By Dr. Renu Bhagat Queens College of City University of New York Abstract: The absence of checks and balances in Cambodia leads ...
By Dr. Renu Bhagat
Queens
College of City University of New York
Abstract: The absence of checks and balances
in Cambodia leads to unaccountability of the government and the political leadership.
Legislative, Executive, and Judicial power is not equally divided among three
different branches of the government. The Executive branch is organized in such
a way that it holds all three powers and has become politically critical. This
paper argues that the governmental power needs to be restrained by establishing
and implementing the mechanism of checks and balances.
Image Attribute: The Temple of Angkor Wat, Cambodia / Source: Wikimedia Commons [Link]
1. Introduction:
The idea of constitutional separation of powers maintains that the
government must be divided into three branchesthe executive, the judiciary, and
the legislature. Each branch must function independent of each other’s
interference, but must have powers to check and balance against each other.
Separation of powers provides for a system of checks and balances amongst the three
branches of the government that can protect the principles of democracy by
ensuring decentralization of power across the government and people. The
provisions of checks and balances guarantee greater governmental accountability
and a check against abuse of power. (Mavedzenge and Coltart, 2014:14). In this
regard, Madison states that the separation of powers should be accompanied by a
system of checks and balances. One branch of the government should have the
ability to obstruct the activities of a rival branch (Grigsby, 2012: 88).
Even over two decades after the UN introduced
democracy, Cambodia has not been able to establish strong institutions that can
safeguard and guarantee the essence of a true democracy. The transition to
democracy in the country is not full-fledged, it lacks consolidation. Even
though five national elections have been held since 1991, the democratic process remains
fragile. The country still faces an urgent need for reconciliation and
reconstruction (Ojendal and Lilja, 2009:14). The lack of institutional
mechanism that can restrict authoritarian tendencies and establish/guarantee
independent functioning of various institutions has led to the issues of ‘good
governance’.
The absence of checks and balances is
resulting in unaccountability of the government and the political leadership.
The opposition party often disregards the Cambodian parliament and claims
institutions as merely a forum for and by the ruling party. Legislative,
Executive, and Judicial power is not equally divided among three different
branches of the government. The Executive branch is organized in such a way
that it holds all three powers and has become politically critical. The
governmental power need to be restrained through the mechanism of checks and
balances that can protect against the executive branch becoming all-powerful.
Cambodia is a multi-party democracy under a
constitutional monarchy. The king remains the head of the state, however, he
does not govern the nation. The government is headed by the Prime Minster, who
is chosen by the head of the National Assembly (Government of Cambodia). The
Constitutional Assembly adopted the Constitution of Cambodia in September 1993
and the amendments to the Constitution were passed on 4 March 1999. The
Constitution provides for separation of powers between the executive and the
legislature, between the legislature and the judiciary and between the
executive and the judiciary. Cambodia’s Constitution enshrines the basic
governing principles: separation of powers; organization and functions of state
institutions; election; and appointment and status of officers. Despite the
fact that the country has been a democracy for over two decades,
constitutionalism has not yet been rooted in the system. Rather, several new
developments have countered the process of constitutionalism (Hay, 2008).
2. Constitutional Law
2. Constitutional Law
Cambodia's 1993 Constitution today remains
little more than a proclamation of intentions. Article 51 stipulates that ‘all
powers belong to the people’ and that they will ‘exercise these powers through
the National Assembly, the Royal Government and the Judiciary’. The
establishment of the three branches of government corresponds closely with the
liberal democratic spirit of the Paris agreements though in practice there is
not yet a separation of powers. This can be seen most clearly with regard to
the National Assembly which was directly elected by the people (Hay, 1998).
Cambodian constitution is a written
constitution, consisting of sixteen chapters and 157 Articles. Articles 1-6
(Chapter 1) include the details of independent, characteristics of independent,
sovereign, peaceful, permanently neutral and non-aligned Cambodia. Articles 7-
30 (Chapter 2) state the details about the role, functions and powers of the
King. The Rights and Obligations of the Citizens are mentioned in Articles
31-50 (Chapter 3). The Constitution recognizes and respects human rights as
specified in the Universal Declaration of human Rights. Article 31 states: All
Khmer citizens shall be treated equal before law regardless of race, color,
sex, language, religious belief, political tendency, birth origin, social
status, wealth or other status.
Articles 51-55 (Chapter 4) state the main
policies of the state. Article 51 obligates that the Kingdom of Cambodia adopts
a policy of Liberal Democracy and Pluralism; Cambodians are the masters of
their own country; people exercise powers through the National Assembly, the
Senate, the Royal Government and the Judiciary; the legislative, executive, and
judicial powers shall be separate from each other. Articles 56-64 (Chapter 5)
provide an overview of the national economy. Articles 65-75 (Chapter 6) outline
the provisions related to education, culture, social affairs. Articles 76-98
(Chapter 7) provide the provisions related to the legislative body, the
Assembly.
Provisions related to the Senate are discussed
in Articles 99-115 (Chapter 8). Articles 116 & 117 (Chapter 9) focus on the
Assembly and the States. Articles 118-27 (Chapter 10) specify the nature of the
Royal Government. Articles 128-135 (Chapter 11) state the roles, functions and
the jurisdictions of the judicial branch. Articles 136 & 144 (Chapter 12)
discuss about the Constitutional Council. In Chapter 13 (Articles 145 and 146),
administrative (provinces, municipalities and districts) set up is discussed.
In Chapter 14 (Articles 147-149), the structure and the functions of the
National Congress are stated. Chapter 15 (Articles 150-153) outlines the
effects, revision and amendments of the Constitution. Articles 154-157
emphasize on the Transitional Provisions of the constitution.
3. Executive Branch
3. Executive Branch
The Constitution of the Kingdom of Cambodia
enshrines the principle of the separation of powers in Cambodian law. Articles
51 states: “The Legislative, Executive, and the Judicial powers shall be
separated. The executive government is formed by the party with the largest
number of seats in the National Assembly at election. It consists of the head
of government (the prime minister), the Council of Ministers, and the head of
state (the King).
The prime minister is appointed by the king on
the recommendation of the President and Vice Presidents of the National
Assembly. The Council of Ministers is named by the prime minister and appointed
by the monarch. “The king is chosen by a Royal Throne Council from among all
eligible males of royal descent; following legislative elections, a member of
the majority party or majority coalition named prime minister by the Chairman
of the National Assembly and appointed by the king” (CIA-The World Fact Book).
Article
7 of the Constitution reinforces formal limitations on the king by stating
“shall reign but shall not govern”. However, Article 17 reads, “The provision
as stated in the first clause of Article 7, ‘the King of Cambodia shall reign
but shall not govern’, absolutely shall not be amended”. This suggests that the
Council of Ministers being the Royal Government of Cambodia is the actual
governing body. The king has been given considerable authority and real powers
as established by the constitution. Article 9 constitutes, “the King shall
assume the august role of arbitrator to ensure the faithful execution of public
powers”. Article 19 grants the king the power to appoint the prime minister and
the Council of Ministers. Furthermore, the king possesses the authority to
appoint, transfer, and removes high ranking civil and military officials. The
King can appoint, transfer, and dismiss upon the request of the Supreme Council
of Magistracy (Article 21).
The king has the power to proclaim national
emergency if the nation is in danger (Article 22); declare war (Article 24);
sign & ratify international treaties and conventions (Article 26). Scholars
argue that vesting so many powers in the ailing king who spent most of his time
abroad can be considered insignificant in practice. As per Article 28, “in case
of illness and medical treatment abroad, the King can delegate his power of
signing the Kram (code) and the Kret (decree) to the Head of State ad interim”.
Full use of powers by the king’s successor can easily jeopardize the democratic
institutions. “Cambodian constitution does not provide for other levels of
democratic participation, apart from electing members of the assembly, such as
directly voting candidates into office in the local and provincial governments”
(Marks, 2010: 232).
The real power is vested in the king and
political leaders controlling the royal government. According to Article 100,
the prime minster is appointed by the king from the representatives of the
winning party in the national assembly on the recommendation of the President
and with the agreement of both Vice- Presidents of the Assembly. This suggests
that the executive branch of the government dominated the political system with
the king performing more than ceremonial functions (Marks, 2010: 232).
Cambodian Center for Human Rights (CCHR) states that the constitutional
principles of the separation of powers and the rule of law have been
systematically ignored over the years. The Royal Government of Cambodia (RGC)
has “turned to a corrupt and politically-controlled judiciary as its primary
tool of oppression, with criminal charges systematically levelled at the
pillars of Cambodia’s fledgling democracy – parliamentarians, the media,
lawyers and human rights activists”. The RGC is able to exploit the law and
violate the constitution is due to the majority gained by the ruling party, the
Cambodian People’s Party (the CPP) in 2008 election (CCHR, 2011).
The Legislative Branch:
The Legislative Branch:
The legislative branch (Parliament) consists
of two houses: the National Assembly (123 seats; members elected by popular
vote for five-year terms) and the Senate (61 seats; 2 members appointed by the
monarch, 2 elected by the National Assembly, and 57 elected by parliamentarians
and commune councils; members serve five-year terms) (CIA-The World Fact book).
Article
90 states: The National Assembly is an organ which has legislative power, and
performs its duties as provided for in the constitution and laws. The National
Assembly shall approve the national budget, State planning, loans, financial
contracts, and the creation, modification and annulment of tax; approve
administration accounts; adopt the law on the general amnesty; adopt or repeal
treaties and International Convention; adopt the law on proclamation of war.
The adoption of the above clauses shall be done by the absolute majority of all
members of the entire National Assembly membership. The National Assembly shall
pass a vote of confidence in the Royal Government by a two-third majority of
all members of the entire National Assembly membership (Government of
Cambodia).
Asia
Human Rights Commission (AHRC) criticizes this article for the categorical
assertion that rules out any other institution or individual intending to make
any laws. Therefore, if any individual, government or department purports to
make any law, that law is considered unconstitutional. However, there could be
a delegation of power to any minister or any government authority to make rules
under any law passed by the National Assembly; but in all such cases, it is
necessary that all such rules should be approved by the National Assembly.
Therefore, if there are any rules made by the government or any department and
if these rules are not approved by the National Assembly, all such rules should
be considered unconstitutional. The power to make rules, being a delegated
power, has to be exercised strictly in accordance with the law passed by the
Assembly and not otherwise (Asia Human Rights Commission, 1998).
The UNDP report suggests that “the parliament
is now not better able to provide checks and balances of the elected government
than in 2005”. The executive branch retains supremacy over legislature (UNDP
Cambodia, 2010:6). In its report, the Committee for Free and Fair Elections in
Cambodia stated that despite the constitutional provision of separation of
powers, the National Assembly is unable to act a check and balance against the
executive branch (COMFREL, 2010:4). Due to its overwhelming majority prior to
and during 2008 elections, the Cambodian People’s Party (CPP) continues to
dominate the executive and legislative branches. Although the constitution
provides an impressive list of functions to be performed by the National
Assembly and the Senate, the two bodies are unable to play any independent
political role. The National Assembly and the Senate rarely initiate or debate
measures proposed by the government before approval (Poole, 2009:56).
According to UNDP, the government’s domination
over the legislative branch prevents the parliament from performing the main
function of initiating/passing laws, oversight and representation. Most of the
draft laws originate within the CPP (UNDP Cambodia, 2010:7). Following the 2008
elections, multiparty democracy is further strained in Cambodia by the refusal
or inability of opposition parties to fully use the limited democratic space
available to them.
The democratically elected opposition does not
to take part in the parliamentary commissions. The opposition argues that
membership selection in the commissions is not fair and demands that a minimum
number of commission chairperson positions should be allotted to them.
Membership in the parliamentary commissions - where most of the debate takes
place - is determined by the majority vote…..all the nine commissions of the
National Assembly are presided and composed by ruling party members (UNDP
Cambodia, 2010:10).
5. The Judicial Branch
Judicial independence is enshrined in
Cambodian constitution with the aim to promote the rule of the law and protect
political and civil liberties which have been ignored in the past (UN, 2009:70)
Article 128 states that the Judiciary is an independent power and it shall
guarantee/uphold impartiality and protect the rights and freedoms of the
citizens. The authority of the Judiciary shall be granted to the Supreme Court
and to lower courts of all sectors and levels (Constitution of Cambodia). The
King of Cambodia shall be the guarantor of the independence of the judiciary
and the Supreme Council of the Magistracy shall assist the King in this matter
(Article 132). According to Article 130, “Judicial power shall not be granted
to the legislative or executive branches”. Article 132 specifies that “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”. Furthermore,
Article 134 stipulates:
"The
Supreme Council of the Magistracy shall be established by an organic law which
shall determine its composition and functions. 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 the judges or prosecutors (Cambodian Constitution)."
As
Article 128 suggests, the Judiciary alone can exercise judicial powers. No
other branch of the government can interfere in its affairs, as any
interference in the administration of the justice department from any personnel
from the Ministry of Justice (prosecutor) is considered unconstitutional. The
Supreme Council of the Magistrates has the right of appointing and removing the
judges.
Dunai and Wagener (2008) argue that despite
the exiting constitutional provisions of fundamental rights, its application
remains subject to limitations. Parliamentarians can most effectively
contribute in achieving the goal of ensuring ‘good governance’ and perform
their constitutional functions through the proper implementation of laws,
governmental accountability, and voter’s representation. Separation of powers
among the three branches of the government provides an opportunity for civil
society to participate in decision-making process and influence outcome.
However, all these constitutional provisions exist only on papers, despite the
fact that the Cambodian constitution is based on the principle of democracy.
The current political system is clearly dominated and controlled by the
executive. The legislature (the National Assembly and Senate) have no scope to
exercise their powers independently. ‘‘The Senate fails to exercise its
constitutional role as a supervisory body, and the judiciary does not have
enough proficient jurists. The executive and judicial branches of government
are exposed to far-ranging party patronage” (Dunai and Wagener, 2008).
Kheang Un argues that the Cambodian judiciary
has never been able to uphold its constitutional mandate due to ingrained
problems within the system that impede its operations. These challenges
include: lack of material and human resources; lack of independence; widespread
corruption at all levels of the government; patron clientalism; intervention
form the executive branch; quest for judicial legitimacy (Un, 2009:75-89). The
last two challenges are discussed below.
Interference from the executive branch and
other powerful individuals (high-ranking government officials) continues to
impede the court affairs. Intervention occurs prior to, during and after the
trial. Judges remain subject to political and bureaucratic pressure. In
political cases, “judges deliver the verdict that fit the guidelines of the
government. A judge said, “We judges have to follow because we know in advance
the dimension of their power” (In Un, 2009:85). The court officials serve the
interests of political parties. Majority of chief judges are CPP that is in
full control. The politicized nature of Cambodian governance makes it
impossible for a neutral judicial system to emerge. Lawyers of the
Non-Governmental Organizations (NGOs) complain about the challenges faced in
representing political matters. Furthermore, widespread corruption severely
hampers the ability of the poor without money and political connection seeking
justice (Un, 2009:88-89).
Lack of
independent operation of the judiciary remains major human rights concerns in
Cambodia. Lack of separation of powers and the continued influence of the
executive over the judiciary heavily affects the fair trial rights. “The courts
are used as political tools to silence opposition and dissent” (World Justice
Project). Thus the “combination of embedded corruption, nepotism, patronage
politics and government interference engender a negative popular perception
towards the judiciary in particular and government institutions in general”(Un,
2009:90). The attempts to introduce judicial reform continue to face strong
resistance.
The
most pressing challenge is that the formal system of checks and balances
stipulated by Constitution is not being translated into the institutions of the
states. The Constitutional Council and the Supreme Council of the Magistracy
that are designed to guarantee separation of power and protect the independence
of the judiciary are not empowered in true sense. Therefore, in the absence of
an effective rule of law, the initiatives to establish an active civil society
can never be accomplished (Hay, 1998).
6. Conclusion:
6. Conclusion:
A close study of Cambodian constitution and
law highlights the major reasons and the challenges faced by the country.
Although Cambodian constitution is one of the most liberal constitutions in
Asia, the darting and implementation of laws remains highly problematic. This
may be the weakest point in the country’s post-conflict political reconstruction
((Ojendal and Lilja, 2009:21). The government can be held accountable for its
attitude towards the constitution and the lack of political will for not
addressing these issues for vested political interests. Additionally, the lack
of effective mechanism to ensure an effective constitutional government is the
main contributing factor to this problem. As mentioned earlier, the excessive
control/interference of the executive branch exerted on the judiciary is the
most significant reason that has affected political legitimacy in Cambodia.
It’s clear that the judiciary and the legislature serve the executive. “Such
blurring of the lines between the branches of government reflects the total failure
of Cambodia’s state institutions” (CCHR, 2011).
Reformation within judiciary is urgently
needed. It’s essential that the government complies with the International
Covenant on Civil and Political Rights, which Cambodia has ratified and
incorporated in its Constitution. The functioning rule of law calls for strong
institutions with clear division of powers among the three branches of the
government, minimum interference of the political leaders in the executive’s
affairs, civil society’s participation in civil and political affairs.
Independent and impartial judiciary is essential for the survival and effective
functioning of constitutional mechanisms established for the protection of
constitutional supremacy, separation of powers, rule of law, and fundamental
human rights (Mavedzenge and Coltart, 2014:11).
About The Author:
About The Author:
Dr. Renu Bhagat is Adjunct Assistant Professor, Department of
Political Science,Queens College, City University of New York and teaches Introduction to Political Science
(PSCI 101) and Theories of Law and Human Rights (PSCI 286).
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Available:
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_______________________________________________________________________
Publication Details:
This research paper originally
published at Journal of Alternative Perspectives in the Social Sciences (2015),
Volume 6 No4,389-401 under Creative Commons License
ISSN 1944-1096 (Online)
ISSN 1944-1096 (Online)
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