The Making of the 1993 Constitution

A. The Founding Principles

The Paris Peace Agreement is comprised of nine parts, 32 articles, and five attached annexes and was the main driving force behind the establishment of the 1993 Cambodian Constitution.

• Principle 1 - the Constitution will be the supreme law of the land. It may be amended only by a designated process involving legislature approval, popular referendum or both.

• Principle 2 - Cambodia’s tragic recent history required special measures to assure the protection of human rights. Therefore, 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 political parties and trade unions, due process and equality before law, protection from arbitrary deprivation of property or deprivation of private property without compensation, and freedom from racial, ethnic, religious or sexual discrimination. It will prohibit the retroactive application of criminal law. The declaration will be consistent with the provisions of the Universal Declaration of Human Rights and other relevant international instruments. Aggrieved individuals will be entitled to have the court adjudicate and enforce these rights.

• Principle 3 - the Constitution will declare Cambodia’s status as a sovereign, independent and neutral state, and the national unity of the Cambodian people.

• Principle 4 - the Constitution will state that Cambodia will follow a system of liberal democracy on the basis of pluralism. It will provide for periodic and genuine elections. It will provide for the right to vote and to be elected by universal and equal suffrage.

• Principle 5 - an independent judiciary will be established, empowered to enforce the rights provided under the Constitution.

• Principal 6 - the Constitution will be adopted by a two-thirds majority of the members of the constituent assembly.

The Paris Peace Agreement paved the way for the United Nations to work on the peace process in Cambodia. This Agreement contains three main elements that can be identified as a major accomplishment contributing to the peaceful settle­ment of the Cambodian conflict. First, this Agreement established UNTAC and the SNC, which was composed of all Cambodian factions in the conflict.^[925] Second, this Agreement provided for UNTAC-supervised national elections in cooperation with the SNC, which brought political legitimacy to the parties involved. Third, this Agreement opened a process leading to a political system and Constitution based on ‘the principles of liberal democracy and pluralism’.⁵⁴

As previously noted, the Paris Peace Agreement was the foundational docu­ment for the making of the 1993 Constitution in Cambodia. Therefore, in order to create a new Constitution for Cambodia, the overall transition process of which the constitution process was a part took place in six phases:

i. cease-fire, demobilisation and creation of a neutral political environment;

ii. election of the Constituent Assembly through a UN-run election, the outcome of which was declared ‘free and fair’ by the special representative of the Secretary-General (SRSG) and the Security Council;

iii. selection of a drafting committee from among the members of the Constit­uent Assembly;

iv. adoption by the assembly of the committee’s draft;

v. proclamation by the King of the Constitution; and

vi. transformation of the Constituent Assembly into the national assembly.⁵⁵

B.

Implemented by Security Council Resolution 745 (1992) of 28 February 1992, and fully operational by 15 March 1992, UNTAC was created to ensure the imple­mentation of the agreements on a Comprehensive Political Settlement of the Cambodia Conflict (The Paris Peace Agreement). UNTAC was the largest United Nations’ (UN) peacekeeping mission in its history. The mission cost more than $1.5 billion.⁵⁶ There were seven key components of UNTAC’s mission: (i) human rights; (ii) election; (iii) military; (iv) civil police; (v) civil administration;

parties into a working relationship to help maintain the peace process and, in particular, to enable them to select a unified Cambodian delegation to the UN General Assembly, which created an institutional mechanism to end the protracted conflict.

⁵⁴ Article 12 of the Paris Peace Agreement provides that: ‘The Cambodian people shall have the right to determine their own political future through the free and fair election of a constituent assembly, which will draft and approve a new Cambodian Constitution in accordance with Article 23 and trans­form itself into a legislative assembly, which will create the new Cambodian government. This election will be held under United Nations auspices in a neutral political environment with full respect for the national sovereignty of Cambodia.’

⁵⁵ Laruel E Miller (ed) with Louis Aucoin, Framing the State in Times of Transition: Case studies in Constitution-Making (United State Institute of Peace, 2010) 207-44.

⁵⁶‘ There were 22,784 Personnel composed of 15,900 military personnel, 3600 Civilian Police, and 2000 civilians, including 450 United Nations Volunteers (UNVs) from 100 countries. UNTAC was supported by 10,000 Cambodians who were mainly employed as electoral staff and interpreters.’: Sothirak Pou, Charadine Pich, Bradley Murg and Courtney Weatherby, The Paris Peace Agreements: Looking back and moving forward (Stimson Center, 2021) 23.

(vi) repatriation; and (vii) rehabilitation.^[926] In order to attain the above-mentioned points, UNTAC needed to work continuously with the SNC, which was the interim government of Cambodia. At that time, prince NORODOM Sihanouk was the head of the SNC while H.E. YASUSHI Akashi served as the SRSG and head of the UNTAC mission in Cambodia.

In order to create a better situation for Cambodia and one which was favour­able in terms of the election, stabilising the peace was UNTAC's first priority. UNTAC was also set up to supervise the following:

i. ceasefire;

ii. the end of foreign military assistance and the withdrawal of foreign forces;

iii. the regroup, canton and disarmament of all armed forces of the Cambodian parties, and ensure a 70 per cent level of demobilisation;

iv. the activities of the administrative structures, including the police;

v. ensure respect for human rights; and

vi. organise and conduct free and fair election (free and fair election was the most important mission of the UNTAC in Cambodia in order to create a national government which was supported by the Cambodian people).

In order to accomplish the sixth mission (free and fair election), UNTAC needed to work effectively with all Cambodian political parties to create an atmosphere that allowed all Cambodian people to go out and vote peacefully.

C. The Universal Election of 1993

The universal election officially took place from 23-25 May 1993. UNTAC conducted the election to create the Constituent Assembly in order to establish a new constitution. Twenty political parties took part in this election including the main political parties, the Cambodian Peoples' Party (CPP), the royalist Front Uni National pour un Cambodge Independant, Neutre, Pacifique et Cooperatif (FUNCINPEC), and the Buddhist Liberal Democratic Party (BLDP). On the other hand, the PDK, known as the Khmer Rouge, did not register for the elec­tion and did indeed later on vow to disturb this election.

Nevertheless, this situation did not stop the universal election. About 96 per cent of Cambodian people registered to vote, but due to the threat of attack by the Khmer Rouge, only 90 per cent of the registered voters, over 4.2 million people, cast their ballots to elect a Constituent Assembly. Cambodian people risked their lives to walk out of areas controlled by the UNTAC police in order to vote. This illustrates just how much the Cambodian people wanted peace and national unity. Among the 4,764,439 registered voters, 4,276,192, or 89.56 per cent of electors,^[927] cast their ballots. The election resulted in the FUNCINPEC Party winning 58 seats, the Cambodian People's Party (CPP) winning 51 seats, the Buddhist Liberal Democratic Party (BLDP) winning ten seats, and the MOULINAKA Party winning one seat.^[928] At the SNC meeting of 10 June 1993, SRSG YASUSHI Akashi, on behalf of the Secretary-General, declared that the election had been free and fair.

However, the CPP did not accept this result and claimed that this UN-organised election was unfair due to irregularity and mistakes concerning the keeping and counting of the ballots. This led to a short period of political deadlock. Finally, His Majesty NORODOM Sihanouk came up with a solution and believed that a co-prime minister system could work to maintain national reconciliation and unity, which was then accepted by the political parties concerned. As a result, FUNCINPEC and CPP agreed to form a coalition government, which allowed prince NORODOM Ranaridh from FUNCINPEC to become the first prime minis­ter and HE HUN Sen from CPP to become the second prime minister. Moreover, co-ministers also chaired other important ministries such as the Ministry of Interior and the Ministry of National Defence. This co-prime minister system was the first of its kind in the world and was the key catalyst for the safe delivery of the Constituent Assembly.

D. The Processes after the Universal Election

i. The Constituent Assembly

After the aforesaid political resolution succeeded, the Constituent Assembly, composed of 120 members from four political parties, set to work establish­ing a Constitution for Cambodia. This Constituent Assembly entered into force on 14 June 1993. The Constituent Assembly represented all Cambodian people and was the only legitimate body for drafting and adopting a new constitution for Cambodia.

ii. The Permanent Constitution-Drafting Commission

On 30 June 1993, the Constituent Assembly called for its first session to estab­lish a Permanent Constitution-Drafting Commission. This Commission was led by the president of the Constituent Assembly or by the vice president in the absence of the president. Thus, Samdech SON Sann from the BLDP sat as the president of the Commission, H.E. CHEM Snguon, from the Cambodian People's Party sat as vice president of the Commission, while another dignitary from the FUNCINPEC Party, H.E. TAO Seng Hour, was the rapporteur. Aside from these aforementioned personalities, the Commission was composed of another ten members,^[929] eight alternate members,^[930] and five experts.^[931] In total, this Permanent Constitution-Drafting Commission was composed of 26 members. After its estab­lishment, the UN supported and provided legal specialists working as advisers to this Commission in order to help with the drafting of the Constitution to ensure its conformity with principles stipulated in the Paris Peace Agreement, ultimately carrying the weight of responsibility.

It was the Permanent Constitution-Drafting Commission, composed of those aforesaid 26 members, who directly drafted the 1993 Constitution. According to a speech by HE TAO Seng Hour on the ninth anniversary of the Constitutional Council, the Commission, composed of Khmer nationals, worked tactically and efficiently in order to draft the Constitution.^[932] On the same occasion, HE CHHUOR Leang Huot, one of the Drafting Commission's members, shared crucial information; there were two drafts of the chapter on the political regime made during that drafting process, one draft for the republic regime and another draft for the constitutional monarchy. In the end, the constitutional monarchy was adopted. However, there were very few people who had known about this process since the first draft had been kept secret, not only to the public but also to the other members of the Constituent Assembly. On 21st August 1993, the Drafting Commission finished its work and finalised this draft on 27th August 1993.^[933]

iii. The Consultation with His Majesty

The two political parties, CPP and FUNCINPEC, played vitally important roles in the drafting process. After the Permanent Constitution-Drafting Commission finalised the draft, the Commission and the leaders of the CPP and FUNCINPEC brought it to His Majesty NORODOM Sihanouk, in Pyung Yang (North Korea), on 30th August 1993, for consultation and asked for ‘approval’. The above­mentioned draft of the Constitution was somewhat changed. According to H.E. CHEM Sgnuon's intervention which was recorded in the Constituent Assembly's minutes, His Majesty NORODOM Sihanouk, who strongly intended to promote the most progressive democracy in Cambodia, suggested reducing the Head of State's power as provided in this draft Constitution, which resulted in the follow­ing changes:^[934]

i. the national assembly rather than the King will nominate and appoint the Prime Minister;

ii. the attendance of the King in the council of ministers meeting shall be led by the Prime Minister rather than the King.

iii. the King preferred not to enjoy the right to veto for a law that was adopted by the national assembly because he assumed that the national assembly was the only representative of the entire Cambodian people, hence he would never disagree with what his people decided;

iv. the King is the Supreme Commander of the Royal Khmer Armed Forces, but he shall not directly command the Armed Forces, but will serve in an honorary capacity, hence another Commander-in-Chief shall be appointed to directly command the Armed Forces; and

v. the King shall grant amnesty at the Prime Minister's request rather than by his initiation.

All these suggestions were later approved by the Constituent Assembly.

One interesting point in the first draft is the provision concerning the political regime. It was very surprising that the draft that the Drafting Commission and the leaders of the main political parties carried from Phnom Penh to Pyung Yang for His Majesty's consultation, was reported, ‘it is not the republic nor monarchy, but a demo­cratic regime’.^[935] Thus, the term ‘Head of State’, which could refer to ‘the King' or ‘the President' was used in this draft. It was the night of the 31st August 1993 at 9:30pm, after the state dinner organised by the President of the Parliament of North Korea, that the three leaders of the political parties, Samdech SON Sann from BLDP, Prince NORODOM Ranaridh from FUNCINPEC, and H.E. HUN Sen from CPP requested a courtesy call with His Majesty NORODOM Sihanouk and unanimously asked for his approval to enshrine monarchism into this draft of the Constitution. The three leaders agreed that only monarchism could maintain Cambodia's stability.^[936]

iv. The Debate in the Constituent Assembly

Not all the members of the Constituent Assembly directly joined the drafting process, hence after the Permanent Drafting-Constitution Commission accom­plished its work, this draft was put to the Constituent Assembly for debate and adoption. The Constituent Assembly’s members fully enjoyed discussion in the Assembly’s following plenary sessions. According to the minutes^[937] of the Constituent Assembly’s plenary session on the 15th September 1993, the debate on the draft of the 1993 Constitution was conducted in a very free and responsible manner. All members of the Constituent Assembly, particularly those who stood up for an intervention, expressed their desire to make a good Constitution, which was beneficial to the Cambodian people. The hot topics that were debated during those sessions were those concerning human rights, which were the rights and duty of Khmer citizens (those articles in chapter 2), the proposal on the estab­lishment of a human rights institution (there was no mention of this in the 1993 Constitution); and the economic regime (those articles in chapter 6). Beyond those aforementioned issues, the national motto (article 4), capital punishment (article 32), and nationality (article 33) were also debated. Interestingly, the debate on the political regime in chapter 5 was less intense. It can be concluded that the Constituent Assembly focused on the rights and freedom, living standards, secu­rity, and the dignity of the Cambodian people.

The minutes of the second session of the Constituent Assembly, held on 15 September 1993, showed that this was the first discussion of the achieved draft by the Constituent Assembly (the representatives of all Cambodian people). One should not forget the effort of the Constituent Assembly’s members both working on the draft and on the discussion. The discussion process took just five days. This is a very short time for a country to make a constitution. Even now, it takes weeks or months to amend a constitution. The members of the Constituent Assembly steadily worked from morning to afternoon, amid a fragile situation that could see the country falling into a political deadlock. In the words of Samdech SON Sann:^[938]

[...] Offering the legitimacy of His majesty the king NORODOM Sihanouk that is the desire of all Cambodian people. Cambodian people wish for a stable peace and national building for the interest of the citizen. National unity will be achieved in this way, and only His majesty the King NORODOM Sihanouk would make it real [...].^[939]

v. The Involvement of the International Community in the Drafting Process

The Constituent Assembly is the only organ representing the Cambodian people that was competent enough to draft the 1993 Constitution. The Constituent Assembly of 1993 is credited with drafting the bulk of the Constitution. However, involvement from foreign experts and signatory countries could not be avoided in the drafting process, with some taking on important roles.^[940] For instance, Dato' Param Cumaraswamy,^[941] a high-profile Malaysian lawyer, indicated that he had been involved, as the international expert, in the drafting of the 1993 Cambodian Constitution, particularly the part concerning judicial independence.^[942] Another important event in the process was the constitutional seminar held from 29 March to 3 April 1993 because all Cambodian parties and other non-governmental organ­isations (NGOs) were invited to participate in the discussions made by UNTAC staff and several Cambodian and outside experts. This was a way to improve the awareness of the issues, the structure, and the contents of the Constitution.

The human rights component of UNTAC managed many human rights education programmes during the post-election period towards ‘constitutional literacy' in an effort to educate Cambodian NGOs and the general public and provide them with a good understanding. In general, the UNTAC missions focused on the process rather than the substance. Its aim was to put everything back in order to allow Cambodian political parties who had already agreed to the political settlement to decide about their country's future. Therefore, the interna­tional community (countries and foreign personalities) was perceived as a more neutral and supportive agent in designing the process that would have allowed the Cambodian people themselves to make key substantive choices. However, the international community, in fact, had tried to exert pressure and influence over the Constituent Assembly and the drafting commission on the new drafting of the Constitution, particularly the part concerning the political regime.^[943]

Other significant actors such as contact group, the regional power, the perma­nent members of the Security Council, the Chairpersons of the Paris Conference and the UN secretariat were also involved. All the above actors represented the international community. The permanent member of the Security Council made many resolutions relating to the peace process in Cambodia. Various international organisations such as the US-based National Democratic Institute (NDI) and

International Republican Institute (IRI) held many seminars in order to educate citizens and others working in the human rights field to deepen their understand­ing of the Constitution.^[944]

vi. Public Participation in the Constitution-Making Process

Public participation in the constitution-making process was a key factor in regards to building respect for the democratic principles of the Constitution. The effort to engage the public in the constitutional process mainly consisted of providing infor­mation and education. This popular engagement with the constitution-making process grew out of the human rights education effort of UNTAC and its partners among indigenous NGOs. Public participation in each step of the constitution­making process was considered important, starting from the dissemination of the election, the election campaign and other related influential issues.

In the election process, controlled and managed by UNTAC, the participation of the public was explicitly set out. Indeed, the Paris Peace Agreement obligated Cambodia ‘to support the right of all Cambodian citizens to undertake activi­ties which would promote and protect human rights and fundamental freedoms’. Annex 3 referred to the rights, freedoms and opportunities of all Cambodians to take part in the electoral process, including freedoms of speech, assembly and movement, and fair access to the media for registered political parties. However, public participation in the constitution-making process was not specified. In regards to the whole process of achieving the constitution promulgation, starting from the election, the establishment of the Constituent Assembly, the constitution­drafting, and the adoption of the Constitution, we can see that there was a lot of public participation. However, in the process of drafting and adoption made by the Constituent Assembly, public participation was sadly lacking.

The Secretary General's report to the Security Council on Cambodia stated: ‘the development and dissemination of a human rights education program is foreseen as the cornerstone of UNTAC’s activities in fostering respect for human rights [...]’. Thus, Cambodian people can understand their rights and their limita­tions in the process of making the Constitution for their own country. It should be noted that the process of drafting the Constitution cannot involve too many public citizens. However, the NGOs, which were working for the human rights sector, also had an influence on this constitution-making process. Five influential human rights groups were functioning in Cambodia during the transitional period, with a combined membership claimed to be over 150,000. A significant development during the period of the constitution-making process was the founding of a coali­tion of 14 Cambodian NGOs called PONLEU Khmer (Cambodian Illumination), which defined a strategy for lobbying the Constituent Assembly in order to press for strong human rights provisions, especially with respect to the rights of women. Another player in this effort was the Khmer Institute of Democracy, established by a former aide to prince NORODOM Sihanouk with funding from Australian and North American funds, which held public seminars, workshops and debates about democratic ideals and principles.^[945] The views of citizens in the provinces were gathered by NGOs such as Vigilance and PONLEU Khmer through public work­shops, constituent meetings with elected members of the Constituent Assembly, and public open houses, creating an open dialogue among Cambodian people. The freedom of action of NGOs, protected by UNTAC, and the freedom of expres­sion of the media created a high degree of public expectation that there would be opportunities to influence the drafted constitution.

vii. The Adoption and Promulgation

Finally, the Constituent Assembly completely debated and approved the draft on 21 September 1993 by a vote of 113 in favour, five against, and two abstentions; in the democratic atmosphere. This should be noted as the most successful work of the Constituent Assembly for completing the draft in such a short time. Thus, the question ‘who made the 1993 Constitution?' could not be verified specifically to anyone, rather to all Cambodian people who bravely joined the election; the assistance of UNTAC in all processes from chaos to peace, from untidy to tidy situ­ations allowing for election and from the Constituent Assembly members whose efforts cannot be fully described.

On 24 September 1993, in the sacred throne hall, Maha Prasat Deva Vinichhaya^[946] of the Royal Palace in Capital City, namely Krung Caktummukh Mangala Sakala Kampujadhipadi Siri Yasodhara Pavara Indrapattaburi Ratharajasima Maha Nagara (Phnom Penh for short), His Majesty the King NORODOM Sihanouk signed Royal Kram^[947] promulgating the Constitution after the Constituent Assembly adopted it, which made this new Constitution the sixth since Cambodia adopted a modern constitutionalism in 1947. After this 1993 Constitution came into force, the Constituent Assembly became the National Assembly and the King could now be elected under the conditions provided in the new Article 13 and Article 14 of the Constitution.^[948]

III.