A/HRC/18/46 51. Article 80 of the Constitution guarantees parliamentary immunity to Members of Parliament to enable them to enjoy their freedom of speech so that the conduct of ministers and the activities and policies of the executive could be scrutinized and criticized. Article 4 of the Law on the Status of National Assembly Members divides parliamentary immunity into two categories: absolute immunity and relative immunity. Absolute immunity applies to the expression of opinions and idea during the adoption of the law by the National Assembly and relative immunity applies in relation to the protection of Members of Parliament from being prosecuted, detained or arrested. Only when parliamentary immunity has been lifted can a Member of Parliament be arrested, detained and subjected to criminal proceedings. 52. A request to remove the parliamentary immunity of any Member of Parliament who is alleged to have committed a crime should be submitted by the Minister of Justice to the President of the National Assembly. The National Assembly can remove the parliamentary immunity of a Member of Parliament by two-thirds majority vote of all members of the National Assembly. However, the Law on the Status of National Assembly Members does not provide an opportunity for the Member of Parliament in question to make a representation in his or her defence. Thus, a Member of Parliament could be stripped of his or her parliamentary immunity without having been given an opportunity for a fair hearing. The ruling party, with its two-thirds majority, has used these powers to lift the parliamentary immunity of Members of Parliament belonging to the opposition, without giving them an opportunity to defend their case. 53. Furthermore, some of the provisions of the Law on the Status of National Assembly Members seem to go beyond the freedom of speech guaranteed to members through the Constitution. Article 80 of the Constitution states that no Assembly member shall be prosecuted, detained or arrested because of opinions expressed while exercising their duties. However, article 5 of the Law on the Status of National Assembly Members narrows down protection by stating that if a Member of Parliament is found guilty of abusing an individual’s dignity, social customs, public order or national security – without defining what these acts constitute – parliamentary immunity could be lifted. Provisions such as this can be misused if not defined properly and not coupled with adequate safeguards. In this context, it should be noted that the National Assembly has not yet restored the parliamentary immunity of one of the members of the opposition even after the fine that the Member of Parliament had to pay, according to a court order for alleged defamation of the Prime Minister, had been taken from her salary as a Member of Parliament.4 There is no clarity in the Law on the Status of National Assembly on how immunity will be restored if the National Assembly member is neither sentenced to serve a prison term nor acquitted. 54. The Special Rapporteur is of the view that defamation and disinformation should be decriminalized altogether in Cambodia. The main opposition political party members and other members belonging to minority parties in the National Assembly have been marginalized. They cannot work freely when they face the threat of a criminal charge of defamation, disinformation or incitement when criticizing not only the programmes and policies of the Government but also the conduct of Ministers. Owing to this culture of fear, members of the general public or even civil society workers seem to hesitate to attend the public meetings of most of the opposition parties. Therefore, the Special Rapporteur is concerned about the narrowing of the political space in Cambodia, which is not conducive to promoting and strengthening a democratic culture in the country. 4 The serving Member of Parliament had announced in a press conference, held on 23 April 2009, that she would bring a defamation lawsuit against the Prime Minister for derogatory statements he had made about her. Her lawsuit against the Prime Minister was dismissed and the decision upheld on appeal, her parliamentary immunity was lifted and she was found guilty of defamation. 15