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Logo of Phnom Penh Post newspaper Phnom Penh Post - Comment : The King is more than a mere ceremonial figurehead

Comment : The King is more than a mere ceremonial figurehead

Comment : The King is more than a mere ceremonial figurehead

When talking about the status of our King in the power structure of the country one

would invariably hear the citation of the first sentence of Article 7 of the 1993

Constitution which says that "the King reigns but does not rule". The King

himself seems to concur. When pleaded to take action to correct any wrongdoing He

would ask the pleader to understand that He, the King, does not have powers, meaning

that he could do nothing about the case.

A perusal of the Constitution of 1993 would tell a different story. This article

contends that the King does have some powers. He is not just a mere ceremonial figurehead.

Whether He could exercise His powers or not would depend on His wisdom and courage,

on the creation and organization of the institutions and mechanisms provided for

in the Constitution through which He could exercise His powers and, above all, on

the observance of concerned constitutional provisions by those running these institutions

and mechanisms.

Actually, the King has a good number of constitutional responsibilities and also

a good number of powers to enable His Majesty to discharge these responsibilities.

To start off with His Majesty is the guarantor of the nation's independence, sovereignty

and territorial integrity (Art.8). For the discharge of this responsibility the Constitution

makes His Majesty the Supreme Commander of the Royal Cambodian Armed Forces (RCAF)

(Art.23) and Chairman of the Supreme Council of National Defence (Art.24-New). His

Majesty can declare war after both houses of the Parliament have so decided. Actually,

the RCAF Commander-in-Chief is responsible to the King, and if and when this Council

is created, the King could act through it to ensure the country's independence, sovereignty

and territorial integrity. The King could get this Council to address the on-going

problem of territorial encroachments by neighbouring countries.

The King is the guarantor of the independence of the judiciary and has the Supreme

Council of the Magistracy to help His Majesty discharge this responsibility (Art.

132-New). Actually, the Constitution makes His Majesty Chairman of this Council (Art.134-New),

and this Council itself has powers to discipline judges and public prosecutors. (Art.134-New).

Now that this Council already exists, the King could get it to act to ensure the

independence of the Judiciary and justice to His people.

The King is also the guarantor of the respect for the rights and freedoms of his

people (Art.8). His Majesty could discharge this responsibility through the courts

of law which have a duty to protect these rights and freedoms (Art.128-New). The

King could get these courts to offer this protection since all judges and public

prosecutors are placed under the jurisdiction of the Supreme Council of the Magistracy.

The King has a constitutional duty to ensure the regularity of the functioning of

public authorities (Art.9) so that they could serve His people. His Majesty could

discharge this duty through His advice to the Prime Minister and the Government at

their audiences with Him twice a month (Art.20) if and when the Prime Minister and

his Cabinet decide to observe this constitutional provision. He could also get public

authorities to deliver services to the public in an orderly and regular manner though

the National Congress which he chairs (Art.148-New).

This Congress is an institution of direct democracy whereby people would gather in

open air, in the form of an Athenian agora, once a year in December to hear government

reports and formulate various proposals to their rulers (Art.147-New). So far this

institution of direct democracy has not been created yet.

As regards legislation, the King has powers to get the Constitutional Council to

check its constitutionality before or after its promulgation by Him (Art.140-New

& 141 New). This Council has already been created, but, so far, the King has

not initiated on His own or has been requested to initiate such control of constitutionality

by the Constitutional Council.

The King has powers to grant partial or complete amnesty (Art.27). Although a law

must be enacted to determine the procedure for granting this amnesty (Art.90-New),

this law could not curb His amnesty powers lest it is unconstitutional. The original

idea behind these Royal amnesty powers was the assumption in the old days that judges

who represented kings could make mistakes and people could be wrongly condemned.

However, so far the King has not exercised on his own these traditional Royal powers

to help victims of such miscarriages of justice.

In the area of international relations, the King is the guarantor of the observance

of international treaties (Art.8). The Constitution stipulates that He ratifies these

treaties after both Houses of the Parliament have approved them (Art.26-New), but

it is silent about His powers and mechanisms to discharge this constitutional responsibility.

But His Majesty could use His line of communications with both Houses of the Parliament

(Art.18.New) to request them to get the Government to observe those treaties should

the latter fail to do so. His Majesty could advise the Prime Minister and the Government

on this issue at their audiences with Him.

Last but by no means least, is the protection which only the King has but no one

else does: His person is inviolable (Art.7). This special Royal privilege, which

in the old days rested on the assumption that Kings can do no wrong, is also a form

of power. At the moment there is no law which specifies this inviolability and provides

for sanctions such as a crime of lèse majesté against any breach of

it.

The enumeration of the King's responsibilities and powers to discharge these responsibilities

is not exhaustive, but one main feature that has come out is that the Constitution

is clear and specific about His responsibilities, but not so about His powers. However,

the King Himself, the Prime Minister, the President of the National Assembly, one

tenth of the members of this Lower House, the President of the Senate, one quarter

of the Senators, and the courts of law, all are entitled to get the Constitutional

Council to interpret the Constitution. If the King's powers are not so clear-cut

in the Constitution, a resort to this Council for interpretation could settle the

issue.

Apart from the resort to the Constitutional Council, the King has a blanket authority

over the Prime Minister and the other Members of the Cabinet, the President and the

other members of the National Assembly, and the President and the other Senators

through the oath they have all taken before him upon taking office (Annexes 5, 6

& 7 to the Constitution which have not so far been translated). He could remind

them of their oath when they have deviated from it.

So far the constitutional provisions pertaining to the King's responsibilities and

powers have not been fully observed. The Supreme Council of National Defence has

not been created yet. The problem of territorial encroachments by neighbouring countries

has not been addressed through this Council. Nor has the National Congress been formally

organized in conformity with the Constitution. The King and His people have been

deprived of this institution of direct democracy to get public authorities to react

to public opinion as expressed there.

The King's audience twice a month for the Prime Minister and the Government to

report to Him about the situation of the country has scarcely taken place. His Majesty

is deprived of a dialogue mechanism with His Prime Minister and Government. His powers

to ensure the regularity of public services through this mechanism have thus been

curtailed.

Furthermore, foreign and Cambodian experts and officials alike have marginalized

the responsibilities and powers of the King when they have scarcely conferred with

the King over their programmes of reform of the RCAF, the public administration,

and the legal and judicial system which lie under the purview of the King. Obviously

it would be too much to expect expert advice from Him, but His involvement albeit

at a distance may help ensure more progress in those reforms.

Unfortunately, the King has in person chaired only once the Supreme Council of the

Magistracy since its creation. Without His direct involvement this Council has failed

to help Him ensure the independence of the Judiciary. It can be added that the deprivation

of the King's powers to discharge His responsibilities because of the failure to

observe the concerned constitutional provisions on the one hand and to exercise these

powers on the other hand, have resulted in a lot of suffering for the Cambodian people.

One can only imagine the extent of the suffering inflicted upon the victims of injustice,

of impunity, of mal-administration, and of territorial encroachment by neigh-bouring

countries.

As demonstrated above, according to the 1993 Constitution the King is not just a

mere ceremonial figurehead needed simply to legitimize powers. He should not be treated

the way the Shogun Ieyasu Tokugawa in Tokugawa Japan in early 17th century had treated

the Emperor, needing him to legitimize his powers but depriving him of powers and

resources befitting his status and role (S.E. Finer, The History of Government, vol.III:

Empires and Monarchies and the Modern State (Oxford: Oxford University Press, 1999,

p.1101).

Perhaps it is about time we returned to the constitutional orthodoxy and rendered

unto the King what is the King's. We need to observe the Constitution and the sanctity

of our oath, and cooperate with the King in enforcing the constitutional provisions

pertaining to His responsibilities and powers. The concerned institutions and mechanisms

provided for in the Constitution through which He could exercise His powers should

now be created, and there should be no hindrances to the exercise of His rightful

powers. We need to confer with Him on issues under His purview. Besides, the King

himself should consider instituting a Privy Council to help Him exercise His powers

to discharge His responsibilities.

All these gestures would constitute a big step towards ensuring the proper functioning

of state organs, towards eliminating undue suffering, and towards building a constitutional

state and the rule of law.

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