The Substance of the 1993 Constitution

The 1993 Cambodian Constitution was established by a strong will of the Cambodian people, who expressed it in the Preamble: ‘We, the Khmer people, [...] in virtue of this unshakable will, we inscribe in the Constitution of the Kingdom of Cambodia, as follows [...]'.^[949] The substantive contents of the 1993 Cambodian Constitution are: The Preamble; The Sovereignty (Chapter 1); The King (Chapter 2); The Rights and Duties of Khmer Citizens (Chapter 3); The Political Regime (Chapter 4); The Economy (Chapter 5); The Education, the Culture, and the Social Affairs (Chapter 6); The National Assembly (Chapter 7); The Senate (Chapter 8-new); The Congress of the National Assembly and the Senate (Chapter 9-new); The Royal Government (Chapter 10-new); The Judiciary (Chapter 11-new); The Constitutional Council (Chapter 12-new); The Administrative Organisation (Chapter 13-new); The National Congress (Chapter 14-new); The Election Organization (Chapter 15-new-2); The Effect, the Revision and the Amendment of the Constitution (Chapter 16-new-2); The Transitional Provisions (Chapter 17-new-2), with seven annexes attached.

• Value 1 - The constitutional monarchy: Cambodia is a Kingdom where the King shall fulfill His functions according to the Constitution and the principles of liberal multi-party democracy and the King shall reign but doesn't govern and shall be the head of state for life.^[950]

• Value 2 - The fundamental rights: The Kingdom of Cambodia recognises and respects human rights as enshrined in the United Nations Charter, the Universal Declaration of Human Rights and all the treaties and conventions related to human rights, women's rights and children's rights.^[951]

• Value 3 - The liberal multi-party democracy: The Kingdom of Cambodia adopts a policy of liberal multi-party democracy.^[952]

• Value 4 - The separation of power: The powers shall be separated between the legislative power, the executive power and the judicial power.^[953]

• Value 5 - The market economy system: The Kingdom of Cambodia implements the market economy system.^[954]

According to the aforesaid values, the 1993 Cambodian Constitution adopted not only the modern principles from the Western model, but also Khmer values that are found in its history, culture, tradition, and religion.

The aforesaid conclusion expresses the reality of the constitutionalism in Cambodia of the modern age. The merger of these two values contained in the 1993 Cambodian Constitution is an expression of the unique model that is suitable for the socio-political reality in this country. This merger also resulted in social and political harmony for Cambodian society. The President of the Constitutional Council also accepted that implementing the pluralist concepts and the plural­ist forms in the Cambodian Constitution could lead to some challenges, which the Constituent Assembly could not beforehand predict. However, all concerned actors should agree that the 1993 Cambodian Constitution is the longest surviving constitution among the six constitutions of this country. It is actively beneficial for peace, stability, and development in Cambodia.

Theorists, practitioners, and other concerned key actors from local and inter­national communities may have different points of view on the implementation of constitutional values in Cambodia. The different points of view concerning Cambodian reality may focus on:

i. the implementation of liberal-multi democracy at both national and local levels;

ii. the promotion of human rights;

iii.the quality of the separation of power;

iv.the question of the rule of law; and

v. other constitutional issues concerning the constitutional revisions and amendments including the establishment of additional constitutional law in 2004.

Thus, these different points of view over the aforesaid issues result in a blurred image on the constitutional achievements of Cambodia over nearly three decades.

Responding to the above problems, the President of the Constitutional Council shared his opinion that one could not deny what had already happened in regards to the constitutional implementation. However, all concerned key actors should each constructively find a resolution to the challenges which have occurred. Finally he concluded, with his long-term vision, as follows:

[...] In order to build prosperous nation of Cambodia, we strongly believe in only constitutional values from the modern constitutionalism, which can guarantee the citi­zen’s dignity, the respect for human rights, and the real promotion of the rule of law. However, it is not a so-called short distance for us to reach this goal, and we have to continue our walk towards on a meander road, hence we really need a suitable time provided with our patience and commitment [...].^[956]

An analysis of the values in the 1993 Cambodian Constitution should not just be based on modern values, but should cover all aspects of Cambodian reality. Thus, this analysis of the values shall use an accepted and suitable measurement, which is a harmonised measurement between Western values and Cambodian values.

It should be accepted that the Paris Peace Agreement of 1991 did not strictly guide the Constituent Assembly of 1993 to write down the provisions in the 1993 Constitution in a narrow way. Thus, the Constituent Assembly had much freedom in its goal to create a Constitution that was receptive to Cambodian society’s needs. Moreover, this Constituent Assembly had full freedom to make a better draft of the Constitution. The minutes of the plenary session of the Constituent Assembly of 1993 illustrates this.

According to Annex 5 of the Paris Peace Agreement, six principles were required to be included in the 1993 Cambodian Constitution:^[957]

i. the Constitution shall be the supreme law of Cambodia - this principle is stated in article 152 (new) (two) (former article 150 (new));

ii.

iii. the principle of sovereignty, independence, neutrality, and national unity - this principle is derived in article 1, article 2, article 3, and article 52;

iv. the principle of liberal multi-party democracy - this principle is stated in article 1, article 34 (new - one), article 51 (new), and article 76 (new);

v. the principle of independence of the judiciary - this principle is stated in article 51 (new), article 128 (new) (former article 109); and

vi. the principle of a two-third majority for adopting the Constitution - this principle is stated in article 153 (new) (former article 151 (new)).

Moreover, the Paris Peace Agreement required the respect of the outsiders. All foreign countries and parties to this Agreement must respect the principle of non-interference into the internal affairs of Cambodia as stated in article 8 and article 18 of the Agreement. Article 1 (point 2-c), article 2 (point 1 and point 2-b) and article 4 of this Agreement also required the respect for sovereignty, inde­pendence, integrity, and inviolability of territory, neutrality and national unity of Cambodia. These principles are included in article 53 of the Constitution, oath for the National Assembly as stated in Annex 5, oath for the Government as stated in Annex 6, and oath for the Senate as stated in Annex 7 of the Constitution.^[958]

For an analysis of the values in the 1993 Cambodian Constitution, according to the aforementioned requirements of Annex 5, there are many constitutional provisions created for the Constitution, which were outside the scope of Annex 5's agreement. This shows that the Constituent Assembly of 1993 had more freedom and opportunity to include in the Constitution what Cambodian society needed. Those constitutional provisions characterised Cambodian values, which will be discussed in the following paragraphs.

The provisions concerning the monarchy were enshrined in the articles of Chapter 1 on the sovereignty and Chapter 2 on the King, for example, the motto of the Kingdom of Cambodia is Nation, Religion, King (article 4). The King shall embody the symbol of national unity and continuity (article 8). The re-installation of the monarchy in Cambodia was not a coincidence; it was the unshakable will of the Cambodian people who were intent on bringing back the throne and the King, particularly prince NORODOM Sihanouk (well known as the King father, Samdach Oeuv), who had been popular and beloved among the majority of Cambodian people. Thus, the Constituent Assembly had to respect the goodwill of the Cambodian people at this point. Further, the Cambodian people, ever since the collapse of the monarchy in 1970, had experi­enced many political regime changes, and found that no regime had been better than the monarchy. Finally, Cambodian people, through their representatives in the Constituent Assembly, adopted the constitutional monarchy in the Constitution, which made Cambodia the only nation in the world to reinstate its monarchy after its collapse.

The provisions also concerned freedom of religion and belief, which were enshrined in the articles of Chapter 3 on the rights and duties of the Khmer citizen. For example, Buddhism is the state religion, and Khmer citizens of both sexes have the full right of belief (article 43). The provision concerning the posi­tion of Buddhism as the state religion is a legacy of the first Constitution of 1947 (article 8). Most elites in the Constituent Assembly of 1993 considered the large number of Buddhists in Cambodian society (around 94 per cent) and the crucial role of Buddhism in the society and culture of Cambodia in the last thousand years.

The Constitution also contains provisions concerning the culture and tradi­tion of Cambodian society, enshrined in articles in Chapter 3 on the rights and duties of the Khmer citizen and Chapter 6 on the education, the culture, and social affairs.

As a result, the provisions concerning the monarchy, Buddhism, and family responsibilities that are set out in the aforesaid articles in the 1993 Cambodian Constitution are not the modern values from the Western world, they are the local values of Cambodian society. The Paris Peace Agreement of 1991 neither allowed nor prohibited the Constituent Assembly to enshrine those provisions into the new Constitution of Cambodia.^[959] However, the constitution-makers of 1993 bravely did so because they really understood the important demands of Cambodian soci­ety and its people.

However, one should have a quick look at the interaction between the liberal multi-party democracy and the constitutional monarchy, in today's Cambodian society. The Cambodian monarch has never performed his duty contrary to the principle of the liberal multi-party democracy and the constitutional monar­chy. The Cambodian monarch has never been involved in politics. It is expected that the Cambodian monarch shall be a symbol of the nation and have respect for the Constitution and the policy of liberal multi-party democracy. In short, the Cambodian monarch has performed his duty well in accordance with the Constitution and the people's will, as he promised when he took an oath before coming to the throne: ‘I do swear to fulfill my duty in consistency with the consti­tution and all laws of the Kingdom, and do commit myself to be beneficial for the people and the nation'.^[960]

The liberal multi-party democracy and the monarchism implemented in Cambodia today have harmoniously supported each other. They do not contra­dict each other and the constitutional monarchy of Cambodia is very democratic. The provisions in the 1993 Cambodian Constitution concerning the King clearly proves this argument. The Cambodian monarch reigns, but does not govern. The King has no rights to assign the dignity of leading the council of ministers (but upon the proposal of the President of the National Assembly), he has no rights to veto draft and proposed laws, he has no rights to directly lead the armed forces, he has no rights to appoint his heir to the throne (instead, he proposed form­ing the Crown Council to carry out this duty), and he has no rights to preside over sessions of the council of ministers. Also, the rights to grant pardons shall be proposed by the Prime Minister. Furthermore, the consort of the King shall not engage in politics. And the provisions stating that the King reigns but does not govern absolutely cannot be amended.

IV.