As Constitution Turns 28, Observers Says Top Law Fragile Under One-Party Rule
At 28 years old, the country’s sixth constitution has a longer lifespan than all of its processors. However, it’s a significantly different document — having gone through nine amendments, the latest in 2018.
PHNOM PENH — High Privy Councilor Son Soubert remembers fondly the weekslong efforts in 1993 to compose the text that would ostensibly define post-Cold War Cambodia: The Constitution of the Kingdom of Cambodia. “The very purpose back in time was to constitutionalize the ideas of honoring the people’s rights and freedom once violated by some previous political regimes, especially the Khmer Rouge,” Soubert, 79, told VOA Khmer in an interview. “We tried to prevent the return of those horrors.” Soubert, the only son of late Cambodian statesman and former Prime Minister Son Sann, was part of the multi-party team that drafted the constitution, a process led by his father, who led anti-communism militancy against Vietnamese occupation in the 1980s on the country’s western jungle borders. Signed and promulgated on September 23, 1993, the Constitution restored the monarchy while also creating an electoral democracy with sweeping language on respect for human rights and freedoms. Now 28 years later, the Constitution still exists but the ideals of democracy and human rights are ever-more fragile and uncertain under Prime Minister Hun Sen’s ruling Cambodian People’s Party, which has cemented its one-party rule and occupied all constitutional bodies, including the Constitutional Council, Cambodia’s version of the U.S. Supreme Court, Soubert said. “It is becoming meaningless,” he said, “because we have a de jure multiparty system in the constitution, but in the current de facto reality, there is none. I am speechless.” While many observers in Cambodia may quietly agree with Soubert’s analysis, a statement released by the U.N. made only a vague allusion to the recent democratic backsliding, saying Cambodia can “build back better” from the COVID-19 pandemic “and ensure no one is left behind.” Opposition politicians living abroad were more blunt in their statement making the anniversary, writing "The Phnom Penh regime has abused and savagely destroyed the original spirit of the Constitution.” After the CPP-dominated National Assembly passed a pair of controversial amendments to the country’s political party law in 2017, a panel of judges — a majority of which were card-carrying CPP members — outlawed the opposition Cambodia National Rescue Party and then handed five-year political bans to 118 of the party’s senior members. With its top institutional rival removed, the ruling party grabbed 58 seats at the 68-member Senate and all 125 seats at the National Assembly, giving the CPP more than enough seats to change the constitution as it wishes. Any constitutional amendment requires two thirds’ approvals from each of the two parliamentary houses. “The ruling CPP can just arbitrarily amend anything with no opposition given its 100-percent control of the lower house, meaning no one shall be legitimate enough to justify its actions whether it can be done in the national interests,” Soubert said. The Constitutional Council could have prevented the dissolution of the CNRP in 2017 by ruling that the amendments to the political party laws were unconstitutional, Soubert said. But it didn’t, which Soubert said shows the nine-member body's lack of political independence. Soubert himself was among the King-appointed members of the Council from 1998 to 2007. Each member has a nine-year term limit. The Council is tasked with assessing the constitutionality of any laws passed by the Senate and National Assembly before they are sent to the King for promulgation. It is also empowered to make an official interpretation of the constitution and laws. In the current Constitutional Council, there are three royally-appointed, apolitical members – each a member of the royal family. The remaining six are CPP stalwarts. The Council’s chair, Im Chhunlim, was the former Land Management Minister and also stands on the CPP Permanent Committee, the party’s powerful, 36-member top decision-making politburo. The other five CPP members — the former Justice Ministry’s second-in-command Hy Sophea, former election commissioner Im Suosdey, former chief Appeal Court judge Ly Vuochleng, Uth Chhorn, and Sam Promonea — were all members of the CPP Central Committee, the ruling party’s national rubber-stamp political organ. The ruling party’s leader does not shy away from touting the party’s ability to change the Constitution on a whim. In a response to counter opposition leader Sam Rainsy’s claim that the prime minister was seeking post-premiership immunity, Hun Sen admitted the obvious. “In case I want to do it, I will not stop short at just legislating a law, but I will also go as far as writing it in the Constitution,” Hun Sen said in fiery speech last week. “Not just legislating a law; the CPP is capable of changing the constitution.” At 28 years old, the country’s sixth constitution has a longer lifespan than all of its processors. However, it’s a significantly different document — having gone through nine amendments, the latest in 2018. The ninth change involved the addition of clauses dictating that citizens and political parties must protect “national interests” and counter “interference” from foreign actors, as well as permitting the confiscation of voting rights from individuals ruled as unqualified — all measures that critics viewed as targeting the CPP’s political opponents. “The current constitution is just drifting too far away from the original concepts,” Soubert said. Sok Eysan, a CPP Senator and party spokesperson, said the party has always “respected” and “complied” with the Constitution’s spirit. “Any parts of the Constitution, like any other laws, need to be amended if they are unfit with the new historic circumstances of our nation. But any amendments shall not touch on the provisions of constitutional monarchy, liberal and multi-party democracy, and market economic regime,” he said. Eysan brushed off questions about the political independence of the Constitutional Councilors. “I would like not to comment on the issues of political tendency. I only want to stress that the Constitutional Council shall properly execute its roles and duties as stated in its organic law,” he said. “Thus, there is no reason to make an accusation that the Constitutional Council is biased to the CPP.” Marking last week’s anniversary of the Cambodian Constitution, the United Nations’ Cambodia office also issued a reminder of its basic tenants — and called for the government to respect them. “As today Cambodia celebrates its Constitution Day in midst of the COVID-19 pandemic, the UN encourages Cambodia to uphold and respect human rights enshrined in the UN Charter, the Universal Declaration of Human Rights, other international human rights treaties as well as liberal multi-party democracy as recognized and stipulated in its Constitution,” it said in a statement. “Through the promotion and protection of human rights for all, Cambodia can build back better and ensure no one is left behind,” it added. CNRP President Kem Sokha, who has been accused of conspiring with the U.S. to overthrow the CPP, issued a slightly more strongly worded statement marking the constitutional anniversary. “Please join together to stop violating our constitution by not abusing the constitutional monarchy and by not shifting away from the path of liberal and multi-party democracy as enshrined in our top law,” Sokha wrote. CNRP officials abroad who are loyal to Sam Rainsy, Sokha’s predecessor and the party’s co-founder, were less reserved in their statement. “The Phnom Penh regime has abused and savagely destroyed the original spirit of the Constitution, our nation’s top law. The Phnom Penh regime has subsequently amended the Constitution in ambition to prolong their grip on power.” Government Spokesperson Phay Siphan said the prime minister’s cabinet and the CPP have always respected the rules and rights enshrined in the Constitution. “The fact that we occupy all seats in the National Assembly does not mean we can just travel there and sit there, but it happened after the election with our correct policies within the context of rule of law in a democratic society,” Siphan said. “Democracy is the option chosen by the Cambodian people. It does not belong to any single individual's choice. Thus, the democracy does not just fall from the sky, but it needs time to construct. Cambodia is in this path, constructing democracy.” Son Soubert, however, said he observes a different reality in Cambodia, one in which people’s rights are not respected and their voices are silenced. “The constitutional rights and the freedom of the people are being violated on a daily basis,” he said. “All I can express is that it is regrettable that we are not on the way to attain a functional democracy.”