The Implementation of the 1993 Constitution

The 1993 Cambodian Constitution provides the rules for the state's organs, and it is the state's organs at all levels, mainly the three branches of the powers, which are the core actors obliged to achieve the main objectives demanded by the Constitution.

Cambodia has achieved great results since the implementation of the Constitution. The constitutional principles and the state's commitment interact in a positive way. The constitutional principles guide the state's activities, and when the state's activities meet obstacles that harm the public interest, the state adjusts the Constitution through constitutional revisions and amendments.^[961] The constitutional flexibility and the response to the reality made by the Government of Cambodia has contributed to a number of achievements, which will now be discussed in the following subsections.

A. The Guaranteeing Check and Balance Mechanism

The 1993 Cambodian Constitution vests executive power in the Council of Ministers (the Royal Government of Cambodia) that is led by one Prime Minister assisted by Deputy Prime Ministers, Senior Ministers, and Ministers as members (article 118 (new-one).^[962] In Cambodia, the Council of Ministers must be approved by a vote of confidence by the National Assembly beforehand and later officially appointed by the King through Royal Decree.

According to the 1993 Cambodian Constitution, the judicial independence is explicitly expressed with the guarantees of legal protection of both the institu­tion (the court) and individuals (the judge) in exercising judicial functions. The Constitution grants a legal protection against outside intervention into the judi­cial power, ‘no state organ of executive or legislative power can carry out judicial power' in which the King is legal guarantor, and ‘the King shall be a guarantor, and the Supreme Council of Magistracy shall assist the King in this matter'.^[967] The legal protection of the judge and prosecutor is also clearly expressed in that ‘only judge has the right to adjudicate, and the judge shall fulfill this duty wholeheartedly and conscientiously with strict respect to the laws’,^[968] and ‘Only the Department of Public Prosecutor shall have the rights to file criminal suits'.^[969]

B.

Concerning the implementation of the Constitution, the Constitutional Council (CC) was established by the 1993 Constitution.^[970] It is an independent institution which aims to guarantee respect for the Constitution, to interpret the Constitution and laws adopted by the National Assembly and completely reviewed by the Senate, and has the right to receive and decide on disputes concerning the elec­tion of members of the National Assembly and election of members of the Senate.¹⁰² A decision of the Constitutional Council is considered final without recourse and shall have the authority overall to institute powers as stipulated in the 1993 Constitution.¹⁰³ For analysis, the decisions of the Constitutional Council mostly characterise the core jurisprudences concerning the following principles:¹⁰⁴

a) The guaranteed protection of fundamental rights: there are decisions concern­

ing the equality of political rights for man and woman,¹⁰⁵ the protection of political rights,¹⁰⁶ the freedom and the rights in religious and belief practices,¹⁰⁷ the protection from capital punishment,¹⁰⁸ the protection of Khmer citizens from the deprivation of nationality and deportation,¹⁰⁹ the protection of children’s rights.¹¹⁰

¹⁰²Articles 136, 137(1) and 141 of the 1993 Cambodian Constitution state that ‘the Constitutional Council consists of nine members with a nine-year mandate. Three members are appointed by the King, three members by the National Assembly and three others appointed by the Supreme Council of Magistracy. After promulgation of any law, the King, the President of the Senate, the President of the National Assembly, the Prime Minister, 1/4 of members of the Senate, 1/10 of members of the National Assembly or the courts may request the Constitutional Council to review the constitutional­ity of that law. Khmer citizens shall have the right to appeal against the constitutionality of any law through their representative or President of National Assembly or member of the Senate or President of the Senate.’

¹⁰³See further Taing Ratana, The Constitutional Council: Election, Procedure, and Competencies (Konrad Adenauer Stiftung, 2014).

¹⁰⁴ HE IM Chhun Lim’s speech delivered on the 24th anniversary of the Constitutional Council in June 2022.

¹⁰⁵ Decision N° 09 CC.D of 28 May 1999, examining the constitutionality of law on the organisation and the functioning of the Ministry of Woman’s affairs.

¹⁰⁶Including: (i) Notification N° 058/04/2014 of 18 August 2014; (ii) Decision N° 154/002/2015 CC.D of 24 March 2015: The letter N° 262 N.A of 23 March 2015 of Samdech Akka Moha Ponhea Chakrei Heng Samrin, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the Elections of the Members of the National Assembly; (iii) Decision N° 153/001/2015 CC.D of 24 March 2015: The letter N° 261 N.A of 23 March 2015 of Samdech Akka Moha Ponhea Chakrei Heng Samrin, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the Organization and the Functioning of the National Election Committee.

¹⁰⁷ Decision N° 107/003/2009 CC.D of 23 December 2009: Letter N° 960 N.A. of Samdech Akka Maha Ponhea Chakrei HENG SAMRIN, President of the National Assembly, requesting the Constitutional Council to interpret Article 4 and Article 43 of the Constitution, in reference to the 13 December 2009 request N° 065/09 from the President of the Theravada Buddhist Order of the Kingdom of Cambodia.

¹⁰⁸ Decision N° 040/002/2001 CC.D of 12 February 2001, examining the constitutionality of law on the organisation and the functioning of Extraordinary Chambers in the Courts of Cambodia (ECCC).

¹⁰⁹ Decision N° 03 CC.D of 23 April 1999, interpreting Article 33 of the Constitution.

¹¹⁰Decision N° 092/003/2007 CC.D of 10 July 2007: Royal Message of His Majesty Preah Bath Samdech Preah Boromneath Norodom Sihamoni, King of Cambodia, requesting the Constitutional Council to review the constitutionality of Article 8 of the Law on the Aggravating Circumstances of Felonies.

b) The guarantee of the respect for the principle of the rule of law: there are deci­sions concerning the supremacy of the Constitution,¹¹¹ the separation of the power and the judicial independence.¹¹²

c) The guarantee of the principle of sovereignty, national security, and the social values: there are decisions concerning the guaranteeing of national sovereignty,¹¹³ national security and public order,¹¹⁴ Khmer social values and democracy,¹¹⁵ the rights to demonstration,¹¹⁶ the opening the preliminary session of the National Assembly,¹¹⁷ and the quorum for the functioning of the National Assembly.¹¹⁸

Also, the 1993 Cambodian Constitution recognises that the laws and normative acts in Cambodia that guarantee the state properties, the rights, the liberties and the legal properties of private persons and that are in conformity with the national interests, shall remain in force until the new texts are made to amend or to abrogate them, except the provisions contrary to the spirit of the present Constitution.¹¹⁹ In short, the implementation of the 1993 Constitution, in general, is a prosperous achievement for Cambodia. It has been implemented in a flexible way by guar­anteeing and maintaining peace and stability for the sustainable development of Cambodia.

¹¹¹ Decision N° 060/002/2004 CC.D of 2 September 2004: Request of the 21 Members of the National Assembly for the examination of the constitutionality of the Additional Constitutional Law to guaran­tee the regular functioning of the National Institutions.

¹¹² Including: (i) Decision N° 149/003/2014 CC.D of 2 July 2014: the letter N° 253 N.A dated 13 June 2014 of Samdech Akka Moha Ponhea Chakrei Heng Samrin, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the Organisation of the Judicial Body; (ii) Decision N° 147/001/2014 CC.D of 2 July 2014: the letter N° 254 of 13 June 2014 of Samdech Akka Moha Ponhea Chakrei Heng Samrin, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the statute of the judges and the prosecutors.

¹¹³ Including: (i) Decision N° 126/001/2013 CC.D of 1 March 2013: the letter No 084 N.A of 11 February 2013 of Samdech Akka Moha Ponhea Chakrei HENG SAMRIN, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the Organisation and the Functioning of the Supreme Council of the National Defense' (ii) Decision N° 185/025/2017 CC.D of 3 March 2017, examining the constitutionality of the law on the amendment of the law on the political party; (iii) Decision N° 187/027/2017 CC.D of 25 July 2017, examining the constitutionality of the law on the amendment of the law on political party.

¹¹⁴ Decision N° 202/002/2020 CC.D of 27 April 2020: the letter N° 107 N.A April 20, 2020 of Samdech Akka Moha Ponhea Chakrei HENG Samrin, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the Management of the Nation in State of Emergency.

¹¹⁵ Including: (i) Decision N° 160/002/2016 CC.D of 5 May 2016, examining the constitutionality of the law on the trade union; (ii) Decision N° 156/004/2015 Cc.D of 12 August 2015: the letter N° 525 N.A of 28 July 2015 of Samdech Akka Moha Ponhea Chakrei Heng Samrin, President of the National Assembly, requesting the Constitutional Council to examine the constitutionality of the Law on the Associations and Non-Governmental Organisations.

¹¹⁶ Decision n° 062/004/2004 CC.D of4 October 2004: Request of the 13 Deputies to the Constitutional Council for examining the constitutionality of the Law on Demonstration.

¹¹⁷ Notification N° 19/2003 of 18 September 2003.

¹¹⁸ Notification N° 08/2005 of 29 April 2005.

¹¹⁹ Article 158 (new) (former article 156 (new)) of the 1993 Constitution.

V.