In January 2001 the Senate engaged itself in hot debate over the Khmer Rouge trial

bill. These debates generated optimism about the worth of this chamber and democracy

in Cambodia.

As the year was drawing to a close, three senators were punished for not toeing their

party's lines. They were expelled from their party, the Cambodian People's Party

(CPP), and from the Senate altogether.

These senators were exposed to more liberal political cultures during their stay

respectively in America (for two senators) and in Australia. They were simply doing

their duties as genuine parliamentarians as in any democracy. Their punishment has

generated anti-climactic sentiments about the development of democracy in Cambodia.

For some this punishment has affected the freedom of expression, for others it has

exposed the truer color of the CPP, a former communist party. Now the party's discipline

prevails over democracy and the CPP is the ruling party with a "strong man"

at its helm.

The decision taken by the CPP has called into question again the worth and relevancy

of the upper chamber of the Parliament, again because the legitimacy of its creation

was hotly questioned in the first place.

The Paris Peace Agreements of 1991 laid down a set of principles for a new Constitution

for Cambodia. Within the framework of those Agreements the United Nations Transitional

Authority in Cambodia organized the election of a Constituent Assembly in May 1993.

This Assembly expressed the will of the Cambodian people and adopted that New Constitution

which was duly promulgated by King Norodom Sihanouk on September 23, 1993.

At its origin that Constitution provided for a one-chamber Parliament called the

National Assembly which has all legislative powers. The creation of the Senate came

later as part of a package solution to a protracted deadlock over the formation of

a government following the elections of July, 1998. At a summit meeting at the Royal

Palace on November 12-13, the King, the leaders of the two major parties - the CPP

and FUNCINPEC - then invented it to create a position of president of the Senate

for CPP Chairman Chea Sim so that CPP Vice-Chaiman Hun Sen could have the premiership

and FUNCINPEC President Norodom Ranariddh the presidency of the National Assembly.

The current Government could then be formed and it was sworn in on 30 November of

that year.

For those who could think and had intellectual integrity at that time, a chamber

additional to the National Assembly was not needed and was to cost the nation a fortune

(0.8% of the national budget against 0.5% for the judiciary in fiscal year 2000).

Civil society was opposed to it and proposed less expensive alternatives. The top

rulers simply ignored all opinions different from theirs. They forgot altogether

the "will of the people" enshrined in the Constitution. The people were

then nothing to them and their concern was brushed aside, and soon the Constitution

was substantially amended to invent the Senate. The Constitutional Council whose

legitimacy of the creation had been questioned in the first place and whose members

were loyal followers of those top rulers complied with the wishes of their nominators

and put its stamp of constitutionality onto that amendment.

Technically, the creation of the Senate is indeed constitutional. However, when the

top rulers alone decided to create it as a political expediency to break the political

deadlock and not to meet the general needs of the nation or in response to its wishes,

and when this measure did not receive the support of public opinion, this upper chamber

has no full legitimacy.

An institution may lack legitimacy at the beginning, but it may be able to gain it

with its later performance. However, how could the Senate be expected to perform

when in practice political parties can defy Article 104 of the Constitution, arbitrarily

wave the parliamentary immunity of their members and punish them simply "because

opinions expressed during the exercise of [their] duties" deviate from the party

line?

Following such a punishment, there is a need to raise the constitutionality of all

decisions to expel MPs and Senators. How can a party defy parliamentary immunity

and punish its MPs and Senators when they cannot even be "prosecuted, detained

or arrested because of opinions expressed during the exercise of [their] duties"?

There is also a need to question the constitutionality of the provision in both the

parliamentary election law (art.120) and the commune administration law (art.16)

on the automatic loss of their seat in Parliament or in a commune council when MPs

or councillors lose their party membership through expulsion or resignation.

If, as has been the case so far, a political party can be above the law and can expel

its MPs, Senators and councilors, all duly elected by the people, then there is a

need to rethink the Parliament, its bicameralism, its representation and the electoral

system.

The National Assembly has not so far been acting as a proper legislature. None of

its members' bills has ever been adopted. It has adopted with little questioning

all the bills submitted by the Executive. Its rules of procedure whose constitutionality

needs to be verified have never been submitted to the Constitutional Council for

that purpose. It has been functioning on no firm constitutional basis.

The National Assembly has not provided any checks and balances vis-à-vis the

Government in the framework of separation of powers as stipulated in the Constitution.

This Constitution provided for, inter alia, one day per week for the questioning

of the Prime Minister or Ministers. The Prime Minister or Ministers comply with this

constitutional provision and come to answer in person or provide written answers

to the Assembly at their pleasure. Rarely has Government reported to the nation through

the National Assembly as expected of it in a parliamentary democracy.

The National Assembly in fact created the Government, yet in practice it has not

been able to call it in for questioning. The Assembly's creature has become more

like a Frankenstein threatening its creator instead.

If this part of the parliamentary system continues to function as has been so far,

the nation would be better off calling this lower chamber 'Governmental Assembly'

because of its compliance with the Government. But in order for this Assembly to

control the Government better, there is a need to change the present electoral system

which has so far institutionalized the party's control over its MPs to incorporate

the first-past-the-post system for a certain number of seats, say half of all seats,

to ensure the independence from parties for certain of those MPs from the single

seat constituencies from parties and better checks and balances in government.

What needs rethink most radically is the Senate. The composition of this upper chamber

for its transitional term is almost exactly the same as the composition of the lower

chamber. It has no legislative powers when in the end the National Assembly can override

it. It is merely a chamber of reflection, of second thought.

There is a need to empower the Senate so that it could become a guarantor of state

stability. This upper chamber should have legislative powers to enact major laws

and to set the principles of taxation while the lower chamber should concentrate

on laws needed for the implementation of the ruling party's or parties' political

programme (when and if these parties wish to abide by the rule of law).

The upper house's legislative responsibilities should encompass, for instance, penal

law, civil code, labor law, commercial law, human rights, safety, health, environment,

religion and customs. These laws are essential to the good functioning of any society.

This chamber should be called the Legislative Assembly.

Whom should this Legislative Assembly represent and what is its term?

The laws which are the responsibility of the Legislative Assembly are not subject

to frequent changes and should not be changed to suit political programmes of ruling

parties or the government of the day. They have full universality and apply across

the country and over time.

The representation of this Assembly should reflect this universality. Its members

should come from citizens with more maturity and experience. They should represent

all age groups, say, from 40 to 59 years old. Based on the 1998 census, there could

be so many representatives of the 40 age group, so many representatives of the 41

age group ... and so many of the 59 age group. These representatives should be in

the same age group they represent. Both men and women should have the number of their

representatives proportional to their numbers. These representatives should be citizens

who have made reputations in their respective fields or expertise. They should not

be members of any political party. The Legislative Assembly would then have famous

and well-known doctors, lawyers, diplomats, public administrators, businessmen, artists,

sportsmen, etc... as members. The sheer reputation of its members would add weight

and authority to the laws to be enacted. Such laws would be less costly to enforce

as they have their own authority already.

Once elected each member should serve until the age of 60. To begin with there is

an election of all representatives at the same time according to broader age groups,

for instance, 40-44, 45-49 ... 55-59 age groups. When the 59- year-old representatives

reach 60, they would retire, and an election of the representatives of the 40 age

group would be organized to replace them. So there should be representatives of all

age groups all the time in the Legislative Assembly.

With secure legislative powers, with secure tenure until retirement, and with reputation

behind them, those members of the Legislative Assembly could well resist any pressure

from political parties and from the government. This Assembly could become a strong

pillar, if not the pillar, of the Cambodian nation. Such an Assembly may be more

able to reduce the vicissitudes of Cambodian history, ensure long-term peace and

stability, and reduce the need for "strong men" to rule the country.

Indeed more needs to be looked at and worked out, and one should not undermine difficulties

and obstacles in convincing the ruling elite to accept the idea and in phasing in

this Legislative Assembly. But should the idea be accepted, there would not be a

lot of need to amend the existing Constitution and laws to accommodate it. Anyhow,

this relevant and democratic institution would be worth all these troubles and all

the expenses to run it.

- Dr Lao Mong Hay is Director of the Khmer Institute For Democracy.