Parliamentary immunity: not as simple as it seems

[Published by the Cambodia Herald on 17 August 2015.]

Parliamentary immunity is in the news because of charges against Sam Rainsy Party Senator Hong Sok Hour. The extent of parliamentary immunity in Cambodia is sometimes unclear, at least in part because of what appear to be ambiguities in the Constitution.

Internationally, there is considerable variation in the immunities granted to legislators. In the United Kingdom and other common law countries, the general principle is that parliamentarians may not be prosecuted, arrested, sued or otherwise threatened for anything they say in parliament or how they vote on any issue. This is a democratic reform intended to prevent monarchs or presidents from pressuring parliamentarians to vote in any particular way.

But, strictly defined, parliamentary immunity does not protect legislators for any acts that fall outside their official duties. This has led, especially in the United States, to a number of court cases attempting to define the boundary between legislative duties and other, unprotected, actions.

For example, in 1994 a former US congressman was tried for allegedly defrauding the government by using an allowance intended for hiring a clerk to pay other employees for personal services. He argued that he could not be tried because hiring a clerk was a legislative activity and therefore immune. The court rejected this argument because the persons paid for the personal services were not connected with the legislative process.

On the other hand, US courts have also ruled that the clerk of the House of Representatives could not be sued by a House reporter for alleged discrimination because the latter’s duties were part of the legislative process. (This and the previous example are taken from http://legal-dictionary.thefreedictionary.com/Congressional+immunity.)

In France, legislators are granted additional protections. In addition to strictly defined parliamentary immunity for their legislative actions, they receive, in large part, what is called “inviolability”. This involves extensive restrictions on the ability to arrest or try them even for actions outside their parliamentary role.

There is a further area of uncertainty located somewhere between parliamentary immunity and inviolability. It exists because of the possibility that the executive might try to change the outcome of a parliamentary vote by preventing one or more parliamentarians from attending the relevant session.

The US Constitution deals with this area by stating that Senators and Members of Congress are “privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same”. But it makes clear that this is not a general exemption by specifying that it applies “in all Cases, except Treason, Felony and Breach of the Peace”.

Articles 80 and 104 of the Cambodian Constitution in their first paragraphs state that members of the National Assembly and Senate, respectively, have “parliamentary immunity”.

The next paragraphs go on to specify a strict definition of parliamentary immunity, saying that no member can be “prosecuted, arrested, kept in police custody or detained because of his/her opinions or of the votes expressed during the exercise of his/her functions” (from the unofficial translation by the Constitutional Council).

However, the third paragraphs of the Articles appear to grant a much broader inviolability, although without using the word. They say that, unless a member is caught in the act of committing a crime (in flagrante delicto), he/she cannot be prosecuted, arrested or held in custody except by a two-thirds vote of the National Assembly or Senate.

The wording of those Articles does not indicate any limitation on this inviolability like that of the US Constitution’s “except Treason, Felony and Breach of the Peace”, and Cambodian authorities’ actions have generally indicated that there is no such limitation. For instance, when several CNRP members who had been elected to the National Assembly were arrested following the violent demonstration at Freedom Park in July 2014, the authorities said that the arrestees did not have immunity because they had not taken their seats in the National Assembly – not because attending violent demonstrations is not a parliamentary duty.

If this practice is established as authoritative legally, it would grant Cambodian legislators a legal impunity far beyond international norms. Subject only to withdrawal of their immunity by a two-thirds vote, parliamentarians could, theoretically, be free to rob banks, murder fellow citizens or commit any other crime, as long as they were not caught in the act.

It is not conceivable that any Cambodian would consciously advocate such a situation. Perhaps pushing the boundaries of parliamentary immunity is not such a wise practice as some parliamentarians appear to think it is.

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