As the world faces the Covid-19 pandemic, there are growing concerns about the potential dangers to the nation and society which necessitates emergency actions.
The government has convened a team of legal experts and the standing committee of the Council of Ministers to draft a Law on the Management of the Nation in a state of emergency (“State of Emergency Law” or “SOE Law”).
The draft law comprising of five chapters and 12 articles was adopted by the National Assembly on April 10. It is expected to be passed by the Senate without major modifications and will subsequently be promulgated by the head of state within the month itself.
This law provides for modalities, process and conditions for declaring a state of emergency, some measures to be taken by the government, the reporting obligations of the government, and sanctions for obstruction and violations of government measures.
While the current Constitution stipulates the notion of a state of emergency, it does not provide a clear definition for it.
Article 22 of the Constitution states that: “When the nation faces danger, the King shall make a declaration to the people putting the nation in a state of emergency after receiving agreement from the Prime Minister and the presidents of the National Assembly and the Senate.”
Article 22 does not define the next steps after the King declares a state of emergency, especially with regards to the roles and responsibilities of the government. The term “state of emergency” itself is not defined in any other existing laws of Cambodia.
However, a state of emergency could be reasonably understood as a situation in which a government is empowered to take the necessary actions or impose policies that it would normally not be permitted to undertake.
The Constitution does not offer any guidance on the distinction between a normal and emergency situation, or to what extent the government’s action is permissible in taking measures which could restrict the rights and freedom of citizens.
Article 31 of the Constitution provides that: “The Kingdom of Cambodia shall recognise and respect human rights as stipulated in the UN Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights...”
The Constitution protects the rights and freedom of Khmer citizens and the only possible way to restrict these rights and freedom is by the legislative act adopted by the National Assembly.
Article 31, paragraph 3, of the Constitution states that: “The exercise of personal rights and freedom by any individual shall not adversely affect the rights and freedom of others. The exercise of such rights and freedom shall be in accordance with the law.”
Thus, without a law allowing the government to impose measures restricting the rights and freedom of persons, the government cannot do so.
Otherwise, the government’s measures could be invalidated by the competent courts for being ultra vires (in violation of) the Constitution and it could also be questioned by the National Assembly.
Under international law, the restriction of rights and freedom of persons is also permissible in case of emergencies, for protection of morality, public order and general welfare.
Article 29 of the Universal Declaration of Human Rights states: “2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
Article 4, paragraph 1 of the International Covenant on Civil and Political Rights, states: “1. In times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
I disagree with some views expressed by human rights advocates who claim that “[the] proposed emergency powers would obliterate human rights” or that “the egregious State of Emergency Law poses a grave threat to human rights in Cambodia”.
Others claim that “these unprecedented powers are wildly disproportionate and threaten to permanently undercut the human rights of everyone in Cambodia” and “this law should be seen for what it is – a naked power grab which seeks to manipulate the Covid-19 crisis to severely undercut the human rights of everyone in Cambodia”.
I observe that the critics seem to regurgitate their usual political attacks against government measures or policies. In particular, they aim to criticise Prime Minister Hun Sen. It looks like they assume that the baby will be abusive even before he is born.
But the critics should have reviewed the SOE Law from a more objective lens than just their human right utopia.
It is clear from the perspective of local and international law, as mentioned earlier, that restrictions on the rights and freedom are allowed in certain cases.
Also, the SOE Law is not just applicable in the case of the Covid-19 pandemic, but can also be used in any state of emergency as defined under Article 4 of the International Covenant on Civil and Political Rights.
Question is, why would the government abuse the rights and freedom of its citizens in the event of a national emergency?
I believe if the government wants to violate its citizens’ rights and freedom, it can do better without the SOE Law because this law sets out required procedures and conditions for the government to follow.
In the Cambodian practice, if there is no law, the government can impose measures at its behest.
I am aware of cases where the competent courts could revoke or nullify any government decision.
In other words, without the law passed by the National Assembly, it would be the government that has unlimited rights and freedoms in dealing with its citizens.
I also concur with the prime minister that it is better to have the law in place. Even if he does not need to use it now, it can be used when it is needed.
Although it was prepared post haste, the SOE Law was properly drafted by the government’s team.
It contains the necessary conditions and criteria to be considered as a fairly good law and it reflects the needs of the government and National Assembly.
I have reviewed some laws concerning the state of emergency in other democratic countries, and I believe that Cambodia’s SOE Law is acceptable.
Nevertheless, I believe that there are some provisions in the SOE Law which could be improved to make it better.
For example, it should have some explicit requirements for the government to prepare proper measures, action plans and strategies to deal with the danger or emergency situation before proposing the King and the presidents of the National Assembly and the Senate discuss and reach an agreement to declare a state of emergency.
Such requirement could be added into either articles 3 or 4 of the law as a condition before declaring the state of emergency.
The SOE Law should also require that the government’s power to manage the emergency shall meet certain conditions such as urgency, necessity, proportionality, appropriate motivation, temporariness and be non-discriminatory.
Article 5 of the SOE Law enumerates a list of measures for which the government can impose bans or restrictions on rights and freedom of citizens.
But this article does not provide for parameters which allow the government to suspend the rights and freedom of citizens during the emergency.
This could raise a lot of questions, abuses, uncertainty and difficulty in its enforcement.
How can the government justify its choices between applying the measures available to it under existing laws in normal situations, and the measures prescribed under the SOE Law in case of emergency, and to what extent of severity or motivation?
Article 5 allows the government to take “any appropriate and necessary measures in response to the state of emergency”.
This, on one hand, gives the government flexibility in taking measures. But on another, it grants the government a blank cheque and unlimited power which cannot be scrutinised by the National Assembly or competent courts because the parameters for determining appropriateness and necessity do not exist. The government would determine this at its discretion.
I conclude that Cambodia needs the SOE Law and it is hoped that the anomalies I have raised here will be looked into and amended at the appropriate time.
Ly Tayseng is lecturer in law and managing partner at HBS Law and HBS Notary Public