Cambodia will celebrate today the 31st anniversary of the Constitution, promulgated on 24 September 1993.
Before the Constitution
Previously, the balance of power between the rulers and their subjects was exercised through the king, who ruled essentially through unofficial or informal channels. David P. Chandler, historian of Cambodia, explains:
‘A Cambodian king, like most Chinese emperors, could only rule by extending networks of patronage and mutual obligations outside his palace, initially through close associates and family members.’
In the nineteenth century, most rural people had only an approximate conception of their king. According to Chandler, rural people generally believed that the monarch had power over time, that he ‘dispensed true justice’ and was ‘the only political source of hope among the peasants’. That said, his legitimacy derived much more from charisma, popularity and genealogy than from the fair application of a system of laws.
With Colonial France
The concepts of legal and judicial systems were only really introduced in Cambodia with the advent of French colonialism in the 19th century. With these concepts also came the notion of defining and restricting the power of the state in formal law.
The process was cemented with the withdrawal of the French from Cambodia in 1953 and the 1947 Constitution they left behind. The Constitution of 6 May 1947, which had been amended several times up to 31 March 1964, provided for the power to interpret the constitutional text in Article 119, but did not set out the constitutional review. Final interpretation was left to the National Assembly.
Khmer rouge
The Constitution of 30 April 1972 of the Khmer Republic established a system of constitutional review under the name of the ‘Constitutional Court’. Despite its name, this body operated independently of the judiciary. The advent of the Khmer Rouge regime in 1975 led to the total destruction of the infrastructure and the rule of law until the end of 1978.
After the Vietnamese intervention on 7 January 1979, with the reconstruction of the nation in all areas, the restoration of the legislative system became active again. The 1981 Constitution of the People's Republic of Kampuchea entrusted the interpretation of the law to the Council of State. The 1989 Constitution of the State of Cambodia provided for the interpretation of the law by the Standing Committee of the National Assembly. But at that time, there was no such thing as constitutional interpretation or constitutional review.
The drafting of the 1993 Constitution drew heavily on both the 1947 Constitution and the 1989 Constitution, which had been drafted by the Vietnamese-backed People's Republic of Kampuchea (PRK).
Paris Peace Accords
The Paris Peace Accords date from 1991. Under international pressure, they aimed to settle once and for all the political violence that had plagued Cambodia for decades. They were designed to put an end to the civil war and also to organise ‘free, fair and peaceful elections’. The drafting of the Constitution and the transition to democracy were only part of the wider process of disengagement and normalisation outlined in the Paris Peace Accords. Aiming to achieve the complete transformation of the kingdom into a constitutional democracy, the process was divided into several stages:
Ceasefire, demobilisation and creation of a neutral political environment.
Election of the Constituent Assembly through an election organised by the UN
Selection of a drafting committee from among the members of the Constituent Assembly
Adoption by the Assembly of the Committee's draft
Proclamation of the Constitution by the King
Transformation of the Constituent Assembly into the National Assembly
Drafting of the Cambodian Constitution
The Cambodian Constituent Assembly was elected in 1993, with the task of drafting a constitution for the country in accordance with the Peace Accords. The work took place between June and September 1993. Conducted under the direction and funding of the United Nations Transitional Authority in Cambodia (UNTAC), the drafting of the text was the culmination of a US$1.6 billion effort to end the civil war and bring the belligerents into political rather than military competition.
Annex V of the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, entitled ‘Principles for a New Constitution for Cambodia’, consisted of six principles to guide the drafters of Cambodia's new constitution in creating a liberal democracy:
The constitution will be the supreme law of the land and can only be changed through a designated process involving legislative approval, a popular referendum or both
The constitution will contain a declaration of fundamental rights, including the rights to life, personal liberty, security, freedom of movement, freedom of religion, assembly and association, including for political parties and trade unions, due process and equality before the law, protection against arbitrary deprivation of property or deprivation of private property without just compensation, and protection against racial, ethnic, religious or sexual discrimination. It shall prohibit the retroactive application of criminal law... Aggrieved persons shall have the right to petition the courts to adjudicate and enforce these rights.
The Constitution shall declare the Kingdom of Cambodia as a sovereign, independent and neutral state, and the national unity of the Cambodian people.
The Constitution shall stipulate that Cambodia shall follow a system of liberal democracy, based on pluralism. It will provide for periodic and genuine elections.
An independent judiciary will be established, empowered to enforce the rights set out in the constitution.
The Constitution will be adopted by a two-thirds majority of the members of the Constituent Assembly.
Elections and process
The Paris Peace Accords provided for the election, within the framework of UNTAC, of the Constituent Assembly responsible for drafting the constitution in accordance with the six principles set out above. These elections took place between 23 May and 28 May 1993.
Despite threats of violence from the Khmer Rouge and a series of assassinations and acts of intimidation, voter turnout was very high. Over 90% of registered voters, some 4.5 million Cambodians, turned out at polling stations across the country.
On 10 June 93, the results were certified as ‘free and fair’ by the Special Representative of the Secretary-General of the United Nations. FUNCINPEC (the royalist party) won the vote with 45% of the votes, resulting in 58 seats in the Constituent Assembly. The CPP (Cambodian People's Party) followed with 38% and 51 seats. The BLDP (Buddhist Liberal Democratic Party) won 3.7% or 10 seats, and the LDP (Liberal Democratic Party) and MOLINAKA each obtained 1.3% and one seat.
The Constituent Assembly
In accordance with the deadline set by UNTAC, the Constituent Assembly began meeting to draft the Constitution on 14 June 93 while the flag of the former Kingdom of Cambodia was being raised.
At its first session, the Assembly adopted a resolution making Prince Norodom Sihanouk Head of State with retroactive effect to 1970, thus ‘cancelling’ the coup d'état that had deposed him. The following day, King Sihanouk in turn formed a joint administration with Prince Ranariddh of FUNCINPEC and Hun Sen of the CPP as co-presidents.
The drafting of the Constitution then continued apace. At the end of August 1993, UNTAC received a draft. This apparently gave unacceptable powers to the Head of State and insufficient protection for the rights of citizens and foreign residents. Nor did the draft contain provisions for an impartial and independent judiciary.
Finally, the UNTAC representatives felt that there was no ban on torture. Only some of the suggestions put forward by UNTAC were accepted and incorporated into the constitution.
Agreement on constitutional monarchy
Throughout the drafting process, Prince Norodom Sihanouk sent messages to the Assembly and the Cambodian people about his desire for a return to the monarchy. In interviews and letters, however, he stated that he was very hesitant, as he felt that the controversy surrounding the monarchy could become a source of division for a Cambodia that was still traumatised. Prince Sihanouk left for North Korea in July 93. In early September, a delegation representing FUNCINPEC and the CPP flew to Pyongyang. They brought with them two draft constitutions. Finally, the Prince and the delegation agreed on the adoption of a constitutional monarchy for Cambodia.
Ratification
Five days of open discussions took place in September 1993 on the draft constitution. The debates held in the middle of the Constituent Assembly were widely followed by the population on television and radio. The delegates agreed fairly easily on the basic concept of a constitutional monarchy, but there was still substantial disagreement on whether a two-thirds majority should be required for all legislation. The CPP was logically strongly in favour, despite equally understandable resistance from FUNCINPEC. In the end, the CPP succeeded in maintaining the two-thirds threshold.
Restoration of the monarchy
The final draft constitution for a constitutional monarchy in Cambodia was ratified by the Constituent Assembly on 21 September 1993. Prince Sihanouk signed the constitution on 24 September 1993, officially establishing the Kingdom of Cambodia. Prince Sihanouk was officially appointed King of Cambodia and sworn in on the same day in an austere ceremony held at his own request. The oath was taken in the throne room and Queen Monique also took the oath as his wife.
During the ceremony, in a gesture intended to be conciliatory, the King hugged several Khmer Rouge soldiers who had recently defected. Prime Minister Prince Ranariddh, standing next to them, declared:
‘There are no more Khmer Rouge or Yellow Khmer. There are only Khmers’.
Amendments
The 1993 Constitution has been amended 8 times:
The first amendment was promulgated by Preah Reach Kram (Royal Decree)) on 14 July 1994 to delegate the King's power of signature to the Acting Head of State. The second amendment (8 March 1999) created the Senate. The third amendment, promulgated on 28 July 2001, gave the King the right to create and confer national decorations and medals.
The fourth amendment was promulgated by Preah Reach Kram on 19 June 2005 and aimed to change the quorum of the National Assembly and the Senate in order to streamline the administrative process of the two legislative bodies. The fifth amendment of 9 March 2006 provided for changes to the procedures for forming the Head of the National Assembly and the Royal Government. The sixth amendment of 15 February 2008 was intended to reform the structure of the territorial administration of the Kingdom of Cambodia. The seventh amendment was promulgated on 23 October 2014 and gave constitutional status to the National Election Committee. Finally, the eighth amendment was promulgated on February 2018 to promote the value of the Khmer nation in the cause of protecting national independence, sovereignty and unity against external interference.
Notes :
Chandler, David (1993). A History of Cambodia
Marques, Stephen P. (2010). ‘The process of creating a new constitution in Cambodia’, ’Framing the state in times of transition: case studies in constitution-making’
Findlay, Trevor (1995). ‘Cambodia: the legacy and lessons of UNTAC (1997)’.
United Nations: ‘Agreements on a Comprehensive Political Settlement of the Conflict in Cambodia’.
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