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 the Sam Rainsy case in particular: "The allegation made by the Government was that Mr. Sam 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"; noting that the Special Rapporteur recommends inter alia that "Parliament should safeguard the right to freedom of expression of its own members and protect their parliamentary immunity",

1. Thanks the Speaker of the National Assembly and the members of the Cambodian delegation for their cooperation;

2. Considers, however, that they did not provide any new information to dispel its concerns that Mr. Sam Rainsy’s removal of temporary border markers was a political gesture, and that, consequently, the courts should never have been seized of the matter in the first place;

3. Reaffirms that, given the official acknowledgment, including by the Prime Minister, that there is no 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 temporarily planted wooden posts, and that the accusation that he divulged false information cannot be substantiated;

4. 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 may well impair the democratic process in Cambodia and further weaken the opposition;

5. Remains hopeful that Mr. Sam Rainsy will soon be rehabilitated, enabling 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. Again invites the National Assembly to debate the Special Rapporteur’s most recent 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 Committee to continue examining this case and to report to it at its next session, to be held during the 127th IPU Assembly (October 2012).

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* The delegation of Cambodia expressed its reservation regarding the resolution.

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