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Khmer Charters: A History of "Experimentation"

Khmer Charters: A History of "Experimentation"

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

is likely.

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."

Economic System

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

Rouge constitution.

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.


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