With elections over in Cambodia a new constitution will be written. As the consequence
of the compromises made to date, there appears to be a healthy political stability
in Cambodia. And that bodes well for the accomplishment of the task facing the Constituent
The newly elected Constituent Assembly has three months to accomplish the task; it
should be done by September 15, the planned date for inaugurating the new government.
When approved by a two-thirds majority, the new constitution will become Cambodia's
sixth. From the point of view of beginning the institutionalization of democracy
in Cambodia, the most important process now under-way is writing this new constitution.
The Paris Peace Agreements established basic principles for the Constitution. The
principles are based on undeniably liberal political values. According to Annex Five
of the Paris Peace Agreement, "the constitution will contain a declaration of
fundamental rights," and it mandates "that Cambodia will follow a system
of liberal democracy."
The annex is silent about the form of economic organization for Cambodia. Current
national and international trends indicate that more decentralization of the economy
Constitutions were written under Prince Sihanouk, Lon Nol, and Pol Pot. Hun Sen's
government wrote two, the first two years after the Vietnamese installed his government
and another after their withdrawal.
What is the prospect of achieving the principles outlined in the Paris Peace Accords?
A glance back at the earlier constitutions shows a remarkable diversity, in governmental
structure and economic system. All of the constitutions used the language of human
rights to a greater or lesser degree.
There is also a remarkable consistency in the degree to which the governments of
Cambodia have failed to live up to their constitutions.
Structure of the Government
Cambodia has "experimented" with many forms of government, Monarchical
(King Sihanouk), Republican (Lon Nol), radical socialist agrarian (Pol Pot) and Communist
(Hun Sen). If there is a feature common to all of these governments, it is the centralization
of power. The new constitution is intended by the international community to be informed
by principles of pluralism, but Michael Vickery, a Cambodian scholar, says that he
doesn't "think that there will be much resistance to the idea of an umbrella
party." In Cambodia, "they think that there is something wrong with the
kind of political competition that we have in the west," Vickery says.
The historic political problem is one of ends and means. Toward whose ends and by
what means will government power be bent?
The history of Cambodia, and the succession of governments it has endured, has been
characterized by competition for state power for factional benefits, rather than
for net social benefit. A real liberal constitution, if followed, will place limits
on the exercise of power by establishing a rule of law rather than personality, and
by institutionalizing accountability. Only then will there be a chance that state
power will be bent in directions benefiting Cambodia's citizenry.
The Sources of Cambodia's Constitutions
Cambodia has never had a constitution that can be said to be truly an indigenous
product. But, Cambodia's constitutions were not, in their entirety, imports either.
David A. Chandler writes that Cambodia's first Constitution (1947) "was modeled
closely on the Constitution of the Fourth Republic in France." In the Lon Nol
regime Premier Long Boret denied that the Lon Nol Constitution would be similar to
the French Constitution, it would be "a national product, not an imported one"
he said. But the Constitution of Lon Nol's Khmer Republic was intended to create
a strong executive, with a President modeled on the President in France and in the
United States, both Vickery and Chandler have argued.
Hun Sen's first constitution, Michael Vickery writes, was modeled on the 1979 Constitution
of the Socialist Republic of Vietnam (SRV), but there was "nothing like slavish
emulation." Pol Pot's Constitution was heavily influenced by Maoist ideology,
but Chandler quotes Khieu Samphan: the constitution was "not the result of any
research on foreigh documents, nor the fruit of research by scholars. In fact the
people - workers, peasants, and revolutionary army - wrote the constitution with
their own hands."
A collective economic regime was specified in the Democratic Kampuchea Constitution
of 1976. Under the DK, "the important general means of production are the collective
property of the people's state." Though private property was provided for, "properties
of everyday use," by all accounts it consisted in most cases of a single spoon.
The constitution further specified that Democratic Kampuchea would "practice
the system of collective transport and labor." Chandler writes that the DK constitution,
"in effect, abolished private property" and "family oriented agricultural
Hun Sen's first constitution was a startling change from its predecessor. It dictated
that personal possessions could not be confiscated, that residences were inviolable,
and that citizens had the right to enjoy the profits from their labor and to inherit.
The economy was divided into three sectors (state-run, collective, family run), and
the government was allocated the leading role in directing and managing it, even
to actively assisting and guiding the family economy. It stated that the "national
economy is under the direction of the state."
In the 1989 constitution, the economy was divided into five sectors (state, joined
state-private, collective, family, private), reducing the state's central role and
expanding opportunities for private efforts in the market. But the fact was, the
SOC and its predecessor never stood in the way of the ground level economy.
While the 1981 constitution dictated that foreign trade was the "monopoly of
the state," the 1989 constitution softenened this, dictating "foreign trade
is under state administration and management."
Cambodia Constitutions and Human Rights
All of Cambodia's constitutions have specified some rights which the citizenry had,
and which the government was constrained to protect. This was true of even the Khmer
Chandler noted in a lecture given in Phnom Penh on March 30 that Cambodia's 1947
draft constitution was historically unprecedented for Cambodia. The only previous
constraint on political power was the colonization of Cambodia. It sought to protect
the people from absolute power; it stipulated human rights, but they were "granted
to the people 'generously' by the monarch." Chandler noted that "this would
have perilous consequences," presumably because if the constitution and the
human rights it granted were seen as a gift from the King, it was one that could
be withdrawn. This is what in fact happened.
In the DK constitution, Cambodians were "guaranteed a living," there was
"equality among all Cambodian people," and full equality between men and
women. But Chandler said, it "guaranteed no human rights" and the ones
it dealt with "are not individual ones but those of the collectivity."
Hun Sen's constitution was the most specific about human rights, his 1989 constitution
more so than the 1981 version. But both of the Constitutions contained what Michael
Vickery has called a "joker," phraseology that allows the suspension of
specified human rights for a variety of reasons.
In the latest constitution, the claim is made that the State of Cambodia "recognizes
and respects human rights," Cambodians are "equal before the law, and "coercion
and physical abuse" of prisoners are "prohibited." "Confessions
resulting from brutal physical or mental coercion cannot be regarded as proof of
guilt." "The death penalty is abolished."
While it is true that the current constitution has the most clearly articulated set
of rights that Cambodia has had in any of its constitutions, there have been documented
cases of human rights abuses just the same. This indicates the importance of the
implementation of human rights protection, independent of their specification.
The Implementation of Cambodia's Constitutions
None of Cambodia's constitutions have in a strict sense been followed. They have
been held hostage to the external pressures of war or they have internally ignored.
While there is no doubt that the governments of Sihanouk, Lon Nol, Pol Pot and Hun
Sen have differed dramatically, and such differences have been embodied in their
constitutions, it is still true that with respect to the protection of the rights
of the governed in Cambodia, the implementation of these constitutions have in general
ignored or subordinated the rights of the ruled to the self-articulated interests
of the rulers.
Ron Pollard of the Human Rights Component of UNTAC said that the most important aspect
of the new constitution will be whether an independent judiciary is provided for.
The Paris Peace Accords stipulate that "an independent judiciary will be established,
empowered to enforce the rights provided under the constitution."
UNTAC One, the Human Rights Component, has prepared a Bill of Rights for Cambodia,
but they do not intend to impose it on the Constituent Assembly.
They choose to remain in an advisory role. Copies of the Bill of Rights have not
been requested by any of the members of the Assembly or political parties represented
there. But even if UNTACs version were accepted in its entirety, without an independent
judiciary, institutionalized separation of and limits on power, Cambodians may find
themselves again without protection for their fundamental rights, and a constitution
which, as so many in the past have been, a simple "decoration" of the state.