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The powers that rule

The powers that rule

120928_17
Cambodia’s Senate in session in April this year. Photograph supplied.

Is parliament the only branch of the Cambodian government endowed with legislative power?

Prior to the creation of the Senate, the Constitution pronounced on this with a very strong provision that read: “The National Assembly is the sole body endowed with the legislat-ive power. This power shall not be transferred to any other organ or individual” (former Article 90).

I call this “the non-delegation provision”. However, in order to accommodate the creation of the Senate in 1999 as another legislative house, the deletion of this strict non-delegation provision seemed necessary.

I think the original non-delegation provision could have easily been saved with a little bit of rewording such as this: “All legislative powers herein granted shall be vested in a National Assembly and Senate. This power shall not be transferred to any other organ or individual.”

With the non-delegation provision gone since 1999, it seems possible to delegate this power.

Except for two categories of subject matter – the exclusive list under the new Article 90 (taxation powers, the power to ratify treaties etc) and other subject matter specifically mentioned in various articles throughout the text (such as the new Article 135 on the Statute for Judges and Prosecutors) – all of these fall under the area of legislation.

Of course, the Constitution cannot practically mention in advance every law it’s possible to think of. Nor should everything be regulated by Parliament.

Let us look at two styles.

The French system allows the Executive to hold the pouvoir réglementaire autonome, under which it may regulate matters that are not reserved for Parliament (by virtue of Article 34 and Article 37 of the French Constitution).

Thus, the French Constitution offers a somewhat clear demarcation line between the legislative and the executive powers.

On the other hand, those favouring the rule of law would assume that the advantage should lean towards the legislature, and that no legislative power may be vested in any organ unless through principled delegation.

Such is the case of the US, which requires, as established by court precedents, that the enabling legislation contain some meaningful standards (the so-called “intelligible principle”) to direct the action of
the Executive.

The US Congress may not delegate its power too extensively so as to disregard its own responsibility as the maker of laws.

Now that Cambodia’s Constitut-ional orchestra is entering its 20th year of performance, it is time that its true conductor was found.

Which of the two types of conductor mentioned above is the more appealing? Law students can readily tell us that our laws usually delegate power to the Executive branch to fix further details.

If so, perhaps in the future, by establishing its own version of the intelligible principle, the Constitut-ional Council will formulate ways to review the enabling legislations.

Likewise, the duty will also fall on the shoulders of future administrative lawsuit judges to review the legality of the executive’s acts in discharging the delegated power.

Because courts deal with real cases every day, this Constitutional orchestra would probably find its frequent conductor in judges.

Dr Virak Prum is Dean of the Faculty of Law at the University of Puthisastra in Phnom Penh.

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