The seven opposition CNRP lawmakers charged last year with “leading an insurrection” could be arrested and imprisoned in the same way that opposition Senator Hong Sok Hour was arrested and imprisoned over the weekend, Justice Ministry spokesman Chin Malin said Tuesday.
On orders from Prime Minister Hun Sen, who was angered by a doctored diplomatic treaty the senator presented in a Facebook post, Mr. Sok Hour was charged on Sunday with forgery and incitement and sent to Phnom Penh’s Prey Sar prison despite his immunity as a senator.
Although the ruling CPP easily has the two-thirds majority in the Senate to remove Mr. Sok Hour’s immunity and legitimize the legal process, its senators met on Monday evening and decided it was not necessary to do so, citing an exception in the Constitution that allows arrests for crimes caught in “flagrante,” or in the act of being committed.
Mr. Malin said that the same legal reasoning could be applied to the seven CNRP members of the National Assembly whose “insurrection” charges over a violent Freedom Park protest on July 15 last year remain hanging over them.
“They share the similarities in that there is no need to seek the approval to remove the immunity,” Mr. Malin said. “However, if they want to remove the charges, they need to seek the three-quarters approval of the National Assembly.”
Besides requiring a two-thirds majority of the National Assembly —or Senate—to remove a lawmaker’s immunity, the Constitution allows either legislative body to seek a three-quarters majority to overrule the courts and remove a lawmaker’s charges.
Asked specifically whether authorities could arrest the seven charged CNRP lawmakers despite their immunity, which is protected by the CPP’s lack of a two-thirds majority in the National Assembly, Mr. Malin said they could.
“Yes, of course, it is permitted. It is the same for members of the Senate and National Assembly. For non-flagrant cases, they need to remove the immunity. For flagrant cases, they do not need to. It is not the two-thirds process,” he said.
“If they want to stop the prosecution, they must get the three-quarters to remove the charge,” Mr. Malin reiterated.
Article 80 of the Constitution—like Article 104, upon which the Senate based its decision on Mr. Sok Hour—provides an exception to immunity of National Assembly members when police catch them in the act of committing a crime.
“The accusation, arrest, or detention of an assembly member shall be made only with the permission of the National Assembly…except in case of flagrante delicto. In that case, the competent authority shall immediately report to the National Assembly or to the Standing Committee for decision,” it says.
Koul Panha, executive director of the Committee for Free and Fair Elections, said the CPP-controlled Senate’s decision not to exercise its power to strip Mr. Sok Hour’s immunity on Monday evening but to let him be imprisoned anyway was a clear attempt to set a new precedent.
“This is an unconstitutional act that creates a precedent that the members of the parliament have no immunity at all, because now they can arrest anyone without lifting their immunity. Without immunity, they have nothing,” Mr. Panha said.
“It will allow the executive to put the members of the National Assembly in jail, and there will be no reason to lift their immunity,” he said. “It is not only those seven lawmakers [who risk arrest], but there could be many more.”
Opposition leader Sam Rainsy said he believed the Justice Ministry’s interpretation of “flagrante delicto” exceptions was a perversion of a clause meant only to allow police to intervene when lawmakers are in the act of committing a crime.
“It is very far-fetched. It is wrong and it is a distortion of the spirit of immunity,” Mr. Rainsy said by telephone before boarding a flight to Melbourne for a trip with deputy opposition leader Kem Sokha to meet supporters in Australia.
However, Mr. Rainsy said he would not be surprised if such an interpretation of immunity was used by the government, and suggested that only by keeping up his good relations with Mr. Hun Sen could he prevent attacks on the opposition.
“Anything is possible in Cambodia, and that is why you have to address the source of the problem, and I am trying to defuse the source of the tension. We do not want to give any pretext to anybody to crack down on us,” he said.
Sok Sam Oeun, a prominent human rights lawyer, said no precedent had been set since the 1993 Constitution was promulgated to interpret what constitutes a “flagrante” offense.
“In our law, it is not very clear. It is up to the Senate to interpret it as they wish. If they commit a violent crime like killing, it might apply. They could interpret it as a flagrant case, even if the arrest was not on the spot, but soon after,” Mr. Sam Oeun said.
“In this case, it was not a violent crime,” he said of Mr. Sok Hour’s arrest. “It is only a document, so I believe it is not a flagrant case, and they have to ask to remove the immunity.”
Mr. Hun Sen himself has repeatedly threatened to have the CNRP’s seven lawmakers arrested, arguing publicly that the immunity held by the lawmakers was a moot point.
“The seven lawmakers will still be jailed because you received immunity after you were charged,” Mr. Hun Sen said in January.
“Please study the law. Your side knows the law and our side knows the law,” the prime minister said. “Those who are on bail are only out temporarily, so the trial must proceed.”