In every democratic country around the world consider their constitution as the supreme law superior to other laws. Some even value the constitution above the international law, when they come to their State sovereignty. In every constitution aims to determine the relationship between the governing and the governed – State and citizens. But does the Constitution is the only answer to every problem happening in the society? The answer may be not but I believe the constitution is the core spirit of the State to structure every big skeleton of the nation – political regime, economic system, social welfare, sovereignty and integrity, national security and defense, and human rights.
In the Constitution of the Kingdom of Cambodia promulgated by the Constituent Assembly in 1993 also states about the supremacy. But what does supremacy really mean in the constitution of Cambodia? Does Cambodia Constitution really have supremacy? If it isn’t, why. And how to can lawmaker do to make the constitution supreme? How the supremacy of the constitution helps to shape the democratization process and the respect of the human rights?
In every democratic country around the world consider their constitution as the supreme law superior to other laws. Some even value the constitution above the international law, when they come to their State sovereignty. In every constitution aims to determine the relationship between the governing and the governed – State and citizens. But does the Constitution is the only answer to every problem happening in the society? The answer may be not but I believe the constitution is the core spirit of the State to structure every big skeleton of the nation – political regime, economic system, social welfare, sovereignty and integrity, national security and defense, and human rights.
In the Constitution of the Kingdom of Cambodia promulgated by the Constituent Assembly in 1993 also states about the supremacy. But what does supremacy really mean in the constitution of Cambodia? Does Cambodia Constitution really have supremacy? If it isn’t, why. And how to can lawmaker do to make the constitution supreme? How the supremacy of the constitution helps to shape the democratization process and the respect of the human rights?
In every democratic country around the world consider their constitution as the supreme law superior to other laws. Some even value the constitution above the international law, when they come to their State sovereignty. In every constitution aims to determine the relationship between the governing and the governed – State and citizens. But does the Constitution is the only answer to every problem happening in the society? The answer may be not but I believe the constitution is the core spirit of the State to structure every big skeleton of the nation – political regime, economic system, social welfare, sovereignty and integrity, national security and defense, and human rights.
In the Constitution of the Kingdom of Cambodia promulgated by the Constituent Assembly in 1993 also states about the supremacy. But what does supremacy really mean in the constitution of Cambodia? Does Cambodia Constitution really have supremacy? If it isn’t, why. And how to can lawmaker do to make the constitution supreme? How the supremacy of the constitution helps to shape the democratization process and the respect of the human rights?
Written By: LONG KimKhorn LL.M. in International Human Rights and Humanitarian Law
Pa!s!stra University of Cambodia Introduction to Cambodian Law
Instructed By: Professor Dr. KONG Phallack Dean of PUC Faculty of Law and Public Relations
Phnom Penh, July 23, 2014
Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= # TABLES OF CONTENT I. Abstract 3 II. Acknowledgement 3 III. Introduction 3 IV. Literature Review 5 V. Methodology 13 VI. Facts and Findings 13 VII. Recommendation 16 VIII. Conclusion 17 IX. References 17
Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= $ I. Abstract In every democratic country around the world consider their constitution as the supreme law superior to other laws. Some even value the constitution above the international law, when they come to their State sovereignty. In every constitution aims to determine the relationship between the governing and the governed State and citizens. But does the Constitution is the only answer to every problem happening in the society? The answer may be not but I believe the constitution is the core spirit of the State to structure every big skeleton of the nation political regime, economic system, social welfare, sovereignty and integrity, national security and defense, and human rights. In the Constitution of the Kingdom of Cambodia promulgated by the Constituent Assembly in 1993 also states about the supremacy. But what does supremacy really mean in the constitution of Cambodia? Does Cambodia Constitution really have supremacy? If it isnt, why. And how lawmaker can do to make the constitution supreme? How the supremacy of the constitution helps to shape the democratization process and the respect of the human rights? II. Acknowledgement I would like to thank Dr. KONG Phallack for instruction and also to all scholars, lawmakers, I/NGOs reports, academic researches and publications that I was being used to write this paper. III. Introduction In the 1993 Constitution Art. 150: (Former Art. 131) [1] states This Constitution shall be the Supreme law of the Kingdom of Cambodia. 1 And Art. 150 [2] states Laws and decisions by the State Institutions shall have to be in strict conformity with the Constitution.
1 The Constituent Assembly, the Constitution of the Kingdom of Cambodia, (Phnom Penh: 1993) Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= % According to the book Introduction to Cambodian Law 2 , the supremacy is composed by three basic elements: (1) a constitution is superior to the law; (2) any law contrary to the constitution is not law; (3) if a law is void, it must not be enforced (Hor. Kong. &Menzel. (Eds.): 2012). The constitution is superior because it made from the will of the citizens within a given and defined territory through their representative which elected by them directly with the principles of free and fair. Kelsen and Barak said Kelsen and Barak, it is superior because the foundation of validity of the law-constituent power is superior over legislative power and it requires to be justified by judicial review (Hor. Kong. &Menzel. (Eds.): 2012, p. 30)
Furthermore, in order to guarantee the supremacy of the constitution, the law designed three level of enforcement 3 (1) Moral-binding enforcement: it is depending solely on the virtue of law enforcement officer as well as politician and leader. It is easy to be breached by the officer when it comes to personal interest and threat; (2) Political-binding enforcement: in which it has to do with the responsibility of each individual elected toward the elector and voter. Because if they dont care the interest of their supporter or breach the trust of their citizens, they will face a problem of loosing vote leading them away from the political power and authentic authorization; (3) Legal-binding enforcement: if the politician cross the red line which is limited by the constitution and law, they will be punished by the law which they made by themselves. Since the 1993 until the present, the National Assembly of Cambodia adopted nearly around 360 organic laws which is drafted by the Royal Government of Cambodia. Due to the scope, time constraint, and objective of the research, I will bring two controversial organic laws to discuss in the below literature review.
2 &3 Hor Peng, Kong Phallack &Jorg Menzel (Eds.), Introduction to Cambodian Law, (Konrad Adenauer Stiftung, Cambodia: 2012)
Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= & a. Research Objective I would like to find out whether the present Constitution has its supremacy or not. Because I believe that if there is Constitutional Supremacy, it is a way to ensure the citizens can exercise their rights through the three branches of the government effectively and meaningfully because the constitution can really protect the rights of the citizens and avoid from the undermining of the laws which drafted by the Royal Government of Cambodia. Furthermore, I would like to find out how lawmaker can do to make the constitution to posses the power of its supremacy.
b. Research Scope Due to time constraint and the research objective, I would like only to examine some article through out the constitution and organic laws that are believed undermining the supremacy of the constitution from the legal point of view.
c. Research Problem According to the 1993 Constitution Art. 150 (New): (Art. 131 Old) [1] states Constitution is the supreme law of the Kingdom of Cambodia. According to the principles of the modern constitutionalism, the supremacy have to meet three aspects a./ Constitution shall be superior to others laws, b./ Other laws that contrast with the Constitution are not law/ void, c./ If it is void, it couldnt be implemented.
In the last 20-year since 1993, the National Assembly of Cambodia passed more than 360 laws which were drafted by the Royal Government of Cambodia. There are many criticisms that those laws, more or less, written down unconstitutionally aiming to protect the legacy of the government rather than to preserve the rights of its citizens.
IV. Literature Review The first case study of the research related to the rights of peaceful assembly which Cambodia as the State party of this covenant. In the Art. 21 of the ICCPR 4 , International Covenant on Civil and Political Rights, the right of peaceful Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= ' assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.
Furthermore, in the 1993 Constitution Art. 31 states The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human rights, the covenants and conventions related to human rights, womens and childrens rights. 1993 Constitution Art. 37 reads The right to strike and to non-violent demonstration shall be implemented in the framework of a law. 1993 Constitution Art. 41 stipulate Khmer citizens shall have freedom of expression, press, publication and assembly. 5
According to Royal Kram No. NS/RKM/1209/025, the Law on Peaceful Assembly (LPA) 6 as adopted by the National Assembly on October 21, 2009, Art. 11 stated that In case the competent municipal or provincial territorial authorities have clear information indicating that the demonstration may cause danger or would seriously jeopardize security, safety and public order, the municipal or provincial territorial authorities shall immediately respond to and notify the filers of the notification letter, so that they will have time to meet with local authorities and other relevant authorities to discuss solutions.
4 The General Assembly of United Nations, International Covenant on Civil and Political Rights, (United Nations, 1966)
5 The Constituent Assembly, the Constitution of the Kingdom of Cambodia, (Phnom Penh: 1993) 6 The National Assembly, Royal Kram, No. !"/#$%/ 1209/ 025: Law on Peaceful Assembly, (Phnom Penh: 2009) Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= ( 2009 LPA. Art. 12 reads Upon discussion, if both parties fail to reach an accord, the competent municipal or provincial territorial authorities shall request the Minister of Interior to provide a decisive opinion. 2009 LPA. Art. 14 [1]. (1) continues at the freedom parks created appropriately in compliance with laws or regulations, and where that peaceful assembly is to be conducted by a maximum of two hundred (200) persons for each municipality or province.
We can see that in this article and the law itself didnt give the clear definition about (a) what is clear information means and what component or substantive or subject-matter to determine an action as the cause of danger and jeopardize security, safety, public order; (b) How does the Ministry of Interior give decisive opinion base on what whether on the subject-matter of the law or the Ministrys political will or on the object-matter stated in the report of the subordinate of the Ministry itself; (c) and a maximum of two hundred but what if, if the citizen who want to protest or gather or assemble against State authority or private entity reach beyond two hundred because LPA allows only two hundred and didnt state clearly whether beyond two hundred will be considered as the act of unlawful and have to be banned.
The reality in any society, mostly the citizen assembly is to protest against the State authority whether because of bad or unaffordable public services and poor governance or the act of the State authority to protect the interest of the private entity which the citizen believe this act is against the general will of victim as a particular group of citizen or in general and can cause damage or destroy the interest of citizen. It defined as the demanding act against the protective State authority. Therefore, many cases in general practices in Cambodia, the State authority intends to block the will of assembly aiming against the authority through not allowing the permission for gathering or assembly even other provision of this law require the people to submit only a letter of notice informing the authority about the assembly. All above legal reasoning showing that this LPA, to some extent, against the constitutionality causes the loose of supremacy of the constitution.
Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= ) Furthermore, according to the CCHR, Cambodia Center for Human Rights 7 , is concerned some vague language in the Demonstration Law could be interpreted to enforce draconian limits on freedom of expression. Article 2 specifies that peaceful assembly shall not be used abusively affecting the rights, freedoms, and honor of others, good customs of the national society, public order and national security. Some of these phrases could be subject to broad and subjective interpretation.
Specifically, the phrase honor of others could potentially be interpreted to mean any peaceful assembly protesting the actions of another. The implementation guide for the Demonstration Law does not clarify these phrases, but does emphasize authorities must have clear information an assembly will jeopardize security, safety, or public order as grounds to stop it. The implementation guide defines clear information as a comprehensive assessment of the substantive evidence that the authority holds the absolute power on the assessment and evidence. There is no other mean that the citizen can hold assembly lawfully, if the authority said No. In this case, citizen is left no mean to justify their own action and force himself or herself to assemble even though the law not allow resulted in so-called Anarchic Group and suppressed by the police. Therefore, both LPA and the implementation guide are likely to infringe on the right to peaceful assembly (CCHR, 2011: 1).
The second case study related to the three current controversial draft laws aiming for the Judicial System Reform Law on the Organization and Functioning of the Supreme Council of Magistracy, Law on the Statute of Judges and Prosecutors, and Law on the Organization of the Courts. In the law of SCM, there are many controversial articles such as Art. 4, 5, 7, 8, 15, 20, 23, 25; as for the law on SJP such as Art. 33; the law on OC such as art. 11 and 84. Due to the scope and objective of the paper, I would like to examine and discuss only the Art. 4 of the SCM, Art. 33 of the SJP, and art. 11 of the OC. 7 Cambodia Center for Human Rights, Green, Yellow, Red CCHR Law Classification: Law on Peaceful Assembly, (CCHR, 2011) Volume: 2, p.1 Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= * 2014 Draft SCM 8 Art. 4 reads the Minister of Justice is a member of SCM, the Lord of the Supreme Court also a member of the Supreme Council of Magistracy and General Prosecutor also a member of the SCM. The objective of the Law on SCM is to oversee and check the competence of the Ministry of Justice and the court at all level. This law allowed the highest-ranking official in charge of the executive work of the justice and court - Minister of Justice, Lord of Supreme Court, and General Prosecutor are seated in the council. How can a doer or practitioner or executive officer check his or her act because they will use their discretion or will in the name of human being themselves which make them unable to see their mistake and if there is mistake, they will ignore it because they are also a part of the council which hold power to decide who right and wrong. 2014 Draft SJP 9 Art. 33 read the Promotion Committee to the Court: Secretary of State is the president and Secretary-General of Supreme Council of Magistracy as the secretary of the committee. Then again, we can see clearly that the appointed high-ranking executive officer in the executive branch also appointed to charge the high-level body in the judiciary branch. 2014 Draft OC 10 Art. 11 states Ministry of Justice shall hold rights to oversee all the administrative of the court at all level. Therefore, Art. 4, 33, and 11 written down against the 1993 Constitution Art. 51 [5] reads The Legislative, Executive and the Judicial powers shall be separate. Furthermore, according to the UN Resolution 1989/32 11 , the General Assembly of the United Nations invited governments to take into account the principles set forth in Dr. Singhvis draft declaration in implementing the United Nations Basic Principles on the Independence of the Judiciary, which had been approved in 1985
8 The Office of Council of Ministers, Law the Organization and Functioning of the Supreme Council of Magistracy, (Phnom Penh: 2014) 9 The Office of Council of Ministers, Law on the Statute of Judges and Prosecutor, (Phnom Penh: 2014) 10 The Office of Council of Minister, Law on the Organization of the Courts, (Phnom Penh: 2014)
Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= "+ The principle 14 of the declaration reads Promotion of a judge shall be based on an objective assessment of the judge's integrity, independence, professional competence, experience, humanity and commitment to uphold the rule of law. No promotions shall be made from an improper motive. Cambodia is the Member State of the United Nations. This is a declaration which is not binding and not require Member State to ratify but this is the international declaration and the principle is worldwide used. On 10 December 1948, the Universal Declaration 12 of Human Rights was proclaimed and adopted by the General Assembly stated in art. 10 that Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. In this article, the declaration stated clearly about independent and impartial tribunal. In order to have independent and important tribunal, there have to have independent court. In order to have independent court, have to have the independent monitor to oversee the Ministry of Justice and the Court which is in the hand of the Supreme Council of Magistracy. And if the executive and judicial power composed of the same person, who will monitor who. 1966 ICCPR 13 Art. 14 [1], which Cambodia also a State party, states that all persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
11 The Commission (UN-ECOSOC), Resolution 1989/32: Dr. Singhvi's draft declaration in implementing the United Nations' Basic Principles on the Independence of the Judiciary, (UN, 1985) 12 The General Assembly, the Universal Declaration of Human Rights, (UN, 1948) 13 The General Assembly of United Nations, International Covenant on Civil and Political Rights, (United Nations, 1966)
Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= "" The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. Furthermore, these draft law drafted and written down against the many articles stipulated in the Constitution 14 1993 Art. 51: (New) [5] reads The Legislative, Executive, and the Judicial powers shall be separate; Art. 132: (Former article 113): The King shall be the guarantor of the independence of the Judiciary. The Supreme Council of the Magistracy shall assist the King in this matter; Art. 128: (Former article 109) reads The Judicial power shall be an independent power; Art. 130: (Former article 111) states Judicial power shall not be granted to the legislative or executive branches; Art. 134: (Former article 115) stipulates The Supreme Council of the Magistracy shall be established by an organic law which shall determine its composition and functions. The Supreme Council of the Magistracy shall be chaired by the King. The King may appoint a representative to chair the Supreme Council of the Magistracy. The Supreme Council of the Magistracy shall make proposals to the King on the appointment of judges and prosecutors to all courts. The Supreme Council of the Magistracy shall meet under the chairmanship of the President of the Supreme Court or the General Prosecutor of the Supreme Court to decide on disciplinary actions against judges or prosecutors.
14 The Constituent Assembly, the Constitution of Kingdom of Cambodia, (Cambodia: 1993) Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= "# According to the Joint Statement 15 of the Civil Society, Index. ASA/004/2014 dated on 26 May 2014, on 22 and 23 May, the NA passed, in quick succession, the Law on the Organization of the Courts, the Law on the Statute of Judges and Prosecutors, and the Law on the Organization and Functioning of the Supreme Council of the Magistracy. The bills will then be sent to the Senate for review, to be followed by scrutiny by the countrys Constitutional Council. The bills as drafted violate the separation of power and judicial independence provided by Articles 51, 128 and 132 of the Constitution of Cambodia and international law and standards in a number of important respects. In particular, they contravene Article 14 [1] of the International Covenant on Civil and Political Rights (ICCPR) that guarantees an independent and impartial tribunal, the United Nations Basic Principles on Independence of Judiciary, the Singhvi Declaration and the Beijing Statement of Principles. In contravention of the Singhvi Declaration and the Beijing Statement of Principles, the current bills give the Minister of Justice power to: control and manage the administrative affairs of the courts and prosecutors including regarding the budget and promotion or reassignment; act as the chief of the prosecution and to issue orders to the prosecutions of all level of courts; determine the number of judicial students; participate in recommending judicial promotions; decide upon requests of government officials not trained as prosecutors to become prosecutors; rule on requests by judges or prosecutors on leave to undertake private transactions; appoint an inspection team to investigate alleged judicial breaches of discipline; and oversee the establishment of disciplinary case files. Further, according to Principle 8 of the United Nations Basic Principles on the Independence of the Judiciary, judges are entitled to freedom of expression so long as they conduct themselves in a manner that preserves the dignity of their office and the independence of the judiciary.
15 ASA, Index: ASA 23/004/2014: Joint Statement Civil Society on Judicial Reform Bills, (Phnom Penh: 2014) Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= "$ V. Methodology Paper will use both primarily and secondary source via internet-based sources including the course reading book with the 1993 Constitution as the sources for the research writing. After collecting all sources, I conduct literature review on all sources to find out the related part which able to respond the main question of the research. Research paper uses qualitative method and empirical method to examine the fact and finding.
VI. Facts and Findings 1993 Constitution Article 91 16 : (New) reads The Senate members, deputies and the Prime Minister shall have the right to initiate legislation. German basic law (Constitution) doesnt allow the chancellor to initiate the essential law. In Cambodia, the constitution allows the Prime Minister to initiate organic law. Politically, the will of politician differ from the general will of the citizen. People demand good public services from the government through politician. The politician wants to control power as long as they can through the government. Therefore, the politician creates law to protect the power of their government rather than the rights of the people. From legal point of view, the constitution is the power of the people to limit the power of the government. Parliamentarian elected by the people to protect the constitution. By protecting the constitution means protect the people. But in case of Cambodia, Prime Minister or the government can initiate any organic law he or she wishes and wants. The power of initiating organic law of the Prime Minister causes the loose of supremacy of the constitution. 1993 Constitution Article 28 17 : (New) [1] reads The King shall sign the law (Kram) promulgating the Constitution and laws adopted by the National Assembly and Senate, and sign decrees ( Kret ) presented by the Council of Ministers.
16 The Constituent Assembly, the Constitution of Kingdom of Cambodia, (Cambodia: 1993) Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= "% No any provision in the constitution allow the King to have veto right not to ratify any law and decree that King believe it harms the national independence, sovereignty, territorial integrity of the Kingdom of Cambodia and rights and freedom of all citizens which stipulated in article 8. Therefore, the King left no choice beside ratifies whatever law and decree submitted by the government. When the King has no veto right, it causes the loose of supremacy of the constitution. 1993 Constitution Article 140 18 : (Former article 121) [1] reads The King , the Prime Minister, the President of the Assembly, or 1/10 of the assembly members and President of the Senate or 1/4 of the Senate members shall forward draft bills already passed by the National Assembly to the Constitutional Council for examination before their promulgation. This provision didnt give any power to the Constitutional Council the right to order any law or decree or case to the Council for examination. Art. 140. [2] states the Assembly and Senate Rules of procedure and various organic laws shall be forwarded to the Constitutional Council for examination, before their promulgation. The Constitutional Council shall decide within no more than thirty days whether the above laws and the Internal Rules of procedure of the Assembly and of the Senate are constitutional. This article seems to mean that it is not a matter whether the Council examine the receiving law or decree because after thirty days those sent law or decree will be considered as constitutional. 1993 Constitution Article 141: (Former article 122) [1]. reads after a law is promulgated, the King, the President of the Senate, the President of the Assembly, the Prime Minister, 1/10 of the Senate members, 1/10 of the Assembly members or the courts, may ask the Constitutional Council to examine the constitutionality of that law.
17 The Constituent Assembly, the Constitution of Kingdom of Cambodia, (Cambodia: 1993) 18 The Constituent Assembly, the Constitution of Kingdom of Cambodia, (Cambodia: 1993) Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= "& The constitution allow the Constitutional Council to examine any law which asked by the King, the President of the Senate, the President of the Assembly, the Prime Minister, 1/10 of the Senate members, 1/10 of the Assembly members or the courts but didnt allow the Constitutional Council has right to initiate its own examination and interpretation on any law which the Council believe that these laws or decree drafted unconstitutionality. Therefore, when the Constitutional Council has no right to initiate the examination on the law, it causes the loose of the supremacy of the constitution by which law and degree drafted unconstitutional on that regard. According to the last revised on the Law on Election of Members of the National Assembly (LEMNA) 19 and Amendments of Law on Election of Members of the National Assembly, Article 5: [2] reads the electoral system shall be proportional representation with provincial/municipal constituencies. This law not allows any individual to run for office without Party that means everyone has to be on the list of any political party and the voter can only vote for the Party but not the candidate. Therefore, this law leave a hug authority of the Party over the representative determining from who would be on the candidate list to who will be appointed as the real representative which whoever is not necessarily. This article causes the representative loose the power of their representativeness and loose of the supremacy of the constitution because the representative hardly protect the interest of their voter and even themselves.
18 The Constituent Assembly, the Constitution of Kingdom of Cambodia, (Cambodia: 1993) 19 The National Assembly, LAW on Election of Members of the National Assembly (LEMNA) and Amendments of Law on Election of Members of the National Assembly, (Phnom Penh: last revised 2013)
Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= "' VII. Recommendation Firstly, the article 91 in the constitution has to be amended not allow the Prime Minister or the government has the power and right to initiate organic law. The constitution has to state clearly that the power of initiating organic law is the absolute power of the Legislative Branch and allow the Prime Minister or the government only the power and right to issue the executive order or directive to implement the organic law which passed by the legislative power effectively and efficiency. By doing so, legislative can limit the power of the Prime Minister and the Constitution is really protected. Secondly, the article 28 in the constitution has to be amended to allow the King has veto right to not ratify any law to ensure that the King can exercise His Majesty stipulated in the article 8. But the constitution has to write clearly that the King has only two times of veto rights. And if the King still dismiss any law or decree in the third time, Lawmaker can use article 116 (New) which stated that When necessary, the National Assembly and the Senate may hold a meeting jointly as a Congress to solve major problem of the country as the legislative power to override the veto right of the King. Thirdly, the article 140 in the constitution has to be amended to allow Constitutional Council not just receive the draft bills from the King, the President of the Senate, the President of the Assembly, the Prime Minister, 1/10 of the Senate members, 1/10 of the Assembly members or the courts but also the power and right to order these bodies to submit, especially the royal decree (kram), royal order (Kret), sub-decree, circular, prakas, notice so on and so forth which issued under the royal palace and the house of the government both national and sub- national administrative level for examination on the constitutionality. Fourthly, the article 141 in the 1993 Constitution has to be amended to allow the Constitutional Council the power and right to not only examine the draft bills that asked by the King, the President of the Senate, the President of the Assembly, the Prime Minister, 1/10 of the Senate members, 1/10 of the Assembly members or the courts but also the right and power to initiate the examination on any drafted bills that the Constitutional Council believe it was drafted unconstitutionality. Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= "( Finally, the article 5 in the Law on Election of Members of the National Assembly (LEMNA) and Amendments of Law on Election of Members of the National Assembly has to be amended from the electoral system of the proportional representation to the mixed electoral system proportional and individual (stand no party). This system will allow the National Assembly full of dynamic, diversified, independent and potential representative and allow the parliamentarian exercise the representativeness fully to protect the constitution, public interest and the interest of the citizen VIII. Conclusion The Constitution is coined and designed to determine the relationship between the government and the people. The people create the constitution to limit the power of the government, not allow the State abuse its power on other two branches legislative and judiciary, not allow the State authorities violate the rights of the citizen. The politician tries to interpret the constitution to create many organic laws and orders aiming to protect the power of the government rather than protecting the rights of its people. To fulfill the duty and obligation, the Constitution has to have the power in itself to oversee every aspects of the political life of a nation and its people. This power is called supremacy. To have the supremacy, the constitution has to be amended some article to allow the King has veto power in ratification, Constitutional Council has power to order and initiate to examine the constitutionality, change the electoral system to mixed proportional and individual, and not allow the Prime Minister or the government to have power to initiate the organic law. IX. References 1. 1993 Const. art. 150, para. 1. 2. 2. Hor Peng, Kong Phallack, Introduction to Cambodian Law 29 (Jorg Menzel eds., Konrad Adenauer Stiftung 2012) (2012). 3. Hor Peng, Kong Phallack, Introduction to Cambodian Law 30 (Jorg Menzel eds., Konrad Adenauer Stiftung 2012) (2012). Pa!s!stra University of Cambodia The Supremacy of the Constitution 1993
!"#$%&&#" (") *+,- !./00/12 3456%748 9+,- *:;*.#"7< 99)= ") 4. 1966 International Covenant on Civil and Political Rights (ICCPR). art. 21, para. 1. 5. 1993 Const. art. 31, 37, 41. 6. Royal Kram No. NS/RKM/1209/025, Law on Peaceful Assembly the National Assembly art. 11, 12, 14., para. 2 (1), Dated October 21, 2009. 7. CCHR, Green, Yellow, Red CCHR Law Classification Series: Law on Peaceful Assembly, 2.1 (2011). 8. Draft Law on the Organization and Functioning of the Supreme Council of Magistracy art. 4, 5, 7, 8, 15, 20, 23, 25, 26, Dated 19 Apr. 2014. 9. Draft Law on the Statute of Judges and Prosecutor art. 33, Dated 19 Apr. 2014. 10. Draft Law on the Organization of the Courts art. 11, 84, Dated 19 Apr. 2014. 11. The Commission (UN-ECOSOC), Resolution 1989/32: the principles set forth in Dr. Singhvi's draft declaration in implementing the United Nations' Basic Principles on the Independence of the Judiciary, (UN: 1985) 12. The Universal Declaration of Human Rights (UDHR) art. 10 (10 Dec. 1948). 13. 1966 ICCPR (International Covenant on Civil and Political Rights) art. 14, para. 1. 14. 1993 Const. art. 51, para. 5., art. 132, 128, 130, 134. 15. ASA, Index: ASA 23/004/2014: Joint Statement of Civil Society on Judicial Reform Bills, (Phnom Penh, 26 May 2014). 16. 1993 Const. art. 91. 17. 1993 Const. art. 28, para. 1. 18. 1993 Const. art. 140, para. 1., art. 140, para. 2. 19. LAW on Election of Members of the National Assembly (LEMNA) and Amendments of Law on Election of Members of the National Assembly and its Amendments art. 5, para. 2. Dated Last Revised. Jan. 2013.