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

question.

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.