COM 03/2015

What is the Role of a Constitutional King in Cambodia, in the Recent Constitutional and Political Crisis, After the July 2013 Legislative Election?

HE. Son Soubert, Faculty of Archaeology of the Royal University of Fine Arts

The results of these legislative elections were rigged with frauds, and outright objected by the opposition party or the Cambodian National Rescue Party (CNRP), by independent observers and NGOs.

The CNRP resorted to the legal procedure, by lodging complaints to the Constitutional Council which in this occasion acts as  a  court.  They asked for the recounting of the ballot papers in two constituencies they believed incorrectly counted and eventually the organization of new elections in these constituencies. In one of the constituencies, the Constitutional Council failed to organize the new elections, although they knew the whole process was not correctly respected, arguing a lack of time which was stipulated in the Constitution according to which 60 days after the elections, the National Assembly should proceed to its opening. The ballot papers from the other Constituency, that is Kratie province, were not convincingly recounted by the Constitutional Council’s Member in charge of the problem. Despite all of that, the Constitutional Council proceeded to the proclamation of the final results of the elections. Failing to have satisfaction on their legitimate demands the CNRP decided to boycott the Opening Ceremony of the National Assembly, in order to response to its supporters advising the party not to attend. The CNRP created thus a crisis without precedent: mass demonstrations succeeded one another for months.

His Majesty the King acting as the go-between convened the ruling party and the opposition one to meet Him, which they did, and handed over to them the Convocation invitation for the Opening Ceremony of the Parliament. As already planned, the CNRP boycotted the Opening Ceremony, creating therefore a constitutional crisis, for the Chapter 7 Article 76 of the Constitution stipulated that the National Assembly should have at least 120 members. At the Opening Ceremony presided over by the King, the National Assembly failed to meet the 123 elected members, i.e. 55 from the opposition party, but only the contested 68 of the ruling party. The quorum of the first meeting of the National Assembly should be a quorum of more than 2/3 of the total number of its members, but the Rule of Procedures (Article 47 New) allows a quorum of more than the half of the total members of the National assembly, which the ruling party having more than 62 seats deems it legal to proceed. Furthermore, the ruling party believes that the fact that the King came to open the National Assembly despite the absence of the 55 members of the opposition party, was an endorsement of the legitimacy of the National Assembly. Therefore, the government approved by the National Assembly being legitimate could proceed to the normal affairs of the state.

His Majesty the King was much criticized by the young people through their face-book network, if not insulted. They failed to understand that as a Constitutional Monarch, He had to comply with the Constitution and the laws, what He exactly did. As a Privy Councillor to His Majesty the King and a former Member of the Constitutional Council, I felt it my duty to explain in a public declaration, published by the local and international press, that His Majesty the King had only fulfilled his obligations as a Constitutional Monarch. However the National Assembly and the ruling party did not meet the requirement for legitimacy, exactly because of the Article 76 of the Constitution fixing the number of the seats: therefore the National Assembly can only be but a virtual National Assembly, since the other elected members of the opposition were not sitting there. In consequence of this assessment, logically all the proceedings of the National Assembly are virtual, including the government and all the acts voted by the National Assembly.

Since no progress for any solution was in view, I therefore wrote to His Majesty the King as His Privy Councillor by quoting the Articles 8 and 9 of the Constitution, according to which the King is the symbol of national unity and the State continuity, and is the guarantor of national independence, sovereignty and territorial integrity (Article 8), and exercises the role of an arbitrator in order to guarantee the good functioning of the public powers (Article 9). As such, He can convene again the two parties in front of Him and asked them to come to an agreement for a political solution. Failing that, I took the liberty to suggest three solutions:

  • His Majesty can appoint a neutral acceptable person by both parties as interim Prime Minister to sort out the pending problem, in this case Her Majesty the Queen Mother.
  • As stated by the Constitution Article 9, His Majesty can take in His hands the pending problem personally and instruct the two parties to come to a compromise in a special Cabinet that He would supervise, with the Ministries being run  under  this Cabinet.
  • By stepping down  provisionally,  as  King  Sihanouk  did  in  His time, and have the Queen Mother as Guardian of the Throne, and act as a Provisional Prime Minister, while the two contending political parties’ leaders act as Deputy Prime Ministers, until the crisis is solved.

His Majesty sent my letter to the Constitutional Council for review, but the latter deems it not within its competence to examine the content of the letter, although the letter referred to the Articles 8 and 9 of the Constitution, which would oblige the Constitutional Council to interpret those Articles, when the Article 136 paragraph 1 clearly states that the Constitutional Council has the competence to guarantee and defends the respect of the Constitution, to interpret the Constitution and the laws approved by the National Assembly and thoroughly reviewed by the Senate. Again the Constitutional Council hides behind the argument that it is beyond its competence, in order to avoid the political aspect of the problem. Furthermore, the Constitutional Council Members are in majority members of the ruling party, the Cambodian People’s Party (CPP), among the 9 members only three can be considered as neutral, since they are appointed by the King. For a 2/3 majority vote, the 6 members belonging to the CPP are sure to get their way through.

The Prime Minister was not happy with my suggestions: without naming me explicitly, he publicly criticized some person who made such suggestions.

The Political Solution

I don’t know whether this intervention has any leverage on the change that came shortly after that. Both the opposition and the ruling parties came to some understanding on the composition of the 9 members of the National Electoral Committee (NEC), by agreeing with the formula of 4 members from each political party and a neutral figure from the NGO .

I still don’t feel that this compromise would lead really to the neutralization of the whole process, if on the commune and provincial levels the composition would lean toward the ruling CPP. Again it would not be enough to neutralize the NEC, the Constitutional Council which in the last resort decides on the outcome of the results of the elections has to be neutralized also.

In the precarious situation of Cambodia, where the Armed Forces are involved in fishy businesses, if not land grabbing, with an inflation of generals (over 900), some without troops and harshly educated in the democratic ideal, the democratization process will be difficult, in terms of rule of law and democratic governance. This kind of situation is the result of the ill-implementation of the UNTAC (UN Transitional Authorities in Cambodia) which did not succeed to canton, disarm and demobilize the four factions’ armed forces in 1992, prior to the UN organized elections. Finally the armed forces ended up to be the instruments of the Prime Minister who tolerates their fishy businesses, either incapable of controlling them or unwilling to do so by a laisser-faire in order to have them depending on his good will, because they are somehow linked with criminal activities. Even though the King is the President of the Supreme Council of the National Defense, He has no power on the Military. The present Armed forces are barely National Armed Forces, but rather the ruling party Armed Forces.

The  Constitution  stipulates  that  the  King  is  the  guarant or  of  the independence of the judiciary. Although the King is the President of the Supreme Council of the Magistracy which supervises the functioning of the judiciary system and the behavior of the judges, He has no power to make His points of view known. The judiciary system is still weak and fearful of the executive power, if it is not liable to corruption. His Majesty King Sihanouk told us in 1997, when the Members of the Permanent Committee of the National Assembly visited Him in the Royal Residence of Siem-Reap, that He would never preside over the Supreme Council of Magistracy, because He did not know the judges, hearing nothing  about them, and could say or see anything, by putting His hands in front of His mouth, of His eyes and before His ears.

In Thailand, at least the Armed Forces are not those of a political party, they are on the side of the King who is the Chief of State and represents the State. In Cambodia, the Constitutional King cannot properly guarantee the proper functioning of the State In stitutions, since He has no leverage on the judiciary or the Armed Forces which are not conscious of their role as the defenders of the Nation, of the People and the Constitutional Monarchy which cannot be amended according to the Constitution. The Minister of Defense, Mr.  Tea  Banh,  recently declared that the Armed Forces are defending the government for its  stability, which apparently seems to be logical, since the Armed Forces are under the control of the government, but in Cambodia the government is mostly made of members of the ruling party, i.e. the Cambodian People’s Party, which Mr. Tea Banh himself belongs to. He failed to understand that the Armed Forces are there to defend the State institutions and the Constitution.

(….) On the occasion of the passing away of Lee Kuan Yew, the founder and long-term leader of Singapore, we present in our rubric “Asian leaders” an article of Michael Barr, PhD, Associate Professor in International Relations at the School of International Studies of Flinders University, Australia. Author of “Lee Kuan Yew: The Beliefs Behind the Man”, Michael Barr presents in this paper conclusions on life and legacies of Lee Kuan Yew on whom he has been doing research for 20 years.