The Anti-Sam Rainsy Law

Sunday, July 20, 2014

CNRP Should Not Invoke Parliamentary Immunity



[An edited version published in The Phnom Penh Post, 18 July 2014]


CNRP Should Not Invoke Parliamentary Immunity

Phnom Penh, 17 July 2014

I read Immunity Moves to the Fore published in the Phnom Penh post on 17 July 2014 with great interest and would like to respond to a few basic misunderstandings among the public reflected in the article. 

The issue is: when does the parliamentary immunity attach?

The answer is really simple and clear based on the parliamentary immunity’s internal logic and the Constitution.

Simply, the privilege is not absolute for a parliamentarian and attaches only to “opinions expressed in the exercise of his/her duties” (Art. 80).  It follows then that this partial privilege assumes the existence of a legitimate National Assembly.

The Cambodian People Party-established National Assembly is prima facie unconstitutional.  

How is the National Assembly formed?  Simply, the formation of the National Assembly is a process that must satisfy four conditions: (i) the election results produced at least 120 members; (ii) these 120 MPs-elect convened the initial session (iii) at the invitation and presence of the King, and (iv) they took an oath before assuming official functions.

The Cambodian National Rescue Party deems this CPP-established Parliament unconstitutional.  Therefore, consistency and coherency require that the CNRP forgo the claim to parliamentary immunity.

Legal and political considerations also require that the CNRP forgo the privilege.

Particularly, the detained MPs-elect should not invoke this privilege for the following reasons. 

First, invoking it will not make any difference to the Kafkaesque legal proceeding, at best; it will work against the CNRP in its political negotiation, at worst.

Legally, the charges against them of insurrection and incitement are baseless, the proceeding overtly political and riddled with irregularities, and thus they have no need to invoke this immunity even if it has force.  To invoke it is to give inadvertent legitimacy, however slight, to the trumped-up charges.

Politically, invoking it will only undermine the CNRP’s boycott of the CPP-established Parliament.  It will create further confusion for it and the public, make it fall prey to this CPP set up, and weaken its hands in future negotiations.

Second and to the contrary, it is to CNRP’s advantage not to rely on the parliamentary immunity.  In doing so, it clears one smokescreen to the risible, politically-motivated charges.  This is where the focus is and it should be kept here, without any distraction of immunity talk.  The legal case is groundless: let it stay clearly so without obfuscation of other side entanglements.

And force the authority to deal with their nakedness—the serious and laughable charges in the political theatre, in plain view for all to see and ridicule.  After all, the emperor has no clothes.
Related, in not invoking their parliamentary immunity, the falsely accused CNRP elected MPs help to strengthen the position of other common defendants who have been wrongly, politically charged who are not elected MPs with the possibility of immunity.

__________________________
Theary C. Seng, Juris Doctor

Founding President, CIVICUS: Center for Cambodian Civic Education

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