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Hold on to the Constitution

‘The sufferings of the people make kings suffer more than their own sufferings.” This profound statement came from the most revered leader Cambodia has ever known: King Jayavarman VII. His power and wisdom were said to have no equal. But what made him even more respectable was due to another attribute of his which everyone must marvel at: love for the people. Love, pure and humble. None of us alive today could fully comprehend his principles of leadership but few would deny the fact that under his reign, in spite of his debatable origins, Jayavarman VII brought to the Kingdom perhaps the highest level of prosperity and status as an Empire.

If a man of debatable origins could lead his country in the finest manner, why can’t men of self-proclaimed abilities today replicate his success? First, our Constitution solemnly ordains that members of the legislative and executive branches take an oath to defend the interests of the nation. Their oath, which they take before the King, includes a sentence by which they swear to never exploit national interests for the gains of their families or their groups. Have they been living up to this Constitutional obligation?

We should always remember the Constitution is the highest political link between the leaders and the led, a social contract that, on the one hand, gives powers to the state machinery but that, more importantly, clearly reserves a set of fundamental rights and freedoms to the people, rights and freedoms which no acts of the legislature or the executive can infringe upon. Just like any contract, a breach by one party can enable the other party to terminate the contract. If leaders decide to break essential parts of the Constitution by infringing upon the rights and freedoms of the people, the people may choose to revoke their support for the leaders. This is a natural consequence and, in fact, was the reason why the most important liberal document, called Déclaration des Droits de l’Homme et du Citoyen of 1789, declared that “in any society where there is no guarantee for human rights . . . there is no Constitution”.

A detail from Portrait of Niccolò Machiavelli by Santi di Tito painted in the mid-1500s
A detail from Portrait of Niccolò Machiavelli by Santi di Tito painted in the mid-1500s. No leader dedicated to the concept of democracy would take the politician’s thoughts on power to heart. Wiki Commons

Secondly, an ordinary citizen may ask: “If a law is so unjust, do the citizens have obligation to obey?” Two famous French thinkers have provided some guidance with regard to the relationship between state and law. Léon Duguit explained that the sentiment between right and wrong led to the creation of the droit objectif, which was different from the droit naturel in that an objective law would need to evolve as the society evolves. In other words, leaders are not free to enact laws for their benefit but may only enact laws that respond to the societal demands. Georges Burdeau went further, asserting that political power and law must be in accord with each other at all times. Laws would therefore need to protect and defend the social interests or else they would, unless there is a compelling justification, lose any legal force.

In reality, politicians are not interested in theories that they view as diminishing their powers. They would instead find joy in the realist tradition of political thought such as one expounded by Machiavelli when this Italian thinker notoriously wrote that a leader need not keep his word when keeping it is to his disadvantage and that it would be better to be feared than loved. But these two recommendations were meant to give counsel to a young leader of Florence some 500 years ago. No liberally inspired leader would want to associate themselves with Machiavelli’s thoughts on power unless they are solely interested in short-lived victories. Of course, there were no civil society organisations (CSOs) in Machiavelli’s time, otherwise even he would have to recognise the role of CSOs in keeping political power in checks.

Realising the prominent role CSOs play in the electoral process in a democratic society, the United Nations recently adopted a resolution at its 68th session in December 2013 to reiterate the role of civil society and the importance of its active engagement in the promotion of democratisation, and invites member states to facilitate the full participation of civil society in electoral processes.

Unfortunately, members of the National Assembly look to defy this resolution. If so, there will hardly be a free election.

Wisdom and power are and always will be two important attributes many leaders think they have. But these two are not in and of themselves sufficient. Being wise and powerful could generate abundant ideas on how to lead and, when necessary, how to silence dissidents but this very act is like a home pigeon, it always returns home. Therefore, if the preamble to our Constitution can serve as any guide when it stipulates that, “Awakened, we must preserve the Angkor civilisation . . . guarantee human rights”, politicians would do well to try to replicate the Angkor King Jayavarman VII’s civilised love for the people and be true in their pursuit of justice-based protection for human rights and freedoms for the many. Want it or not, no laws can defy the Constitution.

Preap Kol is the executive director of Transparency International Cambodia.



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