>Cambodia ignoring its Constitution


By Lao Mong Hay
Column: Rule by Fear
Published: October 29, 2008

Hong Kong, China — As the Cold War drew to a close, 18 countries, including the five permanent members of the U.N. Security Council, assembled in Paris in October 1991 to end the protracted war in Cambodia. They laid down in a peace agreement a set of basic principles to be incorporated in the Constitution of Cambodia to serve as its governing principles.

Cambodia’s own Constitution, adopted two years later in 1993, enshrined all these basic principles. Besides, it further specified the separation of powers, the organization and functioning of state institutions, and the election, appointment and status of officers to run them.

However, 17 years on, constitutionalism has not yet taken root in Cambodian soil. In fact, several new developments have taken place to counter it.

Last July, the Cambodian People’s Party won the parliamentary election, again, with an overwhelming majority of seats – 90 out of 123 – in the National Assembly, the lower house of Parliament. On Sept. 24, the new Parliament was sworn in.

According to the 1993 Constitution, the election of the president or speaker and vice-chairmen of the National Assembly should have followed. Unfortunately, that did not happen. The chairman of the National Assembly in consultation with the vice-chairman should have nominated a leader of the majority party for the king to appoint as prime minister. The latter should then have formed a government and submitted it to the National Assembly for a vote of confidence. The election and the vote of confidence should have been conducted by secret ballot. However, constitutional rules were ignored.

The winning party applied rules stipulated in the Additional Constitutional Law of 2004 to organize a bloc vote by a show of hands for the election of the parliamentary leadership and the vote of confidence. This law allows for such election and vote of confidence as a “necessity” when the application of the rules of the 1993 Constitution obstructs the smooth functioning of state institutions.

This bloc vote violated the Constitution on two counts. First, the constitutionality of the additional law itself was very dubious right from the start. The CPP, which won the 2003 election, forced the new Parliament to adopt it prior to the election of its leadership.

This party had not been able to form a government on its own, and a deal with a coalition partner was made to secure a two-thirds majority vote of confidence as required by the 1993 Constitution. But the leader of the stronger faction, Prime Minister Hun Sen, nominated many of his supporters in the government, as he was not sure of securing sufficient votes from its weaker coalition partner in Parliament.

The CPP feared that following the rules of the 1993 Constitution and holding an open debate would allow dissent and could thwart the planned composition of the leadership of the National Assembly, the government and the premiership of Hun Sen. The additional law allowing a bloc vote by a show of hands was introduced to silence such dissent.

Secondly, in this year’s election, the same party won more than the absolute majority required for the election of the leadership of the National Assembly and the vote of confidence in the government. But the rules of the 1993 Constitution were not applied first, according to the Additional Constitutional Law, to see whether they would have led to any particular obstacles that warranted the short cut with the bloc vote.

The new government has further violated the Constitution. After the vote of confidence, Hun did not make a policy address to the National Assembly, which he should have done to announce the political program of his government and seek the Assembly’s approval. Instead, the next day he made a policy address to his Cabinet at its first meeting, announcing that his government would continue to implement the political program of his previous government.

Such implementation is in beach of the Law on the Organization and Functioning of the Government (1994) whereby it implements policies and plans that received prior approval by the National Assembly.

The third and most serious violation was the ultimatum Hun gave to Thailand on Oct. 14, to withdraw its troops by the next day from the disputed territory near a temple called Preah Vihear on the Thai-Cambodian border. The area was occupied by Thai troops since July 15, 2008. Hun told reporters that the visiting Thai foreign minister and Cambodian army leaders including commandos at the frontline were instructed, “This place is a life-and-death battlefield.”

Hun’s warning to Thailand and instructions to Cambodian army commanders amounted to nothing short of a declaration of war. On Oct.15, Cambodian and Thai troops engaged in a brief battle, which caused death and injuries on both sides.

Hun’s action violated the Cambodian Constitution, according to which only the king of Cambodia, the supreme commander of the Cambodian armed forces, can make a declaration of war after both Houses of Parliament approve it. Hun Sen usurped the king’s power.

Constitutionalism in Cambodia exists only on paper given its past and present violations. The signatories to the Paris Peace Agreement should work with the Cambodian government to implement it the way they set out to do when they signed it in 1991.

(Lao Mong Hay is currently a senior researcher at the Asian Human Rights Commission in Hong Kong. He was previously director of the Khmer Institute of Democracy in Phnom Penh, Cambodia, and a visiting professor at the University of Toronto in 2003. In 1997, he received an award from Human Rights Watch and the Nansen Medal in 2000 from the United Nations High Commissioner for Refugees.)

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