Cambodians face a political puzzle. What do you do if the democratic constitution
you hope for is being written by a process that is demonstrably undemocratic?
Some Cambodians are asking: "Since we have been denied any influence on the
drafting of the constitution, who will ensure that the one we get will be democratic?"
The Cambodian election was characterized by Akashi as "meeting minimally acceptable
standards of freeness and fairness." Perhaps the constitution will be a "minimally
democratic" one; but without participation there is no guarantee that Cambodia
will get even this.
Of course a "minimally democratic constitution" is impossible to define.
So is a democratic one. But an acceptable constitution is most likely to emerge from
a process that is itself democratic.
But what process is democratic? A democratic process is a participatory process.
The process by which the draft constitution is being produced is not participatory,
and therefore not democratic.
One Khmer organization that has been asking for participation is Ponleu Khmer, a
Coalition of Cambodian human rights and development non-governmental organizations.
In the "political space" that has been created in Cambodia under the UNTAC
tenure, non-government associations have proliferated ..like ..like ..newspapers!
Both are signs of a budding democracy, but will the constitution protect them? There
is nothing in the drafting process so far to give the Cambodian NGOs much hope.
One of the goals of Ponleu Khmer is to "study the drafts of the national Constitution
prepared by the Constituent Assembly and to publicize their contents". They
hope not only to educate the Cambodian people but also to solicit people's opinions
for submission to the Constituent Assembly.
Samdech Preah Maha Ghosananda heads Ponleu Khmer. His organization has met an so-far
insuperable obstacle: secrecy. Over a hundred members of the Constituent Assembly
are excluded by the internal rules of the Assembly from knowledge of the contents
of the draft, and so far have no public influence on its proposals. Along with their
elected representatives, the Cambodian people are in the dark. As one Assembly member
put it, "When the constituent assembly first met, it signed the secrecy rule.
On that day I saw the birth and death of democracy in Cambodia."
Ponleu Khmer sent a letter to both the new Cambodian government and to Mr. Akashi,
saying in part: "We have the right to ask all the elected representatives about
what they are going to include in the constitution. They should let us know openly
what their intentions are. The drawing up of the constitution is not a secret thing.
All citizens have the right to know about what will be written in the constitution.
The people have the right to oppose what they think is inappropriate or should not
be in the constitution."
The three page letter reflects the consensus and has the support of the organizations
that signed it, including Khemara, Licadho, Outreach, Vigilance, Adhoc, and other
Cambodian organizations like the Khmer Students and Intellectuals Organization.
One can say that these organizations represent the closest thing to a Cambodian grass-roots
movement, their collective concern includes human rights, women's rights, and what
patterns of governance will emerge with the new government. What the NGOs lack is
institutionalized and legitimate access to government decision makers. Denied access
now to the process that will produce a constitution, who will ensure the constitution
will protect them?
At the time of the writing of last week's article UNTAC had not responded to that
letter. But Mr. Akashi has since (and before the publication of the last issue of
this newspaper) written a letter to the Ponleu Khmer. It says in part: "I [Yasushi
Akashi] am ... confident that [the members of the drafting committee] remain open
to any further views which various NGOs and individuals may wish to express. In this
regard, I would urge your Coalition to continue to exercise its democratic right
to lobby the members of the Constituent Assembly and the political parties to which
they belong, on any matters of concern relating to the Constitution."
"It is expected that, as a popularly elected Assembly debating issues of public
concern, the Constituent Assembly will, as a general rule, conduct its proceedings
in public. This would enable members of the various groups, or any other member of
the public, to attend and observe such proceedings."
"Concerning the documents of the Assembly, it is as yet uncertain in what form
the Assembly will produce its records, and to what extent these shall be distributed.
Nor have any concrete proposals been made yet regarding the role which the media
might play in the process of drafting a new Constitution."
"It should be emphasized, however, that it is the responsibility and prerogative
of the Constituent Assembly, which represents the sovereign will of the people of
Cambodia, to elaborate and adopt a new Constitution. UNTAC remains ready to respond
in an appropriate, positive manner to any request which the Constituent Assembly
may make regarding support for this crucial task."
But it is with the exercise of the "responsibility and prerogative[s] of the
Constituent Assembly" that the members of Ponleu Khmer have problems.
Participation in the drafting of the constitution has thus far been limited to a
small number of people, perhaps less than twenty. Mr. Akashi has quite reasonably
suggested that the people of Cambodia lobby their assembly members. But if the assembly
has itself been side-lined by this country's power brokers, of what point is that?
While the members of Ponleu Khmer have been until now denied information, their representatives
are denied influence .
Accountability - to whom or to what should those having the prerogatives of power
be held accountable? Not to the Paris Peace Agreements, as Mr. Akashi seems to suggest.
Ponleu is asking: who represents our interests? Mr. Akashi has not answered this
The Paris Agreement is silent on the appropriate modes for the preparation of the
constitution and on who will participate. It only specifies the principles in light
of which the constitution is to be written." The Paris Agreements specify-loosely-the
what, not the how.
Mr. Akashi tells Ponleu Khmer, "I wish to assure you of UNTAC's determination
to ensure that the elaboration and adoption of a new Constitution for Cambodia is
carried out in a democratic manner in accordance with the Paris Agreements."
Since the Paris Agreements are silent on the organization for the writing of the
constitution, there is no regulation or standard to hold the Constituent Assembly
to, and therefore no demands to make of UNTAC. Thus Mr. Akashi's commitment "to
ensure ..." is quite empty.
The U.N. has a copy of the draft constitution, and it is being published in this
issue. What influence the U.N. chooses to exercise as a consequence of its review
of the constitution (a review it will not admit publicly that it is making) will
be quiet and unobtrusive, but like the work of the drafting committee, "out
of sight". Which means that its prerogatives, if it has any, will be exercised
without accountability - at least not to the Cambodian people.
With the informal release of the constitution a debate may start. There are two formal
steps still to be taken. First, Sihanouk will look at the constitution, and then
it will come to a vote in the national assembly. Whether either step will include
real participation is still an open question.
Sihanouk's role is potentially a large one, except for the fact that the draft constitution
is now unofficially in the public domain. This may tie his hands to a degree. If
there were an articulated consensus on the acceptability of the constitution by those
so far excluded from its production, there is no way to make that known to the Prince
except, perhaps, through demonstrations.
But in Prince Sihanouk's deliberations and decisions, to whom will he be accountable,
who will be allowed to participate?
There should be debate in the National Assembly. Prolonged and divisive debate will
be damaging to Cambodia, but a lack of debate will establish a precedent that will
be difficult later to over-turn.
The voting on the Constitution should be secret. Voting in the constituent assembly
on the small number of matters brought to its attention has so far been unanimous
and public, "just like under communism," as one member of the assembly
said at the time. If the voting on the constitution is not secret, and verified to
be secret, the process of the acceptance of the constitution can not be democratic.
The best achievable constitution will not be able to confront all problems that
are sure to arise later, but it can specify democratic processes by which they can
be confronted and solved.
Democracy will emerge in Cambodia from the practice of government, but only if that
practice is participatory.
The importance of participation at this early stage is not just that an acceptable
constitution will be more likely to emerge. But as Cambodia faces a future filled
with problems it must learn to harness the energies and the ideas of all of its people.
Participatory democracy is the only way. Starting today is not too early.