The Reasons Behind the Making of the 1993 Cambodian Constitution
Everything shall happen by having its own cause. The Constitution is the supreme law of Cambodia. Cambodia is a land of a long history. The history of Cambodia can be divided into two categories, which are briefly and clearly declared in the Preamble of the 1993 Constitution: pride - ‘accustomed to having a grand civilization, a prosperous nation, a very large territory, a prestige glittering like a diamond’,[874] and suffering - ‘having fallen into a terrifying decay for the two last decades, when we have been undergoing unspeakable, demeaning sufferings and disasters of the most regrettable way’.[875] These two historical categories could explain the reasons why the Cambodian people established the 1993 Constitution.
Clarification of this can be clearly found in the aforesaid Preamble:In a burst of consciousness, rising up with a resolute determination in order to unite, to strengthen the national unity, to defend the Cambodian territory, to preserve the precious sovereignty and the marvellous civilization of ANGKOR, to re-build the country and become once again an ‘Oasis of Peace’ based on the system of a liberal multi-party democracy, to guarantee human rights, to ensure the respect of law, to be highly responsible for the destiny of the nation forever evolving toward progress, development and prosperity.[876]
The establishment of this supreme law is bound with the political, social, and economic factors of the nation.
A. Political Factors
The making of the 1993 Cambodian Constitution closely relates to the recent history of Cambodia in the last two decades (1970s-1990s). One cannot exclude an important event held in an international conference in Paris on 23 October 1991, the day on which the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict (alias the Paris Peace Agreement) was signed.
This Agreement was the outcome of a long political resolution process and the end of the war in Cambodia. The political history concerning the establishment of the 1993 Constitution notably involved the following two factors:[877]i. The Internal Political Factor
The coup d’etat of 18 March 1970 was a historical event causing internal political conflict for more than two decades, dark decades for Cambodia. This coup d’etat abolished the 1947 Constitution and more than 1,000-year monarchism of the Kingdom. The majority of Cambodian politicians and historians agree that this aforesaid event plunged Cambodia into war and disaster. This resulted in many regime changes in Cambodia. Khmer Republic, a USA-backed regime, established in 1972 by the coup's leader, General LON Nol and his clan, could not guarantee long lasting peace, democracy implantation, and stability for Cambodia as they had declared to the public. Later, Khmer Republic, in April 1975, was replaced by Democratic Kampuchea (alias Khmer Rouge), a communist-backed regime; which pushed Cambodia into another dark period - a period of mass genocide, which resulted in nearly two million deaths. The space left by the fall of Khmer Rouge on 7th January 1979 was later filled by a socialist regime backed by Vietnam and the Soviet Union, namely the People's Republic of Kampuchea (PRK). As a result, it immediately pushed Cambodia into another decade (1980s) which saw the dispute of four factions over one Cambodian territory under the dark cloud of the Cold War.
Following the PRK and Vietnam's victory over Khmer Rouge, resistance came from three other factions. These were the faction of FUNCINPEC,[878] the faction of Khmer Rouge, and the faction of FNLPK.[879] These three factions' missions aimed at fighting against the PRK,[880] plunging Cambodia into a new era of civil war. China, the USA, European countries, and the Association of Southeast Asian Nations (ASEAN) supported the three factions; so that they could continue their military action in the west of Cambodia along the Thai border.
The PRK controlled the larger parts of the territory, but was surrounded by the economic and political sanctions. As a result, Cambodia by that time was placed in the middle of the conflict among the four factions and in the midst of the geopolitical competition between the super powers.In 1982, the three factions formed a triple coalition government, namely the Coalition Government of Democratic Kampuchea (renamed in 1990 as the National Government of Cambodia) for fighting against the PRK. As a result, the two governments claimed their rights to legally control Cambodia by using military means, but neither side won nor lost this fighting. Later, the two leaders of the two sides, prince NORODOM Sihanouk and HE HUN Sen, started to consider the negotiation for peace. Because of this political will of the both great leaders and also of the support from the international communities, the positive signal of the resolution for the peace was clearly seen in 1987.
The first meeting of prince NORODOM Sihanouk and HE HUN Sen held in 1987 in Fere-en-Tardenois, France, is seen as the most significant event in the peace-finding process for ceasefire in Cambodia[881] and its negotiations on rebuilding the national unity. Before the meeting, HE HUN Sen[882] put forth in October 1987 a five-point declaration to resolve the Cambodian issue, as follows:
1. Organise a Sihanouk-HUN Sen meeting.
2. Complete withdrawal of Vietnamese troops from Cambodia, along with the cessation of all aid and support to the forces of the Coalition Government of Democratic Kampuchea.
3. Organise an election with international observers to form a coalition government that adheres to the principles of neutrality and non-alignment.
4. Negotiate with Thailand to establish a safe and peaceful border and arrange for the voluntary repatriation of refugees.
5. Organise an international conference to ensure that the agreement would be reached, with the participation of both governments (Coalition Government of Democratic Kampuchea and the People's Republic of Kampuchea), the five permanent members of the United Nations Security Council, Vietnam, India, and other countries.[883]
In accordance with the aforementioned political progress, the PRK expressed goodwill for peace-finding; hence it brought in a notable reform in 1989 in order to be flexible with international change, and also to facilitate the peace-finding process.
The new Constitution of 1989 transformed Cambodia into the State of Cambodia (SOC). As of 21st February 1990, prince Sihanouk, the leader of the triple Coalition Government and H.E. HUN Sen, the leader of the SOC, met in Bangkok to discuss the deployment of the United Nations forces in Cambodia.[884] Although some agreements were reached, mistrust remained a barrier for negotiation. Similarly, the SOC's disagreement over the establishment of the Supreme National Council (SNC) was also a major bone of contention between each faction.[885]In response to the dissatisfaction over the SNC, the SOC demanded that Khmer Rouge leaders should be sent to trial for their genocidal acts, resulting in armed clashes.[886] Moreover, the SOC also insisted that each party controlled only their territories before the elections.[887] In fact, neither the SNC nor the United Nations Transitional Authority in Cambodia (UNTAC) administered Cambodia, yet each party still retained control over their own areas and population,[888] threatening the peace and making continued clashes and mistrust between the SOC and the Khmer Rouge inevitable. Therefore, it can be concluded that mistrust made all Cambodian parties fearful of losing their bargaining power. The competition for power remained as each faction tried to benefit from the peace process.[889]
In spite of this mistrust, each of the factions were politically willing to make peace possible. Throughout many negotiations and talks, the prince Sihanouk and HE HUN Sen willingly granted concessions to each other so that deadlock could be settled. For instance during the meeting in France in 1987, the prince showed his support for H.E. HUN Sen by saying that it was the right decision to help each other as neighbours.[890] His soft political stance towards the PRK largely contributed to successful peace negotiations and the adoption of a new Constitution in 1993.
From the SOC side, there were a number of constitutional amendments; which were seen as a concession to other Khmer factions. In December 1991, Article 4 of the SOC Constitution was amended to read ‘the State of Cambodia adopts multi-party system’.[891] From a regime that changed from a single party system to a multi-party one, this was a major concession that gave political legitimacy to other parties, and this demonstrated the SOC's willingness to share power with other factions. So, the SOC made a big contribution to the peace-finding process for Cambodia.Likewise, each faction was also willing to share power, too. In 1991, prince Sihanouk and HE HUN Sen demonstrated their power-sharing commitments although the disagreements on the prince's role in the SNC and the SNC’s composition remained.[892] Through power-sharing, all political factions agreed to form the SNC, comprised of the prince Sihanouk serving as chairman and 11 other members, six of whom were from the SOC (renamed from the People’s Republic of Kampuchea) and five of whom were from the other factions.[893]
During this time, Khmer Rouge caused enormous trouble for the peace negotiation process and demobilisation phase, resulting in violence, riots and military clashes.[894] Prince Sihanouk and other factions seemed to condemn Khmer Rouge for its actions, as evidenced by the public declaration that Khmer Rouge did not want peace.[895] The prince seemed convinced that isolating Khmer Rouge was helpful for the peace negotiation process, and this closed the gap between the prince and the SOC, which bode well for the further steps in the process.
In short, the internal factor concerning the peace-finding process committed by prince NORODOM Sihanouk and HE HUN Sen was considered to be the crucial step in maintaining the Paris Peace Agreement in 1991 and this Agreement is the main instrument which drove the constitution-making in 1993 and Cambodia’s development.
As a result, prince NORODOM Sihanouk and HE HUN Sen were both historical key actors in finding peace for Cambodia.ii. The External Political Factor
Apart from the aforesaid internal political players, who were the catalyst for the peace-building process, it was also now possible for the external powers to discuss the abandonment of their long-held political ambitions to establish their sphere of influence in Cambodia. In the aftermath of the Khmer Rouge regime, there was a deep mistrust among Cambodian factions - the Phnom Penh government backed by Vietnam and the Soviet Union and the exile coalition government backed by the USA, China and ASEAN.[896] These foreign countries, driven by their own interests, were behind the Cambodian conflict, and they were also believed to be the key players in the Cambodian peace negotiations. In the late 1980s, the international political atmosphere changed dramatically,[897] forcing external actors to adjust their political attitudes towards Cambodia’s conflict. Author Frederick Z Brown posited, ‘[...] these powers had concluded that the game was no longer worth the candle’.[898] This paved a favourable way for peace-building in Cambodia. From the Soviet side, when Mikhail Gorbachev came to power in March 1985, he changed Soviet foreign policy, which had been adopted during the Cold War.[899] Additionally, since Gorbachev worked on rebuilding the country’s economy and normalising relations with China,[900] Gorbachev agreed with Deng Xiaoping that Cambodia should reach national reconstruction.[901] Thus, it pressurised all Cambodian factions in the conflict to negotiate for peace.
On top of that, China believed that Vietnam was pressured by the Soviet Union to withdraw its troops from Cambodia.[902] Upon the Vietnamese invasion of Cambodia and the total defeat of the Khmer Rouge in 1979, Vietnam was plunged into a war on two fronts - the war in Cambodia and the northern war with China.[903] In addition, economic sanction and international isolation were imposed upon Vietnam shortly after the invasion.[904] Thus, Vietnam encountered both economic and political pressures throughout the entire decade until Doi Moi economic policy was approved by the sixth Party Congress in December 1986. The policy was a series of policy changes to reduce international isolation, including a Foreign Investment Law in 1987, a declaration to withdraw troops from Cambodia by the end of 1989, and reconciliation with China, the USA, and the ASEAN allies.[905] With this new economic policy, Vietnam abandoned the Stalinist Planned Economy and followed a Market-Oriented System, and promised to withdraw its troops from Cambodia by 1990.[906] As the withdrawal was almost complete by September 1989, the Vietnamese government also tried to normalise its relations with China, ASEAN, and the USA by satisfying their demands in the Cambodia conflict.[907] Therefore, Vietnam's political and economic changes provided Cambodia with a favourable political environment for Cambodian factions to negotiate for peace.
The decade-long conflict resulting from the proxy war came to an end when the communist countries, such as the Soviet Union and Vietnam, altered their political positions. The negotiations for peace would never come to fruition without the external powers' agreements, as evidenced by a failed attempt to secretly negotiate between the prince Sihanouk and H.E. HUN Sen due to the objection from China and Thailand.[908] With the political dynamics among great powers, the Khmer Rouge and the PRK were forced to agree to negotiate to bring peace, or they could be left in isolation from their allies.[909] Cambodian factions, in particular the PRK and the coalition government, negotiated for compromise until the second session of the Paris International Conference on Cambodia (PICC) successfully produced the Paris Peace Agreement, which served as the fundamental principles for the 1993 Cambodian Constitution.
In short, the external factor jointly drove the constitution-making in 1993. All the concerned foreign countries,[910] namely Australia, Brunei Darussalam, Canada, the People's Republic of China, the French Republic, the Republic of India, the Republic of Indonesia, Japan, the Lao People's Democratic Republic, Malaysia, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, the United States of America, the Socialist Republic of Vietnam and the Socialist Federal Republic of Yugoslavia, became the signatories of the Paris Peace Agreement and supported the Comprehensive Cambodian Peace Agreement which was signed on 23 October 1991 ending the two decades of conflict in Cambodia. The Agreement consisted of four parts:
1. The Final Act of the Paris Conference on Cambodia.
2. Agreement on the Political Settlement of the Cambodia Conflict.
3. Agreement Concerning the Sovereignty, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia.
4. Declaration on the Rehabilitation and Reconstruction of Cambodia.
These aforesaid signatory countries together helped to established important provisions to promote national reconciliation and to ensure the exercise of the right of self-determination of the Cambodian people through the elections in 1993, which was another crucial step in establishing the Constituent Assembly for drafting the 1993 Constitution.
B. Social Factors
The social situation in Cambodia during the period of the collapse of the Khmer Rouge to the establishment of the 1993 Constitution could be compared to a seriously ill patient, who is in need of urgent medical attention.[911] The social infrastructure was entirely destroyed during the period of the Khmer Rouge; hence the PRK's commitment to rehabilitating the social infrastructure by starting again at the beginning. In addition to this huge task, the PRK was faced with two main obstacles - the sanction from the international community as the external factor on the one hand; and the social rehabilitation along with the fighting against the return of the Khmer Rouge as the internal factor on the other hand. In short, Cambodia was by that time challenged with this unhealthy social environment.
This unhealthy social environment was the product of the political instability of the last two decades. Cambodia was known as the ‘Oasis of Peace' from 1955 to 1970. Unfortunately, Cambodia was plunged into social and political turmoil following the coup d'etat in 1970. This significant event brought about nationwide social instability. From 1970 to 1975, people migrated into Phnom Penh city in order to escape the violent battles in the provinces, which made the city's population increase dramatically. The social instability, along with the serious corruption seen within LON Nol's five-year rule, created a huge social problem for Cambodia. Cambodian people expected to once again enjoy the peace which they had experienced before the 1970s; however, no one would have ever imagined that, later, during the Khmer Rouge regime from 1975 to 1979, mass genocide would occur within this society.[912] Also, after the collapse of the Khmer Rouge in 1979, Cambodia was embattled, which had a huge impact on Cambodia’s social development. People were still concerned about being robbed and killed by Khmer Rouge soldiers[913] as they conducted guerilla warfare.
This aforesaid social instability was the reason behind the Cambodian people’s desire for national reconciliation. Having acknowledged the goodwill of the people, the leaders of the PRK, especially H.E. HUN Sen and the leaders of the triple Coalition Government, especially prince NORODOM Sihanouk, made it their intention to initiate the peace talks. Finally, all the factions successfully negotiated the Paris Peace Agreement in 1991, the establishment of the SNC, and the universal election in 1993 for establishing the Constituent Assembly.
However, the universal election in 1993 did not bring about entire peace in Cambodia because the Khmer Rouge faction[914] refused to join the 1993 election organised by UNTAC; hence it became the guerilla, which acted against the legal government. The Khmer Rouge had committed the proxy wars against the Cambodian people until 1998; hence social stability remained the central issue for the Cambodian people. Samdech Techo HUN Sen finally dismantled the Khmer Rouge’s political organisation and brought the civil war to an end by initiating and implementing the 1998 Win-Win policy. With this policy, he united Cambodia’s territory and developed the country. The Win-Win policy created a strong political system of government which has facilitated constitutional achievement in Cambodia since its implementation.
In short, after achieving the Paris Peace Agreement in 1991, Cambodia immediately needed to rehabilitate the social development and the infrastructure along with other development goals. It was crucial for Cambodia to establish the core guidelines enshrined in the Constitution for this social rehabilitation. Thus, the social factor was among other key factors for driving the constitution-making in 1993.
C. Economic Factors
After the collapse of the Khmer Rouge in January 1979, the PRK successfully occupied a major part of Cambodia’s territory, but it was economically and politically isolated because this regime was accused of illegitimacy with the Vietnamese’ troop presence in Cambodia. As a consequence, the PRK suffered economic hardship during its decade-long rule of Cambodia. The survival of the people was the main priority. From 1979 to 1989, the PRK government prioritised rice supply and self-sufficient economic policy amid the lack of human capital and physical infrastructure, and the state's main purpose was to reduce nationwide hunger and focus on food security.[915] However, rice production was limited due to challenging weather and unfavourable climate conditions in 1983 and 1985, hence rice and agricultural production at this time was lower than the targets set by the PRK government.[916] As a result, in 1984, the PRK convened a meeting to address the rice crisis by creating the Solidarity Group (Krom Samaki), which was classified on three levels:
1. the fully collectivised level that did not allow any private property and that work capacity determined the distribution of production;
2. the second level group which worked for the purpose of family subsistence; and
3. the third level group which were the ‘associations of independent, land- tenured family farms'.[917]
In 1986, 97 per cent of the rural population was made up of 100,000 Krom Samaki solidarity groups, each of which were comprised of seven to 15 families.[918] Aside from the Krom Samaki initiative, the PRK also established the Five-Year Plan for 1986-1990 so as to exercise control of farm products in 198 5.[919] With this Plan, the Government encouraged people to sell rice to the state, while selling goods to farmers was considered the state's responsibility towards the people.[920] With all of these economic policies, the country's economy continued to struggle, perhaps owing to economic and political isolation. In the late 1980s, the change in the economic policies of the Soviet Union and the Eastern Bloc, which the PRK sided with, resulted in difficulties reaching procurement targets in the country. Thus, on 7th February 1986, the PRK Government amended Article 12 of the 1981 Constitution by including another type of economy - the private sector - into the provision as a response to the economic failure. In July 1988, the new Article 12 was amended further to introduce a diversified state economy, moving the country towards a free market system from the previous socialist regime. Following the second amendment of the 1981 Constitution, the third amendment was again initiated on provisions relating to citizens' private property, such as houses and land. In spite of efforts to tackle economic hardship, the economic and social isolation imposed by the international community made it difficult for Cambodia to recover.
Moreover, the economic failure not only posed economic issues, but also divided the PRK into two conflicting groups - the conservatives who opposed the free market system and the progressives who supported the economic change.[921] Therefore, the PRK leader, HE HUN Sen, was convinced that peace negotiations in order to lift international isolation was the best option, instead of risking the country's economy and the party's internal unity.
When the Soviet Union collapsed, Cambodia was faced with inflation at 200 per cent as 75 per cent of Soviet aid was suspended in 1990.[922] Rubber and wood exports also decreased, and the shortage of equipment, mechanic spare parts, agricultural fertilizers, and gasoline made domestic economic production impossible.[923] The annual income of the SOC (PRK) was only 50 million dollars a year, while the Khmer Rouge earned up to at least 60 million dollars a year with another 100 million dollars in savings thanks to the extraction of natural resources in Pailin.[924] When the peace agreement was signed in 1991, followed by the nationwide election in 1993, the 1993 Cambodian Constitution was successfully approved thanks largely to the economic conditions of the country. The economic failure made all Cambodian factions in the conflict realise that none of them could survive if they did not work for peace, which needs to be guaranteed by a Constitution.
In short, learning from the economic hardship for more than a decade as prescribed above, all Cambodian factions, especially the SOC, clearly understood that the modernisation of Cambodia's economy towards the free market system would be the best resolution in bringing Cambodia out of this economic hardship, on the one hand, and for integrating Cambodia into the world economic system, on the another. As a result, it was imperative that all Cambodian factions worked together quickly to establish one Constitution, including a chapter on the economy, particularly the free market system.
II.