O n the Constitution's second anniversary, Matthew Grainger reports on how
its ultimate watchdog has yet to begin working.
THE second anniversary of Cambodia's constitution and the re-throning of the King
limped into history on Sept 27 with little of the fanfare of last year's celebration.
Human Rights and democracy advocates are wearied by the government's determination
not to form a Constitutional Council.
The Council is the single most important entity of the "blueprint for progress"
- the Constitution. Its nine members - if and when they are ever chosen - will have
a nine year mandate.
It has the power of review of court rulings and National Assembly laws, making sure
they are constitutional.
"This is seen as a threatening set of people... independently-minded jurists
making constitutional decisions," said one Western lawyer. "And you can't
get rid of them for nine years."
"Even if CPP had the majority of members on the Council, just their ability
to review, debate and express doubt - even with the merest perception of dissent
- is threatening," he said.
Khmer Institute of Democracy director, Lao Mong Hay, said: "The key institute
to the rule of law is missing... I feel [the government] is dragging its feet for
Funcinpec secretary-general Prince Norodom Sirivudh told the Post: "There are
many matters on which we don't respect the Constitution... [the lack of a] Constitutional
Council is only one."
"If the Constitutional Council is strong, and the National Assembly is strong,
democracy is born," Prince Sirivudh said.
The Constitution was technically flawed, often refering vaguely to "laws"
that would presumably later be drafted to support the intent of the document, one
source said. Despite that "basically it said 'we've been through hell, death,
anarchy, a legal vacuum... this is our blueprint for the progress of the country',"
said another lawyer.
"It had all the core principles of free market, pluralism, human rights and
the separation of power. But without the Council, [the Constitution] can't work as
Another analyst said however, "I wouldn't expect [the Council] to be terribly
proactive, or subversive. There is no history of a Constitutional Council upsetting
decisions. A radical, progressive Council is unimaginable here."
King Norodom Sihanouk nominated his three members to the Council two years ago. They
are Nhiek Tioulong, Pung Peng Cheng and Chao Sen Kosal.
"I think the King thought it was going to happen quickly... he has been insistent
on the need for constitutionalism from the start," said one Western lawyer.
The Supreme Council of Magistracy - which itself just recently came into existence
(at least on paper) - has three nominations, as does the National Assembly.
Assembly nominations have been privately bandied about during the two year hiatus.
"The CPP's attitute [toward the Council] has been very smart. Number one, to
delay it; Number two, to pack it [with CPP members]," said another analyst.
The latest move - initiated by Justice Minister Chem Sgnuon, according to sources
- is to insist that two of the three Assembly members should be from the CPP.
"I have heard it claimed that there are not enough qualified people to become
Council members," Mong Hay said.
"But there are people around from outside the government... people with doctorate
and master degrees," he said.
"There is no real commitment to honor what the people decided," Mong Hay
Excuses that the law needed to establish the Council would take a long time were
dismissed by Western lawyers.
"The law could be written in a day. There is no mystery about it. There are
models in dozens of countries... and all the principles are already there [in the
Mong Hay said that the Press Law was unconstitutional, with its controversial and
undefined phrase about political instability. "There was good reason the King
refused to sign it."
He said he doubted the law could be enforced with "full authority".
"When laws do not have that full authority, the government has to use force
such as threats and intimidation to pressure defiant journalists," he said.
Other Western analysts agree. "There is no rule of law. You can't establish
rule of law unless it's possible to establish a review of law," said one.
"If the Constitution is not respected, then laws won't be respected; if laws
aren't respected, decrees won't be either; this goes on, down to people not respecting
the orders of policemen on the streets," he said. "The only reason people
will stop for a policeman is that they are worried about being shot in the back...
there is no respect for law.
"It's a long way from the Constitutional Council to the cop on the street, but
they are related... you build into the system a healthy respect for the law."
Analysts spoken to by the Post spoke of a six-month "honeymoon" period
of free debate and competing ideas among politicians after the Constitution was signed,
and a feeling that democratic institutions and the rule of law would evolve.
"The July 2 coup [attempt] changed all that, even though the system was already
starting to become rigid," said one Western source.
"Hun Sen and Ranariddh made a political deal, a blood pact, to protect each
other's interests," he said.
Power was centalized within their respective parties; party members were politically
threatened, he said.
Other sources spoke of the CPP's "dubious" commitment to the Constitution's
principles, and having had to be "dragged along" by Funcinpec so far. "They
could have been dragged along much further if Ranariddh had been a different character,
genuinely committed to the Constitution," said one.
"CPP would have drawn the line at the civil reforms of their police and military,
but a lot more reform could have been done," he said.
One Parliamentary source said: "We measure our victories now in terms of 'well,
that wasn't as bad a decision as it could have been'."
Sources spoke of some MPs - though fewer and fewer - still committed to the right
to reform. However, those sources say there did not seem to be that "same sense
Mong Hay agreed, saying that for many MPs, the formation of a Council was of "on
and off interest".
"This is not the first time in our history that government power holders have
tried avoiding the Constitution so they get their own way.
"They are trying to get a form of legitimacy for the measures they are taking...
individual MPs can do very little, they have their salaries and their privileges,
they cannot just resign."
However, Mong Hay agreed with others that progressive MPs and other leaders should
above all retain their positions, and work for gradual change.
"There's no point being so abrupt, then getting kicked out like Sam Rainsy,"
said one source.
Mong Hay said it was fair to say that only the Khmer educated and elite - especially
those involved in democracy and human rights freedoms - understood the meaning of
"Even well-trained lawyers who knew the Press Law was unconstitutional kept
their mouths shut," Mong Hay said.
"They betrayed their own intellectual intergrity, and that's serious for the
country," he said.
"If knowledgeable people don't speak up, who can?.. who can?"
The Constitution has been amended once, to allow National Assembly chairman Chea
Sim (CPP) to sign laws if the King is out of the country. Ranariddh is proposing
another amendment to allow for the death penalty.
"It's interesting that the King retains power of veto [while he is in the country].
It's unimaginable to Cambodians that any law could take effect without the King's
signature," said one lawyer.
He said that "in a way, the King is fulfilling [some of] the role of the Council.
This is having some short-term desirable effect. But - perhaps with a different sort
of character on the throne - this will not be a long-term desirable effect."
"It is very unfortunate that this [debate] is going to be seen as either pro-
or anti-government, when it's simply a debate about the cornerstone of the Constitution,"
"People will see this as Rainsy's supporters, because it brings in the biggest
gripes like Rainsy's ousting, the Press Law, and the BLDP split.
"It's going to be seen as very political, when in fact it's technical."