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Why a constitution?

Such is a simple question. Experience has shown that the most underprivileged populations are those who seek help from the constitution the most. Many people know that a constitution does two things: arranging powers among the highest institutions and recognising certain fundamental freedoms for the people. This is usually done by means of a single text which contains all the grand principles governing a free society. This sacred text ensures that government is banned from infringing on certain fundamental freedoms that had existed in the state of nature long before the birth of the modern state. Consequently, when a state takes away any of such freedoms, it shakes the foundation of the social contract formed with the people, a contract on which its legitimate power is founded. Understood in this way, the constitution is the means to preserve individual freedoms within an uncertain modern state. But why can’t we achieve this preservation through laws? What is so special about a constitution?

The first special characteristic of a constitution is that it is very difficult to amend its provisions. In Cambodia, currently, a two-thirds majority of the entire National Assembly must agree in order to pass a constitutional amendment. The reason for making any amendment so difficult to happen is that the constitution embraces a set of values so profound, so fundamental that a free society naturally desires to be governed by them across generations. Thus, when the 1993 constitution recognised the freedom of assembly, we held it self-evident that future Cambodian generations would certainly require and cherish such freedom. It would be unthinkable that a free people would abandon freedom of assembly. Enshrining it in the constitution, making it difficult to alter, was the only guarantee no future laws can infringe on this fundamental freedom. The constitution must be made strong enough to stand up to bad laws and strike them down. Which is why laws must conform to the constitution or they will be nullified.

The second reason that makes a constitution so special is that all of the most important matters are readily explained in a single guiding text, usually filling up just a few pages. Although the constitution often refers various matters to future laws, people can still be assured that such future laws cannot deviate from the path the constitution has set for them. The Constitutional Council exists for the very purpose of enforcing such guidance. Thus, when the council, in 1999, nullified a provision that wanted the minister of women’s affairs to be female, it was simply enforcing the meaning of the equal protection clause by which men and women must be treated in an equal manner.

Finally, besides being the guarantor and the guide, the constitution keeps the spirit of a nation alive throughout the ages. By way of interpretations, the meaning of a particular clause could evolve as the society evolves. Thus, in the US for example, the 14th Amendment of 1868 set out to guarantee equal protection for all Americans, but the US Supreme Court has had to reinterpret the meaning of this clause in a series of many cases over the course of a century until it finally said in the famous case Brown v Board of Education in 1954 that the equal protection clause must bluntly mean no discrimination among different races, especially between whites and blacks. By not being at the mercy of a parliament, timely interpretations ensure that the constitution can secure its long life to stand the repeated tests of time and temper, an ability laws generally lack.

When any of the three branches doesn’t seem to be living up to constitutional expectations, people have the right to demand action. Hypothetically, if one day a poor little girl from a far distant province, on bare feet, walks up to the minister of education and firmly asks why her district does not have a public junior high school to go to, she would indeed be telling the minister to give effect to her constitutional right to the minimum nine-year education as enshrined in Article 68. Truly, the answer to – why a constitution? – should become obvious through the application of the constitutional text itself. Therefore, let us all begin reading our constitution and using it to its fullest potential because, in the process, we will ultimately discover our own.

Dr Virak Prum received a PhD in international development from the University of Nagoya, Japan, in 2006.



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