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Constitutional justification missing

Prom Nheanvichit (centre), a member of the Constitutional Council of Cambodia
Prom Nheanvichit (centre), a member of the Constitutional Council of Cambodia, speaks to representatives of political parties, NGOs and Cambodian National Election Committee (NEC) officers during a verification of election results meeting at the NEC office in Phnom Penh on August 25, 2013. AFP

Constitutional justification missing

If foreign legal experts were to read the Cambodian Constitution, they would instantly fall in love with it. That’s because this founding document is home to numerous fundamental human rights and freedoms, all readily available in one package, which can easily impress foreigners and democracy advocates. In the US, even a right as fundamental as equal protection had no place in the original federal Constitution but had to wait until the 14th amendment in 1868, which finally states that “no State shall . . . deny to any person within its jurisdiction the equal protection of the laws”. Even with this amendment, it took almost 100 years before the US Supreme Court began sanctioning state actions found in violation of the Constitution.

In Cambodia, the final arbiter in saying what the Constitution means is the Constitutional Council. Since its inception, the council has decided over various issues. Perhaps its best known decision was one issued on May 28, 1999, which found certain provisions in the proposed Law on the Organization and Functioning of the Ministry of Women’s Affairs to be unconstitutional as, by requiring the minister to forever be a female, those provisions were violating the gender-blind equal protection clause enshrined in both Article 31 and Article 45 of the Constitution. Although this ministerial post has de facto been conveniently held by a female, we can take pride in the council’s decision, which enforced this particular fundamental right.

Within the equal protection context, there has been live discussion about whether certain provisions in the Law on the Election of Members of the National Assembly (LEMNA) would violate at least Article 31 by treating civil society organisations (CSOs) differently from other groups in society, such as the business community for instance. LEMNA, which was recently found constitutional by the council, restricts CSOs from, among other things, performing their traditional duties during the electoral campaign. Since the body of constitutional theories in Cambodia is slowly emerging, we could liberally learn from a comparative study.

American constitutional lawyers have devised a clear framework for analysing any fundamental right. Four successive questions are usually asked as to whether such a fundamental right exists, whether there is an infringement, whether the government has a sufficient justification, and finally, which level of scrutiny would be most appropriate.

The fact that equal protection is a fundamental right in Cambodia is well established both by Article 31 and by the council’s decision vis-à-vis the Ministry of Women’s Affairs. But does treating CSOs differently constitute an infringement?

Following the American way, there would be an infringement if there is a direct and substantial interference with the said right. Such interference could happen either on the face of the law or through the impact of the law even if the law looks facially neutral.

LEMNA, as it is, clearly singles out CSOs. In other words, there is a classification. American lawyers would argue that every time a law creates a classification by drawing a distinction among people, there could be an infringement question susceptible to an equal protection challenge. Is the restriction justifiable by any important objective? The American Supreme Court would evaluate the likelihood that a classification indeed reflects prejudice as opposed to a permissible government purpose.

If, for instance, the court finds that a law has a negative impact on the ability of a group (women for example) to protect itself through the political process, this law is susceptible to equal protection challenge. Finally, in determining the appropriate level of scrutiny, the interpreters of the Constitution will need to evaluate the law’s ends and its means. Laws often are underinclusive, overinclusive, or both.

One could argue that LEMNA is underinclusive because while it restricts CSOs, it does not restrict businesses. It could also be said to be overinclusive in the sense that CSOs should not have been restricted in the first place.

Citizens are left wondering what the real motive is behind restricting CSOs, or more precisely, what objective the government wants to achieve. Equally questionable is whether the chosen means is appropriate. Since equal protection is a constitutionally fundamental right, citizens, being the source of all powers, would expect the Cambodian interpreters of the Constitution to use every opportunity to more critically devise a general framework for analysing fundamental rights.

One such opportunity is now past, but time will tell whether future opportunities for revisiting LEMNA will come around. Want it or not, any laws can be reviewed by the Constitutional Council both before and after their coming into effect, so long as the representatives of the people still care for people’s rights and freedoms. After all, the true beauty of the Cambodian Constitution ought to first appeal to Cambodian eyes, not foreign ones.

Preap Kol is Executive Director of Transparency International Cambodia.

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