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2008 Assessment

Cambodia: Integrity Indicators Scorecard

Cambodia : Integrity Scorecard Report > Sub-Category: Legislative Accountability
Indicators		Score
32	Can members of the legislature be held accountable for their actions?	0
33	Are there regulations governing conflicts of interest by members of the national legislature?	0
34	Can citizens access the asset disclosure records of members of the national legislature?	0
35	Can citizens access legislative processes and documents?	50

Indicator and sub-Indicator Details

Can members of the legislature be held accountable for their actions?

32a: In law, the judiciary can review laws passed by the legislature.

Score:

YES

Comments: Just to note, the Constitutional Council is not a court. It is a constitutional body outside of the judiciary. Per the constitution, it shall have nine members, to be selected among the dignitaries with a higher-education degree in law, administration, diplomacy or economics and who have considerable work experience. Three members shall be appointed by the King, three by the Assembly, and the three others by the Supreme Council of the Magistracy.

References: The Constitution, Articles 92, 136, 140 and 141 in particular, states that the Constitutional Council is the only organ that can review the laws adopted by the National Assembly and decide on their constitutionality or whether they are inconsistent with the principles of preserving national independence, sovereignty, territorial integrity and political unity. Internal rules of the National Assembly, Internal rules of the Senate and other organizational laws are required to be sent to this body for review prior to their promulgation. Other laws may also be submitted to the CC for review upon the request of the King, the Prime Minister, the National Assembly President, one tenth of the National Assembly members, the Senate President or one fourth of the members of Senate. Khmer citizens can also appeal against the constitutionality of a law.

The Law on the Organization and Functioning of the Constitutional Council, in particular Article 15 thereof, affirms the above constitutional provisions.

32b: In practice, when necessary, the judiciary reviews laws passed by the legislature.

Score:

100

Comments: The Constitutional Council, which has its own constitutional mandate, has indeed reviewed the organic laws as well as the internal regulations of the National Assembly (NA) and the senate and amendments thereto, before their promulgation, as stipulated under the Constitution and the Law on the Organization and Functioning of the Constitutional Council. Under the constitution and the aforementioned law, other laws already promulgated by the king may also be referred to the Constitutional Council for review at the initiative of the king, the prime minister, the senate and NA president, one tenth of the senate members, one tenth of the NA members or the courts. This, however, has rarely been done. To ensure that the laws conform to the spirit of the constitution, the government has been enjoined by the civil society to exercise more than its right to refer laws other than the organic laws and internal regulations adopted by the NA and the senate to the Constitutional Council. It has been said, however, that a more serious problem is the perceived lack of independence of the Constitutional Council.

References: Interview, Ms. Theary Seng, Executive Director, Center for Social Development, September 17, 2008, 11:30 a.m., restaurant.

Interview, Mr. Sok San Oeun, Executive Director, Cambodia Defenders Project (CDP), August 28, 2008, 11:00 a.m., CDP office.

Interview, Mr. Uch Kimy, Campaign Program Officer, The Cambodian Human Rights and Development Association (ADHOC), August 25, 2008, 8:45 a.m., ADHOC office.

Interview, Ms. Mu Sochua, Deputy Secretary General and Former National Assembly (NA) member, Sam Rainsy Party (SRP), August 27, 2008, 9:00 a.m., SRP Headquarters in Phnom Penh.

Interview, Mr. Yem Punharith, Secretary General, Human Rights Party (HRP), September 1, 2008, HRP Headquarters.

Interview, Anonymous, Judiciary, August 29, 2008, 5:30 p.m., restaurant.

Interview, Anonymous, Judiciary, September 1, 2008, 9:00 .a.m.

Interview, Anonymous, Judiciary, September 1, 2008, 10:00 .a.m.

Interview, Anonymous, Judiciary, September 1, 2008, 11:00 .a.m.

32c: In law, are members of the national legislature subject to criminal proceedings?

Score:

YES

Comments: Article 80 of the Constitution and the Law on the Members of the Parliament bestows the power to remove the immunity of the members of the parliament. As past events have shown, this power seemed to have been used in a discriminatory manner, targeting opposition members accused of defamation. Incidentally, it is also provided in the law that National Assembly members cannot be prosecuted, detained or arrested because of opinions expressed during the exercise of his or her duties.

In April 2008, the Phnom Penh court, through the Ministry of Justice, asked the National Assembly to suspend the immunity of opposition MP Sam Rainsy over a lawsuit filed by Foreign Affairs Minister Hor Namhong against said MP for alleged defamation and disinformation. Sam Rainsy claimed that the Minister was the chief of the Boeng Trabaek Prison during the Khmer Rouge Regime. Mr. Hor Namhong eventually dropped the lawsuit.

Note that in 2005, the parliamentary immunity of Sam Rainsy and two other National Assembly members were removed for allegedly defaming the National Assembly Chairman and the Prime Minister (Cheam Channy for organizing an illegal army and Sam Rainsy for defamation). The government was accused of plotting to kill its political rivals and Prince Ranariddh was accused of taking bribes to join forces with Hun Sen's Cambodian People's Party in forming the government. Chea Poch was accused of defamation. Sam Rainsy and Chea Poch eventually fled the country. Sam Rainsy was tried in absentia in December 2005. Cheam Channy was arrested in February and tried in August 2005 for creating an illegal armed force. His trial fell far short of international fair trial standards and took place in a military court, which has no jurisdiction over civilians. Channy was sentenced to seven years in prison. Amnesty International believes his charges have no basis.

Channy was released a year after by virtue of a pardon issued by King Norodom Sihamoni. The pardon also applied to Sam Rainsy. Chea Poch was also able to return to this seat.

References: Prosecutors Asked for Suspension of Sam Rainsy's Immunity June 18, 2008. [ LINK ]

Amnesty International USA Press Release February 6, 2006 Amnesty International Prisoner of Conscience Cheam Channy Released in Cambodia. Organization Calls for Immediate End to Politically Motivated Trial [ LINK ]

Asia Human Rights Commission Cambodia: The Situation of Human Rights in 2006. [ LINK ]

BBC News Sam Rainsy Appeals on Cambodia. February 4, 2005 [ LINK ]

References: The Constitution, with the following articles:

Article 31, which states that every Khmer citizen shall be equal before the law.

Article 39, which provides Khmer citizens the right to denounce, make complaints or file claims against any breach of the law by state and social organs or by members of such organs. committed during the course of their duties.

Article 80, which states that the accusation, arrest, or detention of an assembly member shall be made only with the permission of the National Assembly or by the Standing Committee of the National Assembly, except in case of flagrante delicto, and that the decision of the Standing Committee shall be submitted to the National Assembly for approval by a two-thirds majority vote of the assembly members.

The UNTAC Law, which invokes the principle of equality under the penal law, as particularly mentioned in Article 66 thereof; Articles 37, 38, 49 and 57, which cite embezzlement, corruption, forgery of public document and infringement of individual rights as felony acts with which elected officials, public officials, civil servants and security forces, acting in their capacity as such, can be charged. The New Criminal Procedure Code, passed in August 2007, in particularArticle 3 thereof, which states that criminal actions apply to all persons or legal entities, regardless of race, nationality, color, sex, language, creed, religion, political tendency, national origin, social status, resources or other situations.

The Law on the Members of the Parliament, specifically Articles 7 to 11 thereof, which also provide that the accusation, arrest, or detention of an assembly member shall be made only with the permission of the National Assembly, except in the case of flagrante delicto, and that the National Assembly can decide on the issue of parliamentary immunity by two-thirds vote of the assembly members.

Are there regulations governing conflicts of interest by members of the national legislature?

33a: In law, members of the national legislature are required to file an asset disclosure form.

Score:

YES

Comments: Under the June 16, 2005, Draft of the Anti-Corruption Law, in particular Articles 18, 32 and 53 thereof, which states that senior officials, which include members of the National Assembly and the Senate, are required to declare their assets and liabilities according to the procedure stated therein and refusal or false declaration of assets and liabilities are punishable by imprisonment and imposition of fines.

References: In law, no such requirement exists.

Draft Law on Anti-Corruption, June 16, 2005 version.

33b: In law, there are restrictions for national legislators entering the private sector after leaving the government.

Score:

YES

$Scoring Criteria :: YES: A YES score is earned if there are regulations restricting national legislators\' ability to take positions in the private sector after leaving government that would present a conflict of interest, including positions that directly seek to influence their former government colleagues. NO: A NO score is earned if no such restrictions exist.$

Comments: The June 16, 2005, draft of the Anti-Corruption Law requires for the imposition of such post-employment restriction. Article 16 of the said draft stipulates that the state shall establish policies and regulations seeking to prevent conflicts-of-interest by imposing restrictions on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure. Public officials, as defined in the draft, include persons holding legislative office.

References: In law, no such restrictions exist.

Draft Law on Anti-Corruption, June 16, 2005 version.

33c: In law, there are regulations governing gifts and hospitality offered to members of the national legislature.

Score:

YES

Comments: The June 16, 2005, draft of the Law on the Anti-Corruption defines benefits, which, when given to public officials encourages them to refrain from performing their duties, constitutes bribery, including gifts which, in turn, refers to any property or service that is given to or for the benefit of a person that is not consideration for an agreement and not a gift in accordance with custom or tradition.

References: In law, no such regulations exist.

Draft Law on Anti-Corruption, June 16, 2005 version.

33d: In law, there are requirements for the independent auditing of the asset disclosure forms of members of the national legislature.

Score:

YES

Comments:

References: In law, there are no such requirements.

33e: In practice, the regulations restricting post-government private sector employment for national legislators are effective.

Score:

100

Comments: There have been no such regulations, even in informal practice.

References: Interview, Ms. Mu Sochua, Deputy Secretary General and Former National Assembly (NA) member, Sam Rainsy Party (SRP), August 27, 2008, 9:00 a.m., SRP Headquarters in Phnom Penh.

Interview, Mr. Yem Punharith, Secretary General, Human Rights Party (HRP), September 1, 2008, 3:00 p.m., HRP Headquarters in Phnom Penh.

Interview, Mr. Phann Sambo, Steering Committee Member, Human Rights Party (HRP), September 1, 2008, 3:00 p.m., HRP Headquarters in Phnom Penh.

Interview, Mr. Im Francois, Head, Election and Parliamentary Unit, Center for Social Development, September 11, 2008, 8:30 a.m., CSD office.

33f: In practice, the regulations governing gifts and hospitality offered to national legislators are effective.

Score:

100

Comments: There are no such regulations, even in informal practice.

References: Interview, Ms. Mu Sochua, Deputy Secretary General and Former National Assembly (NA) member, Sam Rainsy Party (SRP), August 27, 2008, 9:00 a.m., SRP Headquarters in Phnom Penh.

Interview, Mr. Yem Punharith, Secretary General, Human Rights Party (HRP), September 1, 2008, 3:00 p.m., HRP Headquarters in Phnom Penh.

Interview, Mr. Phann Sambo, Steering Committee Member, Human Rights Party (HRP), September 1, 2008, 3:00 p.m., HRP Headquarters in Phnom Penh.

Interview, Mr. Im Francois, Head, Election and Parliamentary Unit, Center for Social Development, September 11, 2008, 8:30 a.m., CSD office.

33g: In practice, national legislative branch asset disclosures are audited.

Score:

100

Comments: There have been no such asset disclosures.

References: Interview, Ms. Mu Sochua, Deputy Secretary General and Former National Assembly (NA) member, Sam Rainsy Party (SRP), August 27, 2008, 9:00 a.m., SRP Headquarters in Phnom Penh.

Interview, Mr. Yem Punharith, Secretary General, Human Rights Party (HRP), September 1, 2008, 3:00 p.m., HRP Headquarters in Phnom Penh.

Interview, Mr. Phann Sambo, Steering Committee Member, Human Rights Party (HRP), September 1, 2008, 3:00 p.m., HRP Headquarters in Phnom Penh.

Interview, Mr. Im Francois, Head, Election and Parliamentary Unit, Center for Social Development, September 11, 2008, 8:30 a.m., CSD office.

Can citizens access the asset disclosure records of members of the national legislature?

34a: In law, citizens can access the asset disclosure records of members of the national legislature.

Score:

YES

Comments:

References: By law, there is no provision ensuring such access.

34b: In practice, citizens can access legislative asset disclosure records within a reasonable time period.

Score:

100

Comments: There have been no such disclosures. It has been expressed, however, that the Sam Rainsy Party president and parliamentarian have voluntarily disclosed assets before.

References: Interview, Ms. Mu Sochua, Deputy Secretary General and Former National Assembly (NA) member, Sam Rainsy Party (SRP), August 27, 2008, 9:00 a.m., SRP Headquarters in Phnom Penh.

Interview, Mr. Yem Punharith, Secretary General, Human Rights Party (HRP), September 1, 2008, 3:00 p.m., HRP Headquarters in Phnom Penh.

Interview, Mr. Phann Sambo, Steering Committee Member, Human Rights Party (HRP), September 1, 2008, 3:00 p.m., HRP Headquarters in Phnom Penh.

Interview, Mr. Im Francois, Head, Election and Parliamentary Unit, Center for Social Development, September 11, 2008, 8:30 a.m., CSD office.

34c: In practice, citizens can access legislative asset disclosure records at a reasonable cost.

Score:

100

Comments: There have been no such disclosures. It has been said, however, that the Sam Rainsy Party president and parliamentarian have voluntarily disclosed assets before.

References: Interview, Ms. Mu Sochua, Deputy Secretary General and Former National Assembly (NA) member, Sam Rainsy Party (SRP), August 27, 2008, 9:00 a.m., SRP Headquarters in Phnom Penh.

Interview, Mr. Yem Punharith, Secretary General, Human Rights Party (HRP), September 1, 2008, 3:00 p.m., HRP Headquarters in Phnom Penh.

Interview, Mr. Phann Sambo, Steering Committee Member, Human Rights Party (HRP), September 1, 2008, 3:00 p.m., HRP Headquarters in Phnom Penh.

Interview, Mr. Im Francois, Head, Election and Parliamentary Unit, Center for Social Development, September 11, 2008, 8:30 a.m., CSD office.

Can citizens access legislative processes and documents?

35a: In law, citizens can access records of legislative processes and documents.

Score:

YES

Comments:

References: The Constitution, with the following articles:

Article 31, which states that the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human rights, the Covenants and Conventions (Article 19 of the Universal Declaration on Human Rights and Article 19 of the ICCPR assure the right of everyone to seek, receive and impart information and ideas through any media).

Article 35, which provides that Khmer citizens of either sex shall have the right to participate actively in the political, economic, social and cultural life of the nation.

Article 41, which provides Khmer citizens the freedom of expression, press, publication and assembly law.

Article 88, which provides that the National Assembly sessions shall be held in public, except at the request of the Chairman or at least one-tenth of the National Assembly members or the King or the Prime Minister.

The Press Law, Article 19, which guarantees the right of the press to access information in government-held records, with several exceptions.

The National Archives Law which certifies the right of persons to use public archives for research and consultations, with exceptions.

The Internal Regulations of the National Assembly for the Third Mandate, in particular Article or Principle 18 thereof, which provides that the records and documents of the National Assembly can be disclosed to the public with the permission of the National Assembly President.

The Internal Regulations of the Senate, in particular Article 20 thereof, which provides that the minutes and other documents of the Senate can be disclosed to the public with the written approval of the Senate President.

35b: In practice, citizens can access records of legislative processes and documents within a reasonable time period.

Score:

100

Comments: Documents of the National Assembly and the Senate are extremely difficult to access. As mentioned before, even the parliamentary members themselves, specifically the opposition members, and ministry officials have difficulty accessing the documents that they need. Personal contact within the institution is needed if one wishes to get any result at all to a request for a document. It sometimes takes half a month or one month just to get initial feedback to one's request and such initial feedback basically just says that one has to wait more for his or her requested document or that the document is confidential or a state secret. The other alternative is to make unofficial payments to secure the needed document.

Even copies of the relatively new laws adopted by the National Assembly and promulgated by the king or draft laws under review and debate are very difficult to access. According to Article 93 of the Constitution, all laws promulgated by the king shall be published in the Official Journal and throughout the country, in accordance with the schedule for the effective date of the law, that is, ten days after signing in Phnom Penh, 20 days after signing throughout the country and after the promulgation date for urgent laws. This Official Journal, or Official Gazette, however, is not completely accessible to the ordinary citizen and its publication has been even stopped, allegedly due to lack of budget allocation. When one takes the initiative to search and request for a copy of the new law or a draft law, he or she normally encounters difficulty (even being told the request is annoyingly intrusive) unless he or she has good contacts or makes an unofficial payment.

Three key factors deterring free, non-discriminatory and affordable access to legislative records and government documents in general are the lack of specific legal and institutional infrastructure governing freedom of information in Cambodia, lack of financial resources, and lack of an organized system of file keeping.

Hearings of the National Assembly are closed to the general public and records or minutes of its meetings are not publicly available. Some groups or individuals may be given permission to watch the NA proceedings by securing an identification card with the General Secretariat. The process has been said to be complicated. Records of the legislative processes may be requested from the General Secretariat, but the process is difficult and unreasonably lengthy even with contact from within.

References: Interview, Mr. Tieng Sophorn, Advocacy Action Program Manager, Star Kampuchea, August 17, 2008, 8:45 a.m., Star Kampuchea's office.

Interview, Mr. Pok Leaksmy, Senior Program Officer, Mainstreaming Anti-Corruption for Equity Program, Pact Cambodia, August 19, 2008, 9:00 a.m., Pact Cambodia's office.

Interview, Ms. Thou Heng, Program Coordinator, Advocacy and Policy Institute (API), August 20, 2008, 3:00 p.m., API's office.

Interview, Mr. Moeun Chhean Nariddh, Director, Cambodia Institute for Media Studies, August 22, 2008, 2:30 p.m., Internews Office.

Interview, Mr. Phann Ana, Assistant Journalism Advisor, Internews, August 22, 2008, 2:30 p.m., Internews Office.

Interview, Anonymous, Media, August 22, 2008, 8:00 a.m., Phnom Penh Center.

Interview, Anonymous, Media, August 22, 2008, 10:00 a.m., Institution s office.

Interview, Anonymous, Executive, August 31, 2008, 10:00 a.m., residence.

Interview, Ms. Mu Sochua, Deputy Secretary General and Former National Assembly (NA) member, Sam Rainsy Party (SRP), August 27, 2008, 9:00 a.m., SRP Headquarters in Phnom Penh.

Interview, Mr. Yem Punharith, Secretary General, Human Rights Party (HRP), September 1, 2008, 3:00 p.m., HRP Headquarters in Phnom Penh.

Interview, Mr. Phann Sambo, Steering Committee Member, Human Rights Party (HRP), September 1, 2008, 3:00 p.m., HRP Headquarters in Phnom Penh.

Interview, Mr. Im Francois, Head, Election and Parliamentary Unit, Center for Social Development, September 11, 2008, 8:30 a.m., CSD office.

Interview, Mr. Peter Murphy, Senior Public Sector Management Specialist, World Bank, August 26, 2006, 9:00 a.m., World Bank Office.

35c: In practice, citizens can access records of legislative processes and documents at a reasonable cost.

Score:

100

Comments: Access to records of legislative processes and documents is extremely difficult. It has been expressed that unofficial payments are at times necessary to facilitate one's request.