Celebration comes with threat as Cambodia’s Constitution turns 24

Constitutional Council head Im Chhum Lim marks the 24th anniversary of the Constitution yesterday. Heng Chivoan

Celebration comes with threat as Cambodia’s Constitution turns 24

Phnom Penh Post | 28 September 2017

Senior government officials yesterday gathered to celebrate the 24th anniversary of the adoption of the Kingdom’s Constitution, lavishing praise on the Constitutional Council – while simultaneously appearing to threaten legal action against those who question the body’s independence or decisions.

Speaking to reporters at yesterday’s event, council member and spokesman Uth Chhorn seemed to suggest that independent assessments of constitutionality and the questioning of the council’s rulings were a violation of the body’s rights. 

“If they [the analysts] say something that violates someone’s rights, the law will be the one to decide,” he said. “Do you know what the Criminal Code is? If they violated your rights and insulted you, you wouldn’t be happy. In order to make amends, what would they have to pay for the damage to your reputation? It’s the court’s decision.” 

But despite officials’ insistence that the body remained impartial, human rights groups and legal advocates criticised the organisation as being largely under the control of the ruling Cambodian People’s Party.

Legal analyst Sok Sam Oeun said the council has rarely – if ever – gone against the interests of the ruling party, largely because the CPP controls the National Assembly and the courts. 

“It’s hard to reform these constitutional bodies and make sure they’re independent enough and separate them from political parties,” he said.

Indeed, the council’s president, Im Chhum Lim, is a permanent member of the CPP’s Central Committee. 

Established by law in 1993, the Constitutional Council is made up of nine members – three appointed by the National Assembly, three by the Supreme Council of Magistracy and three by the King. 

When asked to do so, the council assesses the constitutionality of new and existing laws and amendments. However, one of the council’s most critical decisions – a 2004 ruling allowing the National Assembly to amend the Constitution by a simple majority, as opposed to a two-thirds vote – actually served to threaten the integrity of the charter itself, according to Sam Oeun. 

“The council failed to protect the strength and rigidity of the Constitution,” Oeun said. 

Since then, the body has made a number of controversial decisions. In 2014, the council green-lit a trio of contested “judicial reform” laws that experts said significantly tightened the executive branch’s control over the courts. 

A year later, the council approved a hotly debated NGO law granting ministries broad powers to dissolve organisations for certain vaguely defined violations, including not remaining politically “neutral”. 

In March, the council also ruled in favour of widely criticised amendments to the Law on Political Parties, giving the government sweeping powers to suspend or dissolve political parties over criminal convictions of a party leader. The changes forced former opposition leader Sam Rainsy – who had a slew of politically tinged convictions to his name – to leave the party.

The council also approved a second round of changes to the same law forbidding parties from using the materials and likeness of convicted criminals. CPP officials acknowledged at the time that the changes were expressly targeted at further sidelining Rainsy. Now, with current opposition leader Kem Sokha in detention awaiting trial on “treason” charges, many have speculated the law could be used to dissolve the CNRP ahead of the 2018 election. 

However, in a speech at yesterday’s celebration, CPP lawmaker Pen Panha defended many of the controversial laws and said the council helped Cambodia move towards “the implementation of liberal, multiparty democracy” as stated in the Constitution’s preamble. 

Chhorn, the spokesman, also defended the council as an “independent and neutral” institution. Asked whether the arrest of Kem Sokha violated his constitutionally protected parliamentary immunity, he said that the council cannot interpret the Constitution until it received an official request to do so. 

Piseth Duch, of the Cambodian Center for Human Rights, praised some of the council’s decisions on election complaints and international treaties, but said civil society organisations remain “widely disturbed” by the Law on Political Parties and judicial reform laws. 

“The council could be improved by making some changes to the mandate of the council to increase its activeness and to allow it to act on its own initiative to defend the Constitution,” he said. 

Human Rights Watch’s Phil Robertson said in an email that the council had “failed miserably” in its duty to protect Cambodians over the past 24 years. Constitutional protections for Cambodians “exist on paper but not ineveryday lives of Cambodians”, he said. 

But amid the celebrations for the document in which Cambodians’ rights are enshrined, some officials took the opportunity to remind the public where their rights end. 

Prum Sokha, a secretary of state at the Ministry of Interior who also holds a senior position within the CPP itself, said in a speech that his ministry would “take legal action to stop incitement of violence through protesting,demonstrations and illegal riots”. 

Then, parroting language increasingly directed at the opposition, he added the government was prepared “to prevent subversion and attempts to overthrow the royal government via colour revolution”.