A constitutional dispute may be brewing in Cambodia, as long-time opposition leader Sam Rainsy is losing his parliamentary immunity at the request of the Ministry of Justice. During the 2008 election campaign, Sam made remarks about the ruling Cambodia Peoples Party (CPP) that were deemed to constitute defamation. He then refused to pay the fine of roughly US $2500. Sam claims, with some textual support, that the parliament alone can remove his immunity, but this should not be a significant barrier given CPP dominance.
Parliamentary immunity is very common feature of constitutional design. Most constitutions today, including that of Cambodia, provide for qualified immunity for legislators from detention and from criminal prosecution. Far less common, however, is immunity from civil liability. Even in common law systems which traditionally provide for immunity for statements made in parliament, statements made during election campaigns are not subject to the same protection. In Canada in 2006 for example, now-Prime Minister Stephen Harper denounced the then-ruling Liberal Party on the floor of the House of Commons, stating that the government ran “a massive corruption ring using organized crime.” Parliamentary immunity prevented the Liberals from taking any legal action against Harper, though they threatened to do so if he repeated his allegation during the campaign.
The Cambodian case (as well as the more well-known case of Singapore) illustrates how dominant ruling parties can use civil liability to intimidate and even bankrupt the opposition, restricting political competition. Constitutional designers concerned with ensuring vigorous political competition ought to pay some attention to civil as well as criminal immunity. One example is the Constitution of Belize (2002), whose Article 74 provides that “no civil or criminal proceedings may be instituted against any member of either House for words spoken before, or written in a report to, either House or a committee thereof.” To be sure, such a provision would not save Sam Rainsy; but given the dominance of Hun Sen’s CPP, little would.
Comments