I write in response to yesterday’s Phnom Penh Post article "Rainsy’s Reasoning Questioned".
My position as an American-trained lawyer and Cambodian civil society leader aligns with that of Sam Rainsy’s.
Like him, I am at once alarmed and bemused by the Cambodian People’s Party’s audacity and facility in violating clear provisions of the Constitution, the “supreme law of the land”.
It would be outright hilarious if not for the possible acceptance of fait accompli (or, in CPP idiom, “the rice has been cooked”) based on the false-but-residual perception of CPP’s invincibility.
I notice that some Cambodians genuinely believe the law to be synonymous with justice, and equate it with being “official” and “the rice has been cooked” fail accompli mentality.
Let me categorically disabuse this thinking:
First, the law is manmade and open to error. The law can be, and here is often, used as a weapon against justice, where “For my friends, whatever they want; for my enemies, the law”. There exists manifestly “unjust law”, but we do not say, “unjust justice”.
Second, what appears to be “official” or fait accompli is in reality subject to change if it manifestly violates the “supreme law of the land” and proves insupportable by the democratic process in a changing populous environment of the Cambodia Spring where citizens are the new fourth estate.
Both my observations address a misunderstanding and misinterpretation of statutes. An “expert” may have an opinion, but it must pass the “laugh” or absurdity test.
Basically, any interpretation of a written statute or legislation looks at the letter and spirit of the law.
Proper legal interpretation starts with the plain language of the statute to discover its original intent. That is to say, we discover the original intent of the law by looking at the words of the statute and apply their usual and ordinary meanings.
With the issue at hand, the Cambodian Constitution expressly, unambiguously, states: “The National Assembly consists of at least 120 members” (Art. 76).
Here, the presence of only 68 highly contested members from only one party simply fails to satisfy Article 76.
If, after looking at the language or “letter” of the Constitution, the meaning of the statute remains unclear, we divine the intent of the law by looking at the history, process and other sources. Generally, we disregard any interpretation that would create an absurd result which the original drafters and lawmakers did not intend.
Or, what one of my law professors posits: “Does it pass the laugh test?”
With the present political impasse, the issue is whether the sole presence of the CPP satisfy the Constitutional intent of “a multi-party liberal democratic regime guaranteeing human rights and the respect of law” (Preamble, Art. 51) of the Paris Peace Agreements whereby the international community pour an unprecedented US$2.4 billion and 24,000 UN berets into this democratic process?
The answer is an unequivocal, resounding NO!
We can call the current National Assembly and the government whatever else, but let us not be dogmatically, hard-headedly wrong in calling it “legitimate”, “legal” or “constitutional”. They are far from any such thing.
And no monarch’s presence or expert opinion can make them otherwise.
Where a statute and case law conflict, it is generally presumed that the statute takes precedence over case law. The body responsible for interpreting the Constitution, aptly named the Constitutional Council, has already ruled in an unambiguous decision (case law) on the issue of National Assembly formation, in a similar situation of political impasse in 2003: “This means that there shall be at least 120 deputies to be able to form the National Assembly at every legislature … a necessary condition for the formation of a National Assembly but not for its functioning” (Constitutional Council, 22 July 2003 decision).
Thus, not only does the ruling of the highest court in the land not conflict with the “supreme law of the land”, but both Constitution provisions and the Constitutional Council’s decision are in sync in expressly ruling against the current CPP-established National Assembly and the CPP-established Government.
The law is a servant of justice, and thus must serve the will and intent of “we, the Cambodian people”, the heart of the Constitution, National Assembly, and government in a “liberal, multi-party democracy”.
It is true that no one or few elected representatives can hijack the establishment process by failing without cause to show up at the inaugural oath-swearing first session.
But here, in light of the totality of circumstances of the election season of widespread fraud, the CPP’s repeatedly refusal to an independent joint commission and its rush unilaterally to expedite the process of establishing the National Assembly and government:
Can we say that 55 CNRP members of a 120-mandated National Assembly not have cause?
That the CNRP who also claimed victory not represent “We, the People of Cambodia”?
That, because the CPP rushed the process of “officialdom” via its controlled National Election Committee, it’s fait accompli, without review or contest, thus “constitutional”?
The National Assembly is prima facie unconstitutional; the government is prima facie unconstitutional.
Theary C Seng
CIVICUS: Center for Cambodian Civic Education