Cambodia Constituent Assembly

The Cambodian Constituent Assembly () was a body elected in 1993 to draft a constitution for Cambodia as provided in the 1991 Paris Peace Agreements. The writing of the Cambodian Constitution took place between June and September 1993 and it resulted in the transformation of the political situation of Cambodia from civil-war-marred, autocratic oligarchy to a constitutional monarchy. Achieved under the guidance, auspices and funding of the United Nations Transitional Authority in Cambodia (UNTAC), the drafting of the constitution was the culmination of a larger, $1.6 billion effort to end the decades-old country's civil wars and bring the warring parties into political, rather than military competition. The result of the process was the creation of a constitution for Cambodia that, at least on paper, guarantees free political competition, regular elections, equal rights and representation and universal suffrage.

Background

Cambodia, like many of its neighbours, had no pre-colonial history of conception of constitution and rule of law. The balance of power between rulers and their subjects was such that a king and his central state in Cambodia ruled largely through influence and unofficial channels. David P. Chandler, the premier Cambodia historian, explains, "a Cambodian king, like most Chinese emperors, could rule only by extending networks of patronage and mutual obligations outward from his palace, at first through close associates and family members but becoming diffuse--and more dependent on local power-holders--at the edges of the kingdom." Into the 19th century, most of the rural population had only a rough conception of their king. According to Chandler, rural people generally believed the king to have power over the weather, to "dispense true justice" and to be "the only political source of hope among peasants." That said, his legitimacy came much more from charisma, genealogy and cosmology than from his fairly enforcing a system of laws.

The notion of regimented legal and judicial systems was only really introduced to Cambodia with the advent of French colonialism in the 19th century. With such concepts came the notion of defining and restricting state power in formal law. The process was cemented with the withdrawal in 1953 of the French from Cambodia and the 1947 constitution they left behind. Drafting of the 1993 constitution would draw heavily on both the 1947 constitution and the 1989 constitution that had been drafted by the Vietnamese-backed People's Republic of Kampuchea (PRK). This sourcing was both of convenience and because each of the previous constitutions was strongly favorable to the two leading parties at the Constituent Assembly, the royalist FUNCINPEC (Front Uni National pour un Cambodge Indépendant, Neutre, Pacifique, et Coopératif, or "National United Front for an Independent, Neutral, Peaceful, and Cooperative Cambodia.") and the incumbent CPP (Cambodian People's Party). The 1947 constitution featured the strong monarchy and pre-civil war structure favored by FUNCINPEC. The 1989 constitution was similarly favored by the CPP, its writers, because of the strong favor it showed to the existing political order.

Paris Peace Accords

The Paris Peace Accords were in 1991, and sought to settle once and for all the political violence that had plagued Cambodia since the 1960s. It was designed to put an end to the civil war in Cambodia, usher out the occupying Vietnamese army and establish free, fair and peaceful elections. Parties to that accord, namely Australia, Brunei, Cambodia (People's Republic of Kampuchea and the CGDK), Canada, China, France, India, Indonesia, Japan, Laos, Malaysia, the Philippines, Singapore, Soviet Union, Thailand, United Kingdom, United States, Vietnam and Socialist Federal Republic of Yugoslavia, created the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, a far ranging document that outlined the reconstruction effort. The mandates for that agreement were, as articulated in the nine parts thereof, Arrangements During the Transitional Period, Transitional Period, United Nations, Transitional Authority in Cambodia, Supreme National Council, Withdrawal of Foreign Forces and its Verification, Cease-fire and Cessation of Outside Military Assistance, Elections, Human Rights, International Guarantees, Refugees and Displaced Persons, National Communities, Communes and Representation.

The writing of the constitution and the transition to democracy were but a part of the larger disengagement and normalization process outlined at the Paris Peace Accords. Though it was to culminate with the complete transformation of Cambodia to a constitutional democracy, the process was separated into six steps. As outlined by Harvard's Professor Stephen Mark in a report for the United States Institute of Peace, those steps were:
:• Cease-fire, demobilization, and creation of a neutral political environment.
:• Election of the Constituent Assembly through a UN-run election, the outcome of which was declared "free and fair" by the SRSG and the Security Council.
:• Selection of a drafting committee from among the members of the Constituent Assembly.
:• Adoption by the Assembly of the Committee's draft.
:• Proclamation by the king of the Constitution.
:• Transformation of the Constituent Assembly into the National Assembly.

Annex V of the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, called Principles for a New Constitution for Cambodia, consisted of six principles that were to guide the drafters of the new Cambodian constitution in creating a liberal democracy. They were derived from a United Nations recommendation issued during the drafting of Namibia's constitution in 1982. Those Principles were:

::1. The constitution will be the supreme law of the land. It may be amended only by a designated process involving legislative approval, popular referendum, or both.
::2. …the constitution will contain a declaration of fundamental rights, including the rights to life, personal liberty, security, freedom of movement, freedom of religion, assembly and association including political parties and trade unions, due process and equality before the law, protection from arbitrary deprivation of property or deprivation of private property without just compensation, and freedom from racial, ethnic, religious or sexual discrimination. It will prohibit the retroactive application of criminal law…Aggrieved individuals will be entitled to have the courts adjudicate and enforce these rights.
::3. The constitution will declare Cambodia's status as a sovereign, independent and neutral State, and the national unity of Cambodian people.
::4. The constitution will state that Cambodia will follow a system of liberal democracy, on the basis of pluralism. It will provide for periodic and genuine elections…
::5. An independent judiciary will be established, empowered to enforce the rights provided under the constitution.
::6. The constitution will be adopted by a two-thirds majority of the members of the constituent assembly.

The term "liberal democracy," as expressed in the fourth principle, was introduced to the discourse over the constitution apparently by Prince Sihanouk during previous negotiations with the warring Cambodian factions and international bodies. It has been speculated that he referred to his hopes for the future of Cambodia thus because he assumed that such language was what the American and European parties to the Accords were looking for. It has been noted that "liberal democracy" was far from the political system that he engineered for himself at independence. That term is nowhere in the final agreement defined, though eight elements of democratic elections are articulated. Those eight elements are: the regular occurrence of elections, "genuine" and manipulation-free elections, guarantee of the right to vote, guarantee of the right to stand for election, universal suffrage, equal suffrage (the equity of each vote), private and secret ballots and the fair ability of all persons and groups to organize for and participate in the electoral process through public discourse.

Constituent Assembly

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