CCHR PRESS RELEASE, Phnom Penh - 30 March 2011
CCHR calls for clarification of legal basis for government refusal to restore Mu Sochua’s parliamentary immunity
The Cambodian Center for Human Rights (“CCHR”) calls on the government to clarify the legal basis for its refusal to restore Mu Sochua’s parliamentary immunity. In the opinion of CCHR, there is no legal justification for the government’s position with regard to the parliamentary immunity of Mu Sochua. In the absence of clear provisions expressly allowing for the refusal to restore parliamentary immunity to a member of the National Assembly who has been convicted of a crime but not sentenced to a term of imprisonment, CCHR calls on the government to restore Mu Sochua’s immunity with immediate effect.
Mu Sochua was stripped of her parliamentary immunity on 22 June 2009 thus clearing the way for defamation charges to be leveled against her by Prime Minister Hun Sen. She was convicted of defamation by the Phnom Penh Municipal Court on 4 August 2009 and sentenced to pay a fine and compensation of 16.5 million riel ($4,4084US), a verdict that was upheld by the Appeal Court on 28 October 2009 and the Supreme Court on 2 June 2010. The fine and compensation was docked from Mu Sochua’s National Assembly wages and paid in full by November 2010. Cheam Yeap, a senior lawmaker for the Cambodian People’s Party, has stated that Mu Sochua’ s immunity would be restored in November 2011, a year after completion of her punishment.
Article 14 of the Law on the Status of Members of the National Assembly provides that a National Assembly member who is convicted of a crime and sentenced to a jail term loses his/her membership of the National Assembly and the rights and privileges that go with membership, while Article 16 provides for the automatic restoration of immunity and privileges to a National Assembly member who is acquitted. Article 15 provides that a convicted person has his/her parliamentary immunity restored upon pardon by His Majesty the King. The case of Mu Sochua therefore falls into a lacuna as the law is silent on cases where the National Assembly member is neither acquitted nor convicted to serve a jail term but is convicted and sentenced to pay a fine and not pardoned by His Majesty the King.
The position of the government, as stated by Cheam Yeap, is in line with a 28 January 2011 letter to the National Assembly from Long Phol, a secretary of state at the Ministry of Justice, that was leaked to The Phnom Penh Post (See ‘Sochua in legal limbo, 24 February 2011). The letter reportedly states that there are two ways for Mu Sochua to have her parliamentary immunity restored: by lodging a request with the Appeal Court a year after her punishment is completed or waiting for the immunity to be restored automatically, five years after the completion of her punishment. This position appears to be based upon the conditions for judicial rehabilitation and rehabilitation by law set out in the Code of Criminal Procedure and, in the opinion of CCHR, is not relevant to the case of Mu Sochua.
Article 34 on the Law on the Election of Members of the National Assembly sets out the categories of persons who cannot stand for election to the National Assembly, this includes persons who have been convicted to serve a jail term and who have not been rehabilitated. As Mu Sochua was not sentenced to a term of imprisonment she does not require rehabilitation to stand for election so it can only be assumed that she does not require rehabilitation to resume in her capacity as a parliamentarian during the current session with all the rights and privileges, including parliamentary immunity, that membership carries.
Parliamentary immunity exists as a safeguard to the right to freedom of expression of members of the National Assembly. Limitations and restrictions on the right to freedom of expression – such as the removal of parliamentary immunity – must be interpreted narrowly. CCHR calls on the government to clarify the legal basis for its position with regard to the parliamentary immunity of National Assembly members who are convicted of a crime but who are not sentenced to a term in jail. In the absence of an express provision expressly justifying the refusal of the government to restore parliamentary immunity in such a case, parliamentary immunity should be restored to Mu Sochua with immediate effect.
For more information please contact Ou Virak on +855 (0) 12 404 051 or via e-mail at ouvirak@cchrcambodia.org
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AH HUN SEN AH KBORT JEAT KAGN JAEH YOUN
AH HUN SEN AH KBORT JEAT KAGN JAEH YOUN
AH HUN SEN AH KBORT JEAT KAGN JAEH YOUN
AH HUN SEN AH KBORT JEAT KAGN JAEH YOUN
AH HUN SEN AH KBORT JEAT KAGN JAEH YOUN
AH HUN SEN AH KBORT JEAT KAGN JAEH YOUN
AH HUN SEN AH KBORT JEAT KAGN JAEH YOUN
AH HUN SEN AH KBORT JEAT KAGN JAEH YOUN
AH HUN SEN AH KBORT JEAT KAGN JAEH YOUN
AH HUN SEN AH KBORT JEAT KAGN JAEH YOUN
Kon Kmeng Naek Srae
The turn of event in SRP internal wrangling surrounding the dramatic resignation and spectacular expulsion of MP Mao Monivan has moved in phenomenal pace that even the most keen and over-zealous observers had trouble keeping up with the chain of event. His expulsion has sent shiver down the spines of other would-be vocal and outspoken critics of the party leadership. It has sent shockwave across the political spectrum in Cambodia. His only crime was to make open criticism of the party’s kingmakers: party’s spokesman Yim Sovan and the party strongman Eng Chhay Eang.
The SRP’s expulsion of Mao Monivan for publicly speaking out against the party’s kingmakers and against the politics of patronage, nepotism and cronyism goes against the principle of democracy, the spirit of openness and pluralism. It shows the SRP’s hypocrisy and its intolerance of divergent views. After attacking Hun Sen’s dictatorship and autocratic style of rule for the last 15 years, the SRP should look at itself in the mirror and ask: are we any different from Mr. Hun Sen and the ruling CPP?
The SRP has preached and campaigned for democracy and free speech for the last 15 years, since its inception and foundation. To show its principles and democratic values and that it is a genuine democratic party, the SRP must practice what it had preached for the last 15 years. To expel someone from the party for their outspokenness against the party’s nepotism, cronyism and autocratic style of rule has shown the true colours of the SRP that it is dictatorial, intolerant and has never practiced what it had preached all along. Mao Monivan’s expulsion has also shown that the SRP is suppressing internal and self-criticism. Mao Monivan’s outspokenness and his criticism of the party’s nepotism, cronyism and autocratic style of rule is part of his democratic rights under the SRP’s statute which aimed at bringing and holding the party leadership to account for their actions and shortcomings. The SRP’s action in expelling Mao Monivan will undoubtedly be seen as dictatorial in nature and puts its credibility and status as a democratic party and champion of democracy on the line. The SRP’s ongoing squabbling and internal wrangling shows that the party is not working to advance democracy in Cambodia, not working for the interests of the Khmer nation or its people, but indulging in personal interests over national interests and the interests of democracy in Cambodia.
It is basic rights to be vocal in a democratic and open society, and Mao Monivan has used his basic rights to right the wrongs of the party leadership. If politicians, who are public figures, and to a certain extent, public property, can’t handle the truth and that basic rights, then they do not deserve to politicians and public figures.
In a true democratic party, Mao Monivan’s action in speaking out against the two kingmakers, Yim Sovan and Eng Chhay Eang, do not warrant his sacking and expulsion. The first actions would to try to address his concerns and the first measures against him are warnings followed by disciplinary actions if he continues with his outspokenness. A swift expulsion that has been seen taken against him can only be described as draconian in nature and dictatorial in style.
The Chain of Event
Mao Monivan’s dramatic resignation as an MP and his spectacular expulsion stemmed from a disagreement over his reshuffling as the SRP president of the populous Kampong Cham provincial branch to a smaller province of Kampot. But it is largely from the disagreement over the MP mid-term rotation and the replacement of current MPs with candidates next on the 2008 candidate list that trigger a war of attrition. This formula of MP mid-term rotation has been agreed and approved by the party’s Steering Committee before the 2008 election. According to Mao Monivan, he resigned as an MP on his own volition because he wanted to keep his promise and to honour the agreement as well as to set an example in order to make way for the MPs in waiting to be sworn in. According to him, other MPs had broken their promises and dishonoured the agreements and refused to vacate the seats for the MPs in waiting. This disagreement had led him to launch a scathing public attack on the two kingmakers, who in turn took a swift action by expelling him in dramatic fashion.
Reshuffling is democratic and a good idea provided that it is done fairly and democratically. According to leaked reports, it was not done democratically and fairly at all. Not all MPs will be replaced with new candidates, only some MPs will. Party spokesman Yim Sovan, his wife Ke Sovannaroth who is the party secretary general, Eng Chhay Eang and his brother-in-law Kuoy Bunroeun do not have to vacate their seats for the new candidates. To add insults to injury, Mao Monivan was kicked out as president of the party branch to make way for Eng Chhay Eang’s brother-in-law, Kuoy Bunroeun, to take over. This is clear nepotism and cronyism.
However, MP rotation is a bad idea from the start. It is a recipe for internal division and internal power struggle. Mao Monivan’s expulsion from the SRP and his subsequent defection to HRP will not be the last. The MPs in waiting, who had petitioned the party and its president Sam Rainsy in 2010 to ask them to honour the agreement and who had been snubbed by the current MPs’ backflip, will surely rise up in revolt to show their discontent of the postponement of the MP rotation agreement. More internal wrangling and bickering are forthcoming and more defections to other parties, either to the ruling CPP or the HRP, are highly anticipated.
There have been smear campaigns to demonise him as the SRP traitor and a spy for the ruling CPP during and after his expulsion from the SRP. In one of his so-called attacks on the SRP leadership, Mao Monivan had called for a stoppage and cessation of a culture of labelling, smearing and vilification of the party members who dare to speak out as being traitors and spies.
The conduct of the HRP in effecting Mao Monivan’s defection and on the process of orchestrating other defections from the SRP have not and will not help the ongoing SRP-HRP merger and the unification talks. It will, to a lager or lesser extent, cause further mistrusts to the already mistrustful and too factionalised dealings during the unification talks. Under no circumstances should the HRP effect or orchestrate the defections from the SRP to the HRP or vice versa as both parties are working with the same goals to dislodge Mr. Hun Sen and his CPP from power. To orchestrate defections from each other is a political suicide because they are killing each other off before they do it to their nemesis, the CPP. If they are to have any chances of defeating the CPP in the elections at all, they must work as one and cannot afford to fight among themselves. The HRP’s conduct in effecting and orchestrating defections from the SRP will cause a chain reaction from the SRP who would seek to retaliate by effecting and orchestrating defections from the HRP. A tit for tat will follow and this will lead to a tuck of war between these two so-called democratic parties that can only lead to the complete destruction and annihilation of both. If this scenario is to have occurred and fathomed, and if the defection of Mao Moinvan is a premonition of that scenario, it will cause irreparable electoral damages in the eyes of the Cambodian voters and, to a certain extent, also in the eyes of their financial backers.
In conclusion, the resignation of Mao Monivan as an MP and his spectacular expulsion from the SRP is a premonition of the forthcoming self-destruction of the SRP. More internal discontent and wrangling are anticipated as the MPs in waiting will show their anger and dissatisfaction over the indefinite postponement of the MP mid-term rotation. And with the absence of the party president, Mr. Sam Rainsy, the wranglers cannot look to someone for mediation and conciliation. A protracted internal wrangling and bickering will cause the SRP to weakness or even to self-destruction. And if the SRP is to earn the trust and the respect of the Cambodian voters, it must be seen as democratic in nature and more tolerant of divergent views and dissenting voices. It must also practises what it had preached: democracy and openness. The SRP must bear in mind the words of the UN Envoy on Human Rights in Cambodia, Prof. Surya Subedi, that “criticism is not a crime”.
Sam Sary
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