5.

Separation of Power under Cambodian Constitution

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5. Separation of Power under Cambodian Constitution
INTRODUCTION
After the agreement on the comprehensive settlement of the Cambodian conflict and the national elections of
the peoples representatives to the National State Assembly supported by the United Nations Transitional
Authority in Cambodia (UNTAC), the Constitution of Cambodia adopted a policy of liberal democracy and
pluralism. Cambodia became a constitutional monarchy. The Cambodian people are the masters of their own
country.
The separation of powers is the most important among the fundamental principles of democracy.
Why does a democratic society need the separation of powers? What is it for?
The process of democracy in Cambodia began in 1946. The first election of Cambodia was held in that year.
The first Constitution of Cambodia was adopted in 1947. However, throughout the Cambodian history
Buddhism has had an influence in society. The Buddhist teachings are basically egalitarian and democratic.
OVERVIEW OF PAST CONSTITUTIONS
The Constitution of 1953 - 1975
In the article 1 of the Constitution (1953-1970) Cambodia was recognised as a monarchy, and all powers
were derived from the king (Article 21). The legislative, executive and judicial powers were exercised in the
name of the king (Articles 22, 23 and 24). The National Assembly alone should pass the laws. It might not
delegate this right (Article 65). The judicial organisation should be regulated by a special law (Article 113). A
high council of judiciary should ensure the discipline and independence of judges in accordance with the law.
This council should be presided over by the law (Article 114).
The Constitution of 1970 - 1975
Cambodia was recognised as an independent democratic and social republic. Its motto was "liberty, equality,
fraternity and social republic." The Constitution affirmed the principle of the government of the people, by the
people and for the people. All powers should be derived from the people (Article 3). No one should be both a
member of Parliament and a member of any other institution of the republic established by the Constitution
except the High Court of Justice (Article 50). The Parliament should make the laws (Article 64). Justice should
be administered in the name of the people according to a procedure fixed by the law (Article 80). The judicial
branch should be independent. It should be the guerdon of impartiality. It should protect the rights and
freedoms of the citizens. It should be vested in the Supreme Court and lower courts (Article 81). The
Supreme National Council should ensure the independence and discipline of the branch (Article 91).
The Constitution of 1976 - 1978
The State of Kampuchea was an independent, unified, peaceful, neutral, non-aligned, sovereign and
democratic State enjoying territorial integrity. The State of Kampuchea was a State of the people, workers,
peasants and all other Kampuchea labourers (Article 1). The peoples representatives assembly is responsible
for legislation and defining the various domestic and foreign policies of the Democratic Kampuchea (Article 7).
The administration (executive) was a body responsible for executing the law, the political line and all activities
inside and outside the country (Article 8). Justice was administered by peoples courts, representing and
defending peoples justice, as well as defending the democratic rights. The justices should be chosen and
appointed by the National Assembly (Article 9).
The Constitutions of 1979 - 1993
The National Assembly was the supreme organ of State power and the sole legislative organ (Article 45). The
government was responsible to the National Assembly and reported its work to the National Assembly (Article
64). The objectives of judgement and application were to protect the power of the people and democratic
legality, to preserve public security and social order, to protect public property and the rights, freedoms, life
and legal interests of citizens (Article 79).
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The Constitution of September 1993
The National Assembly (Articles 76-103), the Royal Government (Articles 99-108), the judiciary (Articles 109-
116) - the legislative, executive and judicial rights - shall be separate (Article 51).
The paragraph 4 of article 51 of the Constitution of the Kingdom of Cambodia states: "The legislative,
executive and judicial powers shall be separate." But during the first mandate, those three branches were not
separated and the supreme power was in the hand of the ruling party. Several institutions stated in the
Constitution were not established until close to the elections of 1998. Besides, Cambodia was close to have a
new civil war after the coup in July 1997.
We will study more deeply whether there is a separation of power under the Constitution and how to
democratise in
Cambodia.
THREE BRANCHES OF GOVERNMENT
The Executive
Although the king is the Head of State for life and shall reign, he shall not govern. So, he does not involve
with the executive (Article 7). The executive is the Council of Ministers which is the Royal Government of
Cambodia. It shall be led by one prime minister (Article 99). Each member of the Royal Government shall be
individually responsible to the prime minister and the National Assembly for his/her own conduct.
The Legislature
Under the Constitution, the National Assembly is the legislative body (article 90) and the legislative power
shall not be transferable to any other organ or individual. Article 96 of the Constitution says that "the deputies
have the right to put a motion against the Royal Government. The replies shall be given by one or several
ministers depending on the matters related to the accountability of one or several ministers. In the case
concerns the overall policy of the Royal Government, the prime minister shall reply in person. The explanation
shall be provided within seven days after the day when the question is received."
However, during the four years of the last term, no motion was submitted by any deputy of the National
Assembly.
The Judiciary
Under article 109, the judiciary is recognised as an independent power. All judges are under supervision of
the Supreme Council of Magistracy. The Supreme Council of Magistracy shall take disciplinary action against
any delinquent judges. The Supreme Council of Magistracy is an independent body.
Relationship Between Executive And Legislature
Although Article 51 of the Constitution states that all three branches of the government shall be separated,
other articles (ex. Article 100) state differently causing no clear separation of power.
One person can be a member of both the Royal Government and the National Assembly:
In the last mandate, all members of the Royal Government were members of Parliament, so there was no
clear separation between the executive and the legislature. And the National Assembly could not hold the
parliamentary sessions because of lack of quorum.
No fair and just decision:
Most draft laws and decisions of the executive were approved by the National Assembly because it was the
same group of politicians who controlled both the bodies. It was like that they suggested themselves to get
approval from themselves.
No debate in National Assembly:
There was not much debate raised by members of Parliament of one political party on any draft laws
submitted by ministers from the same party. By such practices, the people feel that the members of
Parliament are not representatives of the people but representatives of their own political parties.
No limitation of premiership candidacy:
There is no provision to limit the candidacy of prime minister. That is why one person can stand as the
candidate of premiership for his party forever. He/She may become a dictator, if the election cannot be
conducted freely and fairly.
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Relationship Between Executive And Judiciary
Article 113 of the Constitution states that "the king shall be the guarantor of the independence of the
judiciary, and the Supreme Council of Magistracy shall assist the king in this matter." It means that the king
has power to supervise the judiciary and the Supreme Council of Magistracy shall assist him to control the
judiciary. But after 1993, the king has not done anything at all with the judiciary, and the Supreme Council of
Magistracy has been just established. Therefore, the Ministry of Justice still controls the judiciary.
Even the Supreme Council of Magistracy was established in early 1998, the Law on Statute of Magistrates has
not yet been passed. Therefore, the Supreme Council of Magistracy still cannot function. That is why we can
see that in March 1998 the Ministry of Justice suspended three judges of the Court of Appeal because they
dismissed an accused.
At present, a draft of the Law on Statute of Magistrates has completed. However, it gives power back to the
minister of justice. It will rob the powers from the king and the Supreme Council of Magistracy, and the two
will become only a rubber stamp for the minister of justice.
Supreme Council Of Magistracy
The Supreme Council of Magistracy has nine members: the king or his representative, representative of the
Ministry of Justice, president of the Supreme Court, president of the Appeal Court, chief prosecutor of the
Supreme Court, chief prosecutor of the Appeal Court and other elected judges.
This provision is drafted during the time when Cambodia lacked human resources. It is not good to have
representative of the Ministry of Justice, that is the executive, to involve in disciplining the magistrates.
As other members of the council may be the bosses and colleagues of a judge in problem, it is difficult for
them to discipline or control that judge. It is better to have other people who are from outside of the duties,
such as retired judges, to be members of this council.
Constitutional Council
The Constitutional Council has the duty to safeguard respect for the Constitution, to interpret the Constitution
and the laws passed by the National Assembly, and the right to examine and decide on contested cases
involving the elections of National Assembly members (Article 117). According to these duties, this council
requires its members with high education in law and experiences in legal field, in particular judicial
experiences.
Article 119 of the Constitution mentions the qualification of the council members, such as higher education
degree in law, but which also covers other fields such as administration, diplomacy or economics.
Police And Armed Forces
Referring to the coup in July 1997, it is better to have neutral police and armed forces. At present the police
and armed forces are bel nged to the political parties. According to the Law on Political Party, police and
armed forces can be members of political parties. According to the Law on Election, any policeman, soldier or
judge who joins a political party can have special leave for the period of electoral campaign and the mandate
of the National Assembly, but he/she can go back to his/her job after the electoral campaign or the mandate.
Application Of Separation Of Powers Under 1993 Constitution
The Constitution is recognised as the supreme law of the country. The representatives elected by the people
will represent the entire Cambodian people and not just their own constituencies. Members of the National
Assembly are chosen for a term of five years. They have the duty to adopt the laws.
The executive has the duty to rehabilitate and reconstruct the nation, such as public buildings, schools,
pagoda roads, bridges and the like.
As for the judiciary, there has been some improvements of the process as compared to procedures that
existed before 1993. However, since the coup in July 1997 there is a definite setback. Several cases in recent
years show direct political control of the judiciary.
A review of the last few years shows many shortcomings of the operation of separation of powers in
Cambodia. Very few debates have been taken place in the National Assembly. The assembly often becomes a
means to stamp approval to agreements which have already been made behind the scenes. Such agreements
are often coerced, and bitter struggles take place outside the assembly for achieving such agreements. People
get very little chance to be informed of and to participate in the discussion of the proposed laws. A tradition of
parliamentary debate has not progressed very much. In Thailand, there is a much more vigorous tradition of
parliamentary debate.
Cambodia is governed more by way of decrees and sub-decrees than by laws passed by the legislature. While
the decrees come from the head of government, sub-decrees come from various ministries. By this way the
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executive has taken over the powers of the legislature in violation of the Constitution. These decrees and sub-
decrees should not have any validity as law. There is no legality of these decrees and sub-decrees for them to
be enforced by any authority. They do not deserve the compliance by any of the subjects.
The executive has suffered from over-centralisation and secret process of decision-making with very little
transparency. The armed forces are controlled by an arbitrary manner and not according an organised and
orderly command structure. The armed forces are often used to influence the political process.
The development of national institutions have suffered from the arbitrary nature of exercise of executive
power. The development of institutions require demarcation of powers and functions.
The executive even engages in the interpretation of laws in cases before court. In this way the executive has
taken over the function of the judiciary in violation of the Constitution. Such interpretations of the law by the
executive are unconstitutional and do not deserve the respect of the subjects.
The judiciary has not been allowed to be independent. As the higher court does not function in an
independent manner, there is no judicial organ to interpret the law. There is a major obstacle to the
development of the democratic process. The qualifications of judges are low, and the higher judiciary do not
possess the legal qualifications and judicial experience necessary for performing their functions. Besides, the
judges are poorly paid. The possibility of the existence of a double payment nullifies the possibility of the
judicial independence. The widespread accusation of corruption is not helpful for creating credibility for the
judiciary. The overreaching influence of the Ministry of Justice remains an obstacle to creating a climate for
the development of an independent judiciary.
Conclusion
In a democratic society all powers belong to the people. The people exercise their powers through the
national assembly, the government (executive) and the judiciary. The Constitution of 1993 specifically
mentions the separation of powers. There exists many reasons for the separation of powers. The checks and
balances of different holders of power are to counter against abuse of power. In this democracy differs from
autocracy.
Recommendations
1. Limit the mandate for prime minister: One person can stand for candidacy of prime minister only for two
mandates. Such limitation can help prevent dictatorship.
2. No one can be members of both the executive and the legislative organs: If one parliamentarian has been
chosen as a minister of the Royal Government, he/she should resign from Parliament.
3. The king should be more active in the judiciary: It should be understood that in accordance with the
Constitution the king is the one who guarantees the independence of the judiciary. However, now the king
himself and other elite think that the king is only a symbol for the independence of the judiciary. It is the time
that the king should be active and assist the judiciary to be independent.
4. The Ministry of Justice should not interfere with the Supreme Council of Magistracy: The draft of law on
Statute of Magistracy should be changed, and the Ministry of Justice should not involved in decisions of the
Supreme Council of Magistracy.
5. Political parties should stop appointing judges: As we know that all judges before 1993 were appointed by
the communist party. Recently, about 42 new judges trained by the Ministry of Justice were selected by
political parties, and the president of the Supreme Court was also appointed by the ruling political party.
There should have clear procedures for recruiting and training judges.
6. Members of the Supreme Council of Magistracy, members of Constitutional Council, judges and prosecutors
should be non-partisan: Now all judges and prosecutors are members of political parties. Judges and
prosecutors should be non-partisan. Any judge or prosecutor who wants to join a political party should resign
from the judiciary or the legal authorities.
7. Stipulations of the Constitution related to the composition of the Supreme Council of Magistracy should be
amended:
The council should not have any representative of the Ministry of Justice.
The council should not have any judges who are currently in service.
8. The qualification of the membership of the Constitutional Council should be changed:
He/She should be at least 45 years of age.
He/She should have at least have a bachelor degree of law or equivalent degree.
He/She should have at least 10 years of experience as a judge, prosecutor or lawyer.
9. Police and armed forces should be non-partisan: If any general of the police or armed force wants to join in
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political activities he/she should resign completely from his/her service.
10. The law need to be enforced to end the rule by man and to begin the rule of law.
11. Police reforms are urgently needed: The police system must be reorganised, and police functions must be
confined to investigation of crimes and maintenance of law and order. All police activities should be
transparent.
12. The independence of the judiciary need to be enforced. The competence of the judiciary must be ensured.
13. All national institutions must be able to function without undue interference of powerful persons.
14. The armed forces must be neutral and organised according to the principles recognised in liberal
democracies regarding the armed forces. No political party or a powerful personality should have any power
over the armed forces. All personnel of the armed forced - from top to bottom - need to be trained.
15. The law must be interpreted fairly, and the interpretation of the law must be done only by the judiciary
and the Constitutional Council.
16. Only the National Assembly has the power of making laws. The practice of making laws by decrees and
sub-decrees must be abolished immediately. All such decrees and sub-decrees should not be regarded as law.
Posted on 1998-11-23
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