The night before violence broke out at Freedom Park on Tuesday, Interior Ministry spokesman Khieu Sopheak took pains to assert that opposition lawmakers-elect, who have not taken their seats at the National Assembly in protest, do not have parliamentary immunity and could, therefore, have the law “imposed with force” against them.

Now, with five Cambodia National Rescue Party lawmakers-elect in custody, charged with serious offences, the issue of whether they have immunity is being put to the test.

Mu Sochua, one of those charged, yesterday cited her immunity in calling the detention “unconstitutional”.

CNRP deputy president Kem Sokha said that if the ruling party deems the current National Assembly legitimate, then it’s a double standard to not grant all elected assembly members immunity. He also said that before arresting or detaining lawmakers with immunity, two-thirds of parliamentary approval is needed.

Political analyst Kem Ley agreed: “It is contradicting what [the CPP] said before”.

The CNRP has long argued the assembly is illegitimate because only 68 ruling party lawmakers were sworn in despite the Constitution saying the assembly “shall comprise at least 120 members”.

But numerous analysts and lawyers have questioned that reasoning, arguing that by being elected, lawmakers become official “members” of the assembly, thereby satisfying the requirement, though they cannot commence their duties until they take their oaths.

A top lawyer from a local firm who requested anonymity said yesterday that because the constitution states that “members” of the assembly enjoy immunity, the CNRP should also have it.

“In my reading of Article 80 of the constitution, I believe that the lawmakers-elect should have their parliamentary immunity even though they have not sworn in, because literally they are members of the parliament,” he said.

But a Cambodian constitutional law expert at a respected local university, who also declined to be named, disagreed. Opposition lawmakers-elect would have to be sworn in to “confirm their validity”.

“In short, an elected member is not immediately an MP, not until provision of Article 82 of the constitution and Provision 2 and 3 of the internal rules of the National Assembly are observed,” he said.

The internal provisions involve elected candidates being declared as “full-rights MPs” by the Assembly president at the first meeting of every parliamentary session and having their names publicly posted to “determine the validity”.

Article 82 says that after opening, the National Assembly “shall declare the validity of each Member’s mandate”, with members having to take an oath.