Part III

Asia and the Pacific

© Copyright by the Endowment of the United States Institute of Peace © Copyright by the Endowment of the United States Institute of Peace 8 The Process of Creating a New in

Stephen P. Marks

he process of drafting the constitution and repression, especially while the country of the Kingdom of Cambodia, which was under the control of the Party of Demo- entered into force on September 24, cratic Kampuchea (PDK or DK, the latter 1993, was a striking case of peacebuilding acronym being used throughout this chap- T 3 and national reconciliation and was a major ter), popularly known as the . feature of Cambodia’s transition from civil The transition from civil war to a fragile war to fragile . It was the culmi- democracy resulted from the implementa- nation of a transitional period during which tion, under UN supervision, of an interna- © CopyrightCambodia was under the authorityby the of the Endowmenttional treaty by which the four contendingof . Cambodia’s mandate was, Cambodian parties4 and eighteen other thefirst, United to elect a constituent States assembly, which Institutecountries, including of the Peace five permanent it did in May 1993; that body was to trans- members of the Security Council and the form itself into a new national assembly, in principal regional powers,5 agreed to de- accordance with articles 1 and 12 of the Paris tailed conditions for a “comprehensive po- Agreements, which had settled Cambodia’s litical settlement of the Cambodia conflict,” twenty-year conflict.1 Cambodia is one of the terms used in the Paris Agreements.6 the most extraordinary cases in international The agreements and the UN Transitional efforts to promote democratic transitions Authority in Cambodia (UNTAC), estab- in the post–Cold War era.2 The country’s lished pursuant to the agreements, did much democratic transition ended one of the most to lay the groundwork for such a settlement. brutal chapters of twentieth-century barbar- However, they did not and could not achieve ity, during which over a million people out of their goals completely. The agreements’ im- a population of some eight million perished plementation was particularly unsuccessful through civil war, mass murder, starvation, in disarming, demobilizing, and cantoning

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forces; preventing cease-fire violations; - ac quired the creation of a provisional national cessing all territories; and maintaining a government. An unstable power-sharing ar- neutral political environment. This failure rangement between the Cambodian People’s to implement the military provisions of the Party (CPP) and the National United agreements was the result of a calculated risk Front for an Independent, Neutral, Peaceful, by the United Nations, which sought to pro- and Cooperative Cambodia (FUNCINPEC ceed with the elections. This calculation was by its French acronym) and the continued not unwarranted, as the Cambodian people military confrontation with the DK weak- did participate massively in free and fair ened the application of the constitution in elections. However, though the May 1993 the mid-1990s. These developments culmi- elections were a defining moment of the nated in a coup in July 1997 and the consoli- mission, they were not an end in themselves, dation of power around , followed but rather a means to drafting and adopting by the troubled election of 1998 and the sus- a new national constitution as a precondi- pension of foreign aid, and the difficulty in tion to setting up a democratic government. forming a government after the 2003 elec- It is most accurate to describe the essence tion. The constitution has not functioned as of the Cambodian process as an exercise in initially drafted, with unacceptable delays in political self-determination through a UN- creating a constitutional court and Supreme managed transition to a democratic form of Council of the Magistracy and in adopting government. The new system was based on amendments to establish a senate. Violence a constitution that both acknowledges Cam- and corruption mar the democratic process. bodian tradition and current political forces, Yet the essential structures of Cambodian de- and establishes a parliamentary form of gov- mocracy are in place, civil society continues to ernment under a relatively powerless monar- be vigorous and courageous, and the economy chy, with a relatively robust bill of rights but is improving. weak mechanisms for protecting those rights. This chapter reviews the historical back- UNTAC would have failed if the elections, ground leading up to the process of conflict however free and fair, had not resulted in the resolution and addresses the structure of the adoption of a constitution and the transfer constitution-making process, public partici- ©of sovereignty Copyright to the new government by under the pation Endowment in the process, the post-conflict of role that constitution.7 The process leading to the of the political parties, the timing and dura- constitution’sthe United adoption and the installationStates of tion Institute of the constitution-making of process,Peace the a new government has been analyzed from role of the international community, the role the perspective of post-conflict nation build- of international law, and key substantive is- ing8; however, few works have addressed sues dealt with in the process. The conclu- the constitutional process itself or the legal sion draws attention to negative outcomes, system.9 such as the lack of transparency at critical Despite a disappointing process, the final moments, manipulation of the process by product of the constituent assembly’s work Prince (who was re- contains a reasonable blueprint for democratic stored to the throne), and the consolidation governance. Nevertheless, the path to Cam- of authoritarian personal power by Hun Sen. bodian democracy has not been smooth. The Those outcomes are then weighed against secession of several provinces under Prince the positive achievements of putting in place Chakrapong following the election imme- the legal and institutional basis for demo- diately threatened the entire process and re- cratic governance—the constitution and the Framing the State in Times of Transition 209

separate branches of government—and pro- ments” . . . it was incumbent upon him to have viding a degree of democratic empowerment the power and duty to rule over the broad uni- versal expanses, and even “to master the earth of civil society. spirits” . . . the absence of a sovereign implied the lack of effective communication between the celestial powers and the world of men; without Historical Background him you have complete chaos.13 Influence of Cambodia’s History Patronage and clientship at the village on the Constitution-Making Process level remained an essential part of the social Cambodia’s ancient, colonial, and recent his- structure up to the nineteenth century, as the tory all influenced the constitution, and to “rectitude and permanence of these relation- dwell exclusively on the impact of the civil ships had been drummed into people from war overlooks the two other major historical birth.”14 Chandler cites Cambodian proverbs influences. Like many countries in Southeast and didactic literature that “are filled with Asia, Cambodia’s political traditions derive references to the helplessness of the individ- primarily from Indian culture and the abso- ual and to the importance of accepting power lute rule of god-kings, as well as from Bud- relationships as they are.” In addition to the 10 dhist beliefs. A legal system and formal king, his high-ranking officials (okya), and constitution defining the functions and pow- the village leaders (chaovay sruk), members of ers of national institutions only arrived with the royal family were an influential connec- French colonialism and the realization of tion between the people and their king.15 independence. Attitudes toward the consti- Justice in appears to have been a tution and law in general continue, neverthe- matter of royal prerogative, with particularly less, to be affected by past traditions, which brutal forms of determining responsibility date from the age of the that and meting out punishment.16 Reminiscent ruled from Angkor from the ninth to the of practices in medieval Europe, it does not fifteenth centuries. As an eminent historian appear to provide much of a model for human of Cambodia, David Chandler, explains, “a rights. More generally, the social structures Cambodian king, like most Chinese emper- of the past and the place of the individual in ors, could rule only by extending networks of the Khmer cosmology were adapted under © Copyrightpatronage and mutual obligations by outwardthe Endowmentmodern ideas of government but notof entirely from his palace, at first through close associ- eliminated by the introduction of constitu- theates andUnited family members Statesbut becoming dif- Institutetions in the mid-twentieth of century.Peace fuse—and more dependent on local power- The Angkor tradition is reflected in three holders—at the edges of the kingdom.”11 The features of the 1993 constitution. First, in king was distant from the people, who rarely paragraphs 1, 2, and 3 of the preamble, saw him. Even in the nineteenth century, the constitution refers to Cambodia’s “grand villagers had only a vague idea of the king, civilization of a prosperous, powerful, and generally believing him to have the power to glorious nation whose prestige radiates like influence the weather, to “dispense true jus- a diamond” and to “the prestige of Angkor tice,” and to be “the only political source of civilization.” Second are the constitutional hope among peasants.”12 François Ponchaud provisions, particularly in articles 68–71, con- explains that cerning the preservation, dissemination, and in the traditional mindset, the king, at the na- teaching of Khmer languages and culture. The tional and even universal planes was the key third dimension of Cambodia’s ancient past for the “preservation of harmony with the ele- is the restoration of . As one con- 210 Stephen P. Marks

stitutional scholar has observed, “monarchy supported pro-Vietnamese government, and has witnessed the most glorious moments of the China-supported DK. After years of Khmer civilization. Its millennial embedding deadly warfare and high stakes geopolitics, makes it the principal feature of the political it seemed very unlikely that the groups’ lead- tradition that still prevails among the peasant ers would engage on their own initiative in a masses.”17 process of reconciliation and construction of The colonial period also strongly - influ national institutions for power sharing. The enced the constitution, providing the model end of the Cold War severely weakened the on which the drafters drew most heavily. The political support each faction received from struggle for independence, which Cambo- the outside, but the divides among them dia gained on November 9, 1949, resulted in showed no signs of narrowing. both a strong influence of French legal tradi- The impact of the civil war and its reso- tion and a firm commitment to national sov- lution on the constitution begins with the ereignty and nonalignment. Thus, the 1993 mutually hurting stalemate that led all four constitution contains many elements of the factions to recognize that none could win 1947 constitution as well as a reaffirmation militarily, that they could no longer rely on of the kingdom’s position, already in the con- outside support, and that they had to work stitutions of and the something out. The earlier initiatives in the People’s Republic of Kampuchea, as an “in- 1980s for a negotiated settlement by , dependent, sovereign, peaceful, permanently the Soviet Union, the Coalition Government neutral and non-aligned country.”18 of Democratic Kampuchea (CGDK), Indo- Beyond historical and colonial influences, nesia (the Informal Meeting, or JIM the termination of the conflict was a precon- and JIM2), and the Paris International Con- dition for the constitution-making process. ference on Cambodia (PICC) were unsuc- Cambodia had been in a civil war virtually cessful because the situation was not ripe, but since 1970, when came to power the efforts did create a decade of proposals on following a coup, only to be overthrown in a wide range of issues. By the time of Gareth 1975 by the DK, who destroyed economy Evans’s Australian Plan in 1989, picking up and society until the Vietnamese invaded on proposals by U.S. Congressman Stephen ©in 1978 Copyright and installed the People’s by Republic the Solarz, Endowment the parties were more convinced ofthat of Kampuchea in 1979. The latter was- re they had to accept a settlement,19 though the sisted by FUNCINPEC, the Buddhist party Cambodian factions and other concerned Khmerthe People’s United National Liberation States Front parties Institute focused more on withdrawal of Peace of Viet- (KPLNF), and the Maoist movement (DK) namese forces and delineating the transi- for a decade until the Paris Conference on tional powers of the UN and the Supreme Cambodia was convened and eventually suc- National Council (SNC)—the interim rep- ceeded in getting all four factions to agree to resentative body created by the Paris Agree- a peace process centering around an election. ment—than on the role of a constitution or the preferred process for producing one. The shape of the constitutional arrangement was Impact of the Civil War not really agreed upon until the fourth SNC Twenty years of civil war created hardened meeting in New York in September 1991, at and virtually irreconcilable ideological and which it was decided that the peace process political postures among the U.S.-supported would lead to an electoral system of propor- anticommunist resistance, the Soviet Union– tional representation by province and a per- Framing the State in Times of Transition 211

manent system of liberal democracy.20 When of equal suffrage, meaning that every vote has the PICC reconvened at the end of October the same value. Equal and universal suffrage 1991, it adopted four final agreements, in- supposes nondiscrimination. Seventh, ballots cluding an annex containing constitutional must be secret. Finally, Annex 5 requires that principles.21 the constitution provide for full and fair pos- sibilities to organize in order to participate in the electoral process. This requirement relates The Influence of the Paris Agreements to the formation and functioning of political The Paris Agreements required the con- parties, the essential feature of pluralism, and stituent assembly to produce a constitution the possibility of conducting a campaign to that “shall declare that Cambodia will apply attract voters. The eight elements cover the a liberal democracy, based on pluralism.”22 formal aspects of what is understood by “lib- The term “liberal democracy” has been- at eral democracy, on the basis of pluralism.” tributed to Prince Sihanouk, who had called The Paris Agreements properly dealt with for Cambodia to be a liberal democratic state all of the main post-conflict issues—cease- during earlier negotiations.23 It seems likely fire, repatriation, restored sovereignty and that he used this term in the context of the unity, transitional arrangements, and reha- negotiations because he assumed it was what bilitation and reconstruction—except for the the U.S. representatives and other key par- issue of responsibility for past abuses. The un- ticipants in the Paris Conference wanted to willingness to address the latter issue went so hear. The concept certainly does not reflect far as to exclude the word “genocide”25 from the principles of government he applied the text of the Paris Agreements, which re- when he was king or prime minister in the ferred instead to ensuring that “the policies 1950s,24 and questions remain regarding the and practices of the past shall never be al- adaptability of the western political theory lowed to return.” Moreover, none of the vari- of liberalism to the conditions of a Buddhist, ous drafts of the constitution referred to pros- extremely poor, and agrarian society such as ecutions or truth and reconciliation; they did Cambodia. The Paris Agreements do not de- not even mention the policies and practices fine the term, although they enumerate eight of the past.26 The need to include the DK and © Copyrightelements of an electoral process by that thethe con- EndowmentChina in the agreement and the of Buddhist stitution must mention and that, presumably, belief in reconciliation and love without ret- are part of the definition of liberal democ- ribution are strong arguments in favor of such theracy. United First, elections must States take place regu- Institutesilence, but impunity ofcontinues Peace to be a major larly, which one can assume to mean that the concern of Cambodian justice. Perhaps alien- terms of national assembly members must be ating the DK during the PICC was not an limited and that members must either be re- option and the Chinese vote was needed in elected or a new candidate elected to occupy the UN Security Council. But DK refusal to a seat in the assembly after the term expires. respect the Paris Agreements and continued Second, elections must be “genuine,” presum- violence would have justified a harder line at ably meaning that the process must be free the time of the constitution’s drafting. of manipulation. This criterion is close to the In any event, the product of the concept of fairness in an election. Third and constitution-making process in 1993 was fourth are the rights to vote and to be elected. essentially a reversion to previous constitu- Fifth, suffrage must be universal. Sixth, and tions—combining elements of the 1947 and closely related to universality, is the concept 1989 , with some liberalizing 212 Stephen P. Marks

improvements—rather than a newly struc- in South Africa might have encouraged less tured constitution built on Annex 5. This il- brute politics and more democracy. lustrates how Cambodian politics tended to outweigh the United Nations’ role as guaran- tor of the integrity of the Paris Agreements. Structure of the Process Mixing the 1947 and 1989 constitutions, During Cambodia’s transition in 1992–93, that is, combining the royalist electoral vic- though the constitution-making process was tors’ conception of stable government with guided by the United Nations, sovereignty re- CPP and State of Cambodia (SOC) habits mained theoretically vested in the representa- as de facto government, makes sense in Cam- tives of the Cambodian people. For this pur- bodian politics. However, the starting point pose, the Paris Agreements created the SNC of the agreements was an internationally as an interim representative body. Headed agreed-upon definition of what was meant by Prince Sihanouk, the council consisted of constitutionally by a liberal democracy on the six members from the SOC—controlled en- basis of pluralism. UNTAC judged unwisely tirely by the CPP—and two members from that it should respect Cambodian ways by al- each of the three other factions. The Paris lowing, first, the DK to behave contrary to Agreements characterized this body as the the letter and the spirit of the agreements, “unique legitimate body and source of au- and second, FUNCINPEC and the CPP to thority in which, throughout the transitional resolve a disputed election through pure poli- period, the sovereignty, independence and tics. Its merits notwithstanding, the constitu- unity of Cambodia are enshrined.”28 For its tion was a victim of that politicization. part, the SNC delegated “all powers neces- One can argue that the constitution is sary” to the United Nations to implement better grounded in Cambodian culture than the agreement.29 This delegation of powers would have been the case if the United Na- placed an extraordinary amount of author- tions had succeeded in making the parties ity in UN hands. In practice, however, the comply strictly with the ideas of constitu- United Nations did not exercise all of the tionalism agreed to in Paris, or provided authority that Article 6 granted to it; rather, more guidance on constitution making be- it used the SNC as a sounding board, and ©yond Copyright the guidelines for an electoral by process the the SNCEndowment met regularly (usually monthly) of to that were contained in the Paris Agreements. endorse UNTAC proposals. However, restoring politics as usual allowed Prince Sihanouk could be a dynamic chair forthe much politicalUnited violence, extreme States delays in of Institutethese meetings, but he usuallyof deferredPeace to creating the Supreme Council of the Mag- the special representative of the secretary- istracy, continued impunity for the DK and general (SRSG) and head of UNTAC, Yasu- other politically protected perpetrators of shi Akashi. A particularly significant exam- abuse, restrictions on press freedoms, and ple of Sihanouk’s ultimate influence on the the lack of an independent judiciary. These process, however, could be seen at the SNC problems would not have been eliminated meeting in Sihanouk’s palace in Siem Reap merely by adopting a constitution that met on September 10, 1992. Wanting to help the the overly optimistic claim of Chem Sngoun, SNC prepare for the tasks that the constit­ former minister of justice, who died in 1999, uent assembly would face, Akashi placed an that it was “neither monarchical, nor repub- item relating to the draft constitution on the lican, but a democratic constitution.”27 But a agenda of the SNC and distributed a brief, constitution-making process and constitu- factual analysis prepared by Professor Regi- tion that were closer to what was achieved nald Austin, the head of the electoral com- Framing the State in Times of Transition 213

ponent and himself a professor of law and • Selection of a drafting committee from former dean of the law school of the Univer- among the members of the constituent sity of Zimbabwe. The Austin paper delib- assembly. erately avoided any suggestion that UNTAC • Adoption by the assembly of the commit- intended to write the constitution or propose tee’s draft. draft texts; it merely set out generally the is- • Proclamation by the king of the constitution. sues that must be addressed when drafting • Transformation of the constituent assem- a constitution, such as name, flag, delimita- bly into the national assembly. tion of territory, and form of government. • Winding down of the process and the de- The SRSG intended to suggest an SNC task parture of UNTAC. force that would consider the issues and pre- In retrospect, although the structure of the pare the ground for the constituent assembly. political process set out in the Paris Agree- Following Professor Austin’s presentation, ments may have been adequate for bringing Prince Sihanouk expressed his warmest con- peace to the territory, perhaps more thought gratulations, then proceeded to formulate should have been given to the structure of his preferences through a section-by-section the constitution-making process itself. Had review of what the future Cambodian con- the Paris Agreements provided for the ap- stitution should contain. He would punctu- pointment of an inclusive and indepen- ate each point by addressing the SRSG with words to the effect of “that’s what we should dent constitutional commission to direct a do, isn’t it, Mr. Akashi?”30 In this manner, he constitution-making process that included a stated his positions on the name, flag, na- comprehensive program of public participa- tional anthem, borders, type of government, tion, the process itself may have been more institutions of government, independence of transparent and democratic. In turn, perhaps the judiciary, requirements for the presidency, a more democratic and transparent process and so forth. He even proposed a senate would have contributed to more transparent (“for men with white hair, like on Dallas”),31 and democratic political processes than those which was eventually created in 1999. Though that exist in Cambodia today. anticipating the outcome of the work of © Copyrightthe constituent assembly, formally by Sihanouk the EndowmentThe Election and Functioning of was merely endorsing the idea of creating an of the Constituent Assembly theSNC Unitedtask force to study theseStates issues, the im- Institute of Peace portance of which was so great, he felt, that The 120 members of the constituent assem- both he and Akashi should participate. bly were elected in accordance with the Paris As explained above, the constitution- Agreements, Article 12 of which reads as making process was structured around a follows: constituent assembly. The overall transition The Cambodian people shall have the right to process, of which the constitution-making determine their own political future through process was a part, took place in seven phases: the free and fair election of a constituent as- sembly, which will draft and approve a new • Cease-fire, demobilization, and creation of Cam­bodian Constitution in accordance with a neutral political environment. Article 23 and transform itself into a legislative assembly, which will create the new Cambodian • Election of the constituent assembly Government. This election will be held under through a UN-run election, the outcome United Nations auspices in a neutral political of which was declared free and fair by the environment with full respect for the national SRSG and Security Council. sovereignty of Cambodia. 214 Stephen P. Marks

An annex set out UNTAC’s mandate re- formula of the electoral law, was accorded garding the organization and conduct of the fifty-eight seats in the constituent - assem election, including the adoption of an elec- bly. The CPP, then the governing party, ran toral law and code of conduct, abrogation of second with 38.23 percent of the votes, re- existing laws where necessary, voter educa- ceiving fifty-one seats. Next was the- Bud tion, voter registration, registration of par- dhist Liberal Democratic Party (BLDP), the ties and candidates, fair access to the media, party of the KPLNF, with 3.81 percent and monitoring the campaign and balloting pro- ten seats. Finally, Mouvement de Liberation cedures, conducting balloting and polling, Nationale du Kampuchea (MOLINAKA), facilitating foreign observers, investigation the only party elected that did not represent of complaints and taking corrective action, one of the SNC factions, came in with 1.37 and, in the end, “determining whether or not percent, receiving one seat.33 the election was free and fair and, if so, certi- At the SNC meeting of June 10, 1993, fication of the list of persons duly elected.”32 Special Representative Akashi, on behalf of The election was conducted pursuant to the secretary-general, declared that the elec- the electoral law drafted by UNTAC and tion had been on the whole free and fair. On submitted to the SNC on April 1, 1992, but June 15, 1993, the Security Council endorsed not adopted until August 5, 1992. The law the results.34 Prince Sihanouk convened the was promulgated on August 12; registration constituent assembly on June 14 and, follow- of parties began on August 15. By January ing tradition, chose its eldest member, Son 27, 1993, twenty out of the twenty-two pro- Sann, head of the BLDP, as president. Co– visionally registered political parties applied prime ministers Hun Sen of the CPP and for official registration. Voter registration be- Prince Ranariddh of FUNCINPEC headed gan on October 5, 1992, for three months, the interim government. and then was extended to January 31, 1993. On June 30, 1993, the constituent as- In that time, 4.6 million Cambodians regis- sembly appointed a twelve-member draft- tered, representing nearly all estimated eli- ing committee, with six members from gible voters in zones to which UNTAC had FUNCINPEC, five from the CPP, and one access. The DK did not give access to areas from BLDP. The committee was headed by ©under Copyright its control, although hundreds by of vot the- Chem Endowment Sngoun, former head of the legislative of ers from those areas managed to reach poll- commission of the SOC national assembly, ing stations and vote. who had been designated minister of justice theVoting tookUnited place from May States 23 to May by Institute the interim government. of This Peace committee 28, 1993, in all twenty-one provinces. From developed a draft of the constitution over the May 23 to May 25, 1,400 fixed polling sta- course of that summer; its draft was kept se- tions and 200 mobile teams were in opera- cret from the 108 other assembly members, tion. Some fixed stations were converted to as well as from interested non-governmental mobile units for the final three days (May organizations (NGOs), although its con- 26–28). Despite DK disruption of voting tents were leaked. The secrecy of the proce- in some places and intensified political vio- dure was in accordance with assembly rules, lence, 4,267,192 voters turned out—89.56 which had been adopted without debate or percent of those that registered—and a to- discussion at the meeting on June 30. It has tal of 4,011,631 valid ballots were cast. The been reported that the vote on these rules royalist FUNCINPEC won 45.47 percent was secret and not even tallied.35 In the sec- of the votes and, according to a complicated ond week of September 1993, the drafting Framing the State in Times of Transition 215

committee released its draft, about the same tion during an elaborate ceremony in the time as FUNCINPEC made available its ornate Royal Palace. Akashi’s voice broke monarchical draft. with emotion when he announced at the air- Although the drafting committee appar- port as he left two days later, “Cambodia has ently worked hard and independently, the made a giant step on September 24 when assembly as a whole did not show much in- it promulgated the new Constitution” and dependence from the two dominant parties, gave UNTAC a grade of “nine out of ten.”37 the CPP and FUNCINPEC, or their lead- Other countries also gave UNTAC consider- ers, Hun Sen and Prince Ranariddh. Rather able credit for the outcome.38 Charles Twin- than present a single draft prepared by the ing, head of the U.S. mission to the SNC and committee to Sihanouk, who had once again afterward appointed ambassador to Cambo- removed himself to , the two lead- dia, remarked that the adoption of the con- ers traveled to the North Korean capital car- stitution “carries out completely the designs rying two constitutions, a republican version, of those Cambodians and non-Cambodians most likely containing language proposed by who drafted the Paris Agreements.”39 the CPP, and another restoring the monarchy, A few days after the proclamation of the drafted by FUNCINPEC. Milton Osborne constitution, the Security Council welcomed describes what happened as follows: “Siha- the accession to the throne of His Majesty nouk commented publicly that the decision Samdech Preah Norodom Sihanouk and as to whether he once again became king was “the formation of the new Government of the Cambodian assembly’s, but there was no all Cambodia, established in accordance doubt in the minds of those who had seen with the constitution and based on the re- him that he expected to become king again. cent election.”40 And, indeed, he is reported to have made many handwritten amendments to the mo- narchical constitution shown to him for his Control over the Process approval.” He then describes how, after plans The election of the constituent assembly ap- to restore monarchy were known in Phnom pears to have been a wise precondition to the Penh, “Sihanouk called for the population constitution-drafting process, even though © Copyrightto renounce the monarchy andby his projectedthe Endowmentthe members ultimately did not exerciseof in- role as king. To further compound confusion, dependent control of that process. None of the prince also announced he was ending his the previous constitutions could be regarded thepresidency United of the SNC.” OsborneStates concludes Instituteas politically neutral; of simply Peace giving new life that this “was all very much of a piece with to one of them would have been unaccept- Sihanouk’s behaviour in the past. Once the able to one or more of the parties. Further- members of the assembly begged him to more, each had defects unacceptable for a change his mind, he graciously did so. He transition involving the United Nations, in had shown that he was truly wanted.”36 light of the organization’s standard-setting Completely sidelining its own draft- role regarding democratization and human ing committee, the assembly examined the rights. That parts of the 1947 constitution FUNCINPEC draft edited by Sihanouk for were included in the end is a result of pecu- five days, finally adopting the text on Sep- liarities from Sihanouk’s last-minute jockey- tember 21, 1993, by a vote of 113 to 5, with ing and shifting. It could not have been the two abstentions. On September 24, 1993, public basis for committee deliberation, as Prince Sihanouk ratified the new constitu- the committee’s mandate was to implement 216 Stephen P. Marks

Annex 5 of the Paris Agreement. Neverthe- electoral law, should be applied vigorously. less, the secrecy of the process made it pos- This was not done. sible for the most influential political leaders However, there was nothing basically to draw on whichever of the two earlier con- wrong with the electoral system, nor with the stitutions—1947 or 1989—reflected their fact that UNTAC was completely in charge. political interests most, rather than allowing The United Nations failed to translate the fic- the drafting committee to draw on the vari- tion of “existing administrative structures”— ous models and principles introduced during a concept that was supposed to treat all four the transition period. factions in the same way—into fact. Under It was quite appropriate for the Paris those circumstances, the de facto government, Agreements and the electoral law to em- in this case the SOC/CPP, was positioned to phasize freeness and fairness in the election influence the process unduly. The situation process and to provide for registration of all would have been worse had UNTAC not citizens, exiles, and refugees. These aspects been in charge, as illustrated by the difficul- were clearly set out in the Paris Agreements. ties of the Cambodian-run election in 1998. The agreements also gave responsibility to As mentioned above, the transition pro- UNTAC to draft the electoral law and to cess called for the constituent assembly to run the elections. The electoral law was thor- become the national assembly. In Cambodia’s ough but perhaps excessively detailed, more case, this appears to have been wise. This was in the mode of Anglo-American legal draft- the first free election for almost all Cambo- ing than the French mode. Its qualities derive dians, who tended to believe they were voting from the director of the electoral component, for peace. Had the process required them to Reginald Austin, who drew heavily on expe- vote twice, once for a constitutional assembly rience with Namibian elections.41 Only a few and again for parliamentary representatives, people in UNTAC, especially in the elec- the risks would have been high that ordi- toral component, and some advisers to the nary people would not understand and that major parties understood this fifty-six-page the opportunities for political manipulation law thoroughly. The most disputed provi- would multiply. The more difficult question sion related to defining who is Cambodian about the process is whether an inclusive ©for theCopyright purposes of voting eligibility. by It took the and Endowmentindependent constitutional commission of four months to resolve the matter, with the could have been appointed to direct the na- United Nations partially acceding to alter the tion through a phased process of constitu- languagethe fromUnited the Paris Agreements States in order tion Institute making. A commission of of thisPeace nature to exclude ethnic Vietnamese. could have moved the process from one that The provisions of the law relating to set- was secretive, elite driven, and opaque to tling disputes called for a panel of outside one involving the public participation and judges, which the SRSG refused to con- transparency that has characterized other vene. This was unfortunate, as the disputes constitution-making processes. The drafting led to violence and loss of credibility for the committee’s sincere and independent efforts United Nations, which was unable to control suggest that there was some potential for such Prince Chakrapong’s attempted secession. It an approach. However, the near-complete is expected that losing parties challenge the absence of competent jurists, to say nothing procedure and that irregularities occur. Fair of constitutional experts, would have made and impartial procedures to settle disputes, selecting a commission for this purpose chal- such as the ones provided for in the UNTAC lenging, to say the least. Framing the State in Times of Transition 217

Thus, in the end, although the mandate, lar engagement with the constitution-making timetable, and rules for the election of the process grew out of the educa- constituent assembly were controlled by the tion effort of UNTAC and its partners among United Nations, UN control over the transi- indigenous NGOs. The mandate for human tion as a whole and the constitutional process rights education, which was broadened to in particular was in fact more formal than real. include education about constitutional prin- Constitution drafting is a fundamental act of ciples, was extensive. The Paris Agreements sovereignty and should, therefore, be as free obligated Cambodia “to support the right of of foreign influence as possible. However, in all Cambodian citizens to undertake activi- Cambodia, effective control by political fac- ties which would promote and protect hu- tions weakened both the sense among the man rights and fundamental freedoms.”42 population that the constitution was theirs Annex 3 referred to the rights, freedoms, and the constituent assembly’s compliance and opportunities of all Cambodians to take with the requirements of the Paris Agree- part in the electoral process; such rights in- ments. The United Nations might have exer- cluded freedoms of speech, assembly, and cised more influence to ensure that both the movement, as well as fair access to the media spirit and the letter of the Paris Agreements for registered political parties. The secretary- were respected, and that some degree of op- general’s report to the Security Council on portunity for public participation in the pro- Cambodia stated that “the development and cess was provided. Such a role of active ref- dissemination of a human rights education eree would not have meant foreign control program is foreseen as the cornerstone of over how people draft their constitution— UNTAC’s activities in fostering respect for and hence a questionable interference in human rights.”43 To fulfill its human rights political self-determination—but rather an education mandate, the education, training, effective and efficient approach to carrying and information unit of UNTAC’s human out the functions that the Cambodian par- rights component developed a strategy and ties, along with other signatories, assigned to plan of action.44 After determining that the UNTAC in the Paris Agreements. mandate included all levels and types of edu- The way the constitution-making process cation, the next step was to plan and imple- © Copyrightturned out was logical. FUNCINPEC by the did Endowmentment a strategy of identifying target of groups, win the election and, in the end and with establishing goals for each group, specify- Sihanouk as ultimate arbiter, got its way re- ing the requisite financial resources, setting thegarding United the constitution’s Statescontent. However, Institutea timetable, and carrying of out Peace and evaluating it was a confused process, and the confusion the activities. occurred because the United Nations did not UNTAC’s education and information exercise its assigned functions and was too efforts were directed at formal education sensitive to the sovereignty issue. at all levels and at informal education for the emerging civil society. The secretary- Public Participation in the Process general’s report called for UNTAC “to col- laborate with non-governmental organiza- Pre- and Post-Constitution Public Education tions (NGOs) operating in Cambodia for and Participation this purpose as well as to encourage the Efforts to engage the public in the constitu- establishment of indigenous human rights tional process mainly consisted of informa- associations.”45 The human rights compo- tion dissemination and education. The popu- nent’s strategy was to work with existing 218 Stephen P. Marks

human rights and women’s groups to en- cent. The component taught human rights hance their capacity to act effectively as courses in and in the provinces, NGOs, and to train their trainers, who could providing both basic education (introduction then conduct human rights education activi- to concepts) and in-depth training of train- ties throughout the provinces. The mandate ers for these associations. They were also pro- stated that “UNTAC would also work closely vided with trust-fund grants to conduct their with . . . special groups, [including] those in- own human rights education activities. dividuals best placed to be further dissemi- It is fair to estimate that the component’s nators of information, such as teachers and education and training directly reached community leaders.”46 The Buddhist clergy ­approximately 120,000 people. The figure was a particularly effective vehicle to reach for mass communication is in the millions, the public at large, especially in remote areas. through the dissemination of hundreds of The experience with human rights education thousands of leaflets, brochures, stickers, bal- for each of the targeted constituencies—law loons, comic books, and posters, as well as the enforcement, teachers, civil servants, judges, broadcasting of highly popular radio and tele- human rights associations, monks, health vision programs.47 The mass-communication professionals, and women’s groups—paved messages disseminated through radio and the way for the shift to constitutional literacy television were simple, focusing on basic as the election approached. awareness of the significance of the constitu- The component’s strategy for NGOs was tion and its importance for the human rights implemented in part through a trust fund of the population. Meanwhile, Cambodian project called the Human Rights Task Force human rights associations were a visible pres- for the Cambodian Elections. The task force ence in virtually every province, proactively prepared human rights activists from each seeking to inform the population about the of the main indigenous human rights asso- significance of the new constitution. The pop- ciations to monitor human rights during the ulation’s receptiveness to the civic education election. As a rule, these associations provided that the international community undertook by far the largest numbers of election observ- in fulfilling UNTAC’s human rights educa- ers registered by the electoral component. tion mandate, including constitutional liter- ©The Copyright task force facilitated the planningby andthe acy efforts,Endowment demonstrated that the population of coordination of activities for these groups; it would likely have been receptive to broad di- was so successful that the entity continued rect participation in the constitution-making afterthe the elections United as the Cambodian States Human process Institute if it had been made of available. Peace Rights Task Force with additional funding from the trust fund. This project was an ex- ample of how indigenous human rights as- NGOs, the Clergy, and the Press sociations and women’s organizations were in the Constitution-Making Process both partners and learners in the component’s The civic education of the population de- human rights education effort. The compo- scribed above served concurrently to foster nent’s education strategy focused particularly the development of a vibrant civil society, on women’s associations because, even more which eventually came to demand a role than in most other countries, women are the in the constitution-making process. NGOs bedrock of Cambodian society, comprising concerned with human rights, women’s is- a disproportionately high 63 percent of the sues, and economic development, organiza- population. Taken together with their de- tions representing the Buddhist clergy, and pendent children, the figure rises to 75 per- journalists were courageous and significant Framing the State in Times of Transition 219

in both creating a popular awareness of the Khmer continued to educate the population constitution-making process and monitor- about participatory democracy and push ing the freeness and fairness of the constitu- for a sense of accountability on the part of ent assembly elections. elected officials and civil servants. In June The proliferation of NGOs indepen- 1994, nine human rights NGOs founded the dent of state and party structures has been Cambodian Human Rights Coordination described as the “first step towards a civil Committee to strengthen links and improve society in Cambodia after its destruction information exchange. In July, August, and between 1975 and 1978.”48 During the September 1994, the Cambodian Institute transitional period, UNTAC registered as- of Human Rights organized four month- sociations and was quite liberal in approv- long constitutional workshops for professors ing applications. Human rights NGOs were at the law school, government leaders, mem- the most influential of the groups in the bers of the assembly, persons trained in law, constitution-making process. Five human and judges, in an effort to help them better rights groups were functioning in Cambodia understand the constitution and take it more during the transitional period with a com- seriously. bined claimed membership of over 150,000. and Buddhist monks were se- After UNTAC’s departure, seven more hu- verely victimized under the Khmer Rouge. man rights NGOs emerged. Today, an es- According to a leading authority on the timated forty NGOs are active in human period, “Khmer Rouge policy toward Bud- rights. The period of constitution making dhism constituted one of the most brutal saw the founding of a coalition of fourteen and thoroughgoing attacks on religion in Cambodian NGOs called Ponleu Khmer modern history.”50 The population of monks (Cambodian Illumination), which defined was reduced from about 60,000 to less than a strategy for lobbying the constituent as- 1,000.51 Under the PRK and SOC, monks sembly to press for strong human rights pro- were tolerated, although supervised by the visions, especially regarding the rights of National Front for Construction and Defense, women. The strategy was implemented with an organ of the party.52 Buddhism flourished a remarkable degree of courage, initiative, again after the arrival of the United Nations, © Copyrightand perseverance. As the by election the of the Endowmentand several monks who returned fromof exile constituent assembly drew near, a women’s became leaders in the human rights move- movement emerged in Cambodia, demand- ment. The Venerable Maha Ghosananda, theing a Unitedrole in crafting the States new constitution. Institutethe supreme patriarch of and cofounderPeace of the During a National Women’s Summit on Inter-Religious Mission for Peace in Cam- March 5­–8, 1993, 109 women from eight bodia, became head of Ponleu Khmer at its provinces spoke out on this issue. Socua founding in December 1993. During this Mu Leiper, one of the organizers and also period, Buddhist clergy organized marches a founder of Ponleu Khmer, said, “We want and teach-ins, lobbied governmental and to participate at all levels of policy-making, parliamentary leaders, and provided spiritual including drafting the new constitution.”49 guidance to the population, which is 90 to 95 The NGOs favored detailed human rights percent Buddhist. The clergy were the prin- provisions based on international standards, cipal vehicle for popularizing constitutional- with effective enforcement procedures, but ism and human rights in remote areas. in the end, they were disappointed. Never- Freedom of expression was generally re- theless, after the proclamation of the con- spected during the transitional period, and stitution and UNTAC’s departure, Ponleu there was hope that it would continue to 220 Stephen P. Marks

thrive under the new constitution, which specifies human rights fairly clearly and stipu- guarantees freedom to express opinions and lates that there should be a separation of pow- 53 ers, but on the other hand it concentrates the to publish. By the time the constitution decision-making power of the state in the hands was adopted, some twenty newspapers were of a few people. While the principles stipulated published in Khmer, English, French, and in the constitution are good, for example that Chinese, some of which criticized the gov- “the power comes from the people,” there is no ernment and its leaders freely.54 Throughout check on the power of the president. . . . When the drafting of the constitution, the me- power is concentrated in the hands of only a few people, how can human rights be protected? dia covered the issue, although most of the Khmer-language press was partisan. The Ponleu Khmer also denounced the secrecy of United Nations Education, Scientific, and the drafting process as a denial of participa- Cultural Organization (UNESCO) ran a tory democracy. In a letter to the provisional Danish-funded program to upgrade the government and to Akashi, the organization skills of journalists, frequently introducing complained, human rights and constitutional themes in We have the right to ask all the elected repre- the training. The English-language Phnom sentatives about what they are going to include Penh Post was particularly active in analyzing in the constitution. They should let us know the background of the constitution-drafting openly what their intentions are. The drawing process and reporting on otherwise secret up of the constitution is not a secret thing. All ­negotiations. Soon after the election, the citizens have the right to know about what will paper published an article by Raoul Jennar, be written in the constitution. The people have the right to oppose what they think is inappro- author of the Cambodian Chronicles, detail- priate or should not be in the constitution.59 ing the constitutional decisions the assembly would have to make regarding a republican In the end, however, there was precious little or monarchical system, a unicameral or bi- participation from either NGOs or mem- cameral parliament, the separation of pow- bers of the assembly in the formulation of ers, and similar matters.55 The Phnom Penh the constitution. Post also voiced concern over the secrecy of Given the limited opportunities for par- the constitution-drafting process and echoed ticipation, most human rights organizations ©NGO Copyright claims that certain elements, by such the focused Endowment on popular education about the conof- as human rights provisions, had not been stitution. The Cambodian League for the drafted by August.56 It reported the time- Promotion and Protection of Human Rights tablethe for considerationUnited of the Statesfinal draft by (LICADHO) Institute used cartoons of andPeace presen- the drafting committee and the entire con­ tations by monks to educate Cambodians stituent­ assembly, and revealed that two about human rights and the constitution, and drafts had been sent to Prince Sihanouk57 and assisted other independent and nonpolitical that Prince Ranariddh had disagreed with bodies in efforts to advise the population and the committee’s draft and planned to resur- government on constitutional issues.60 The rect the 1947 monarchical constitution.58 Khmer Institute of Democracy, established by a former aide to Prince Sihanouk with funding from Australian and North Ameri- Impact of Civil Society on the Constitution- can sources, held public seminars, work- Drafting Process shops, and debates about democratic ideals Ponleu Khmer found the draft prepared in and principles.61 secret by the drafting committee contradic- NGOs such as Vigilance and Ponleu tory in that it Khmer gathered the views of citizens in the Framing the State in Times of Transition 221

provinces through public workshops, con- had, after all, elected legitimate representa- stituent meetings with elected members of tives, and real sovereignty was being restored the constituent assembly, and public open to the nation. The idea that public access to houses, creating an open dialogue among the deliberations and the creation of a pub- Cambodians.62 These expressions of public lic record could be invaluable to the people’s attitudes were disseminated by the media sense of their national history had little or and NGOs that organized the events, but no effect on the political class in Cambodia, do not appear to have influenced the drafters despite indigenous NGO support for such of the constitution very much. As the draft- transparency. Public scrutiny was simply not ing process neared completion, word got out a feature of political behavior. about the possible restoration of the monar- The public’s failure to gain access to the chy, and several Khmer prodemocracy orga- drafting sessions and influence the text is nizations opined that the draft constitution only part of the picture, however. The pro- was “dangerous.” They were also concerned cess of reading and hearing about the con- about reports that it might be set aside in stitution, and of learning that something favor of the 1947 version. In general, they so significant to their future was being de- felt that the constitution granted too much cided in secret may well have influenced power to the government.63 the population’s long-term expectations. De- The freedom of action of NGOs and the spite subsequent consolidation of one-party clergy, protected by UNTAC, and the free- domination under Hun Sen, the population dom of expression of the media created a and the opposition Party (SRP) high degree of public expectation that there have been remarkably persistent in calling would be opportunities to influence the for greater transparency and accountability drafting of the constitution. However, with of government. Even the role of Sihanouk, only a few exceptions, the elected members whose ultimate decisions his subjects tend of the constituent assembly took their cues to support, may not have discouraged people from their respective parties rather than from believing that the political leadership their constituents. In the end, the two issues should respond to their aspirations. This is on which NGOs were particularly vocal— much more true for educated activists than © Copyrightstrong human rights provisions by and the no re- Endowmentfor ordinary citizens, however. of turn to the 1947 constitution—were lost The transitional authority partially opened causes. the constitution-making process to popular theOne United way citizen involvement States could have Instituteparticipation, but it of was lessPeace successful in been handled differently would have been for convincing the political parties to establish UNTAC to insist on a public process with detailed records of drafts, amendments, de- verbatim records and public access to delib- bates, and votes. The secrecy of the Cambo- erations. UNTAC had proposed such prac- dian process and its final distortion were not tices, and several sources offered technical­ conducive to public participation or respon- support, including the Inter-Parliamentary sible constitution making. In the end, how- Union (IPU). The problem was that UNTAC ever, the ultimate legitimacy of the constitu- was in complete control of the election but tion arguably depends on the freeness and not of the drafting process. Without a clear fairness of the process that selected the con- mandate, Sihanouk and the parties made a stitution’s drafters and the quality of the final good case for a hands-off approach by UN- text, not the extent to which those entrusted TAC, especially because that was Akashi’s in- with the drafting benefited from popular clination in any case. The Cambodian people consultations. 222 Stephen P. Marks

In other words, as an elected body, the consultation. Such requirements might have constituent assembly embodied a democratic helped transform a closed and opaque pro- process in Cambodia but, once entrusted cess into a more open and democratic one. with the responsibility of drafting the consti- tution, it should have provided transparency, including public access to official records, to Democratic Representation ensure the credibility of the process. Despite In a democratic process, the interests of the this deficiency, three factors seem to have people are advanced by elected representa- made the constitution legitimate in the eyes tives participating in government. The Paris of the Cambodian people: the endorsement Agreements’ emphasis on pluralism and from Sihanouk, the revered national leader; UNTAC’s encouraging both the four fac- the international community’s recognition tions to register as political parties and other that the assembly election was relatively free politically ambitious individuals to form and and fair and the successful transition process; register political parties were clearly open- and the intrinsic merit of the constitution’s ings for democratic representation in the provisions on human rights and the separa- constituent assembly. However, these open- tion of powers. ings could not wipe out the legacy of control From the constituent assembly’s inaugural of the state apparatus by a single party. session on June 14, 1993, to the constitution’s adoption on September 24, 1993, the politi- cal leadership showed no inclination to de- Communist Legacy lay the drafting to allow the public to learn Superficially, the opening of political or participate more. Constitutional literacy space for democratic representation in the projects began well before June, and NGOs, constitution-making process was a remark- the press, and Buddhist monks kept the pub- able success. However, the ultimate impact of lic informed and raised awareness of the is- this opening was severely limited by Cam- sues. A long process of consultations with all bodia’s inability to cast off its communist major elements of the population may have legacy of conflating the party and the state. been useful in other situations, but in Cam- Although officially UNTAC was cooperat- ©bodia, Copyright the political violence in the by runup tothe ing withEndowment “existing administrative structures” of the election, during the voting, and espe- of all factions, throughout the transitional cially before the interim government could period, the CPP maintained the advantage bethe formed United justified finishing States the job fairly of Institutecontrolling the SOC—the of state Peace adminis- quickly—but not doing it in secrecy and tration—and effectively running the govern- without a public record. ment.64 Early on, the DK criticized UNTAC With the benefit of hindsight and knowl- for failing to exercise direct control over for- edge of other constitution-making processes eign affairs, national defense, finance, public that included comprehensive public partici- security, and information as the Paris Agree- pation programs, it would have been pref- ments required65; it stressed that there should erable for the Paris Agreements to set out be “no government” in Cambodia and that the basic structure of the process of citizen the SOC, which it called the Phnom Penh involvement and transparency. Without un- party, should be dismantled and the SNC duly extending the process, the agreements given more power under UNTAC supervi- could have required transcriptions of the de- sion.66 While this position was a pretext to liberations as well as some degree of popular avoid compliance with the cease-fire and Framing the State in Times of Transition 223

cantonment phase of the peace process, the Attempted Reconciliation with the Khmer Rouge DK was correct that UNTAC was allow- From the perspective of national recon- ing the CPP to function as a government ciliation, the evolving power arrangement through the SOC. This situation continued appears to have successfully transformed throughout the electoral process. The only warring factions into political parties. How- reason that the CPP allowed FUNCINPEC ever, the transformation was incomplete, as to share power after the 1993 election is that violent conflict continued. In particular, the it came in second in the elections. As soon as DK withdrew from elections and, although the CPP could reassert complete power, after still technically a member of the SNC, was a few years of coalition government, it did so. not involved in the constitution-making No new political formation could enter the process, despite Sihanouk’s efforts to bring political arena, with the exception of the Sam them in.68 Moreover, UNTAC could not Rainsy Party, an offshoot of FUNCINPEC, prevent the DK and other factions from vio- which constitutes the only real opposition to- lating the cease-fire and continue operations day. The political compromise that the CPP of armed forces. As was forced to make with FUNCINPEC did, explained, however, give the latter bargaining power during the drafting of the constitution. UNTAC’s inability to bring about the peace it had promised made the other components of the mission exponentially harder to achieve. Participation of Political Parties A “neutral political environment” for the elec- tions could not be established; in the absence Of the twenty-two parties that registered of cantonment, the country continued to be rife to present candidates, twenty participated with heavy weaponry, and armed gangs, party in the election.67 However, only three re- gunmen, common criminals and off-duty police all freely committed murders and other acts of ally counted: the CPP, FUNCINPEC, 69 violence. and the BLDP, founded in 1992 by the KPNLF to contest the elections. Of those, There is a link between the failure of the FUNCINPEC and the CPP dominated. military phase and the failure to leverage the FUNCINPEC won fifty-eight seats to the election and constitution drafting to bring © CopyrightCPP’s fifty-one seats; theby BDLP the won ten Endowmentthe DK into the peacebuilding process. of The seats; and the National Liberation Movement DK’s continued war against the newly created of Kampuchea, an offshoot of FUNCIN- Royal Cambodian Armed Forces (RCAF) thePEC, United won one seat. Surprised States by the out- Institutewas clearly a failure ofof the peacePeace process, at- come, the CPP at first called for a revote in tributable to Akashi’s calculated risk that by four provinces and threatened violence if their not confronting the DK, he could preserve demands were not met. Prince Chakrapong, the essential goal of holding the election. He Ranariddh’s half brother but nevertheless a was able to hold the election, but the price CPP politician, left the SOC government, for Cambodians was another six years of where he was deputy prime minister, and ral- military confrontation. lied seven provinces in the east to secede. The constituent assembly convened under this unstable situation and selected Prince Siha- The Timing and Sequencing nouk as head of state, in charge of forming of the Constitution-Making Process an interim government. Sihanouk appointed The timing as established in the Paris Agree- himself as prime minister. ments was politically wise in light of UN 224 Stephen P. Marks

peacekeeping goals. Because the parties had In light of the tendency of warring par- reached a sufficient degree of mutually pain- ties to distrust one another, there can only ful stalemate and concluded that none could be an advantage to defining clear sequenc- take power by military means, by the time of ing in a peace agreement. Any adjustment the Paris Conference, Sihanouk and the po- of the sequencing requires a high degree of litical parties appeared ready to accept what- diplomatic skill, by someone such as a UN ever process made sense to the international mission head, as any party that sees another community. Given Cambodia’s constitu- party gaining advantage will protest furi- tional history, incorporating into the peace ously. The peacemaking phase does not end agreement the formal and substantive re- when the peacebuilding and peacekeeping quirements regarding constitution drafting processes begin. was extremely sensible. Even with the unan- UNTAC assigned high priority to con- ticipated restoration of the monarchy, the vening the constituent assembly rapidly after reassertion of power politics, and domina- the 1993 election. The timing of UNTAC’s tion by one party, the timing of the constitu- mandate was limited to the period from the tion drafting ensured for the Cambodian entry into force of the Paris Agreements people a basis for the eventual consolidation to the approval of the constitution and the of democracy, however slow and uneven that transformation of the constituent assembly process might be. into a legislative assembly and the creation Similar comments can be made about the of a government.70 The election itself was re- sequencing of the political steps set out in the quired to be held within nine months from peace agreements. The constitution drafting the commencement of voter registration.71 had to come after an opportunity for politi- Work on the constitution began soon af- cal self-determination through the election ter the constituent assembly appointed the of the assembly, in which Cambodians resid- drafting committee on June 30, 1993. The ing in the territory, refugees in camps, and committee’s work was essentially completed exiles living abroad participated. It also had by the second week of September 1993, to come before the full restoration of gov- when it released its draft and FUNCINPEC ernmental powers by any political force, and made available its draft based on the 1947 ©therefore Copyright had to precede the formation by of the a text. EndowmentAfter Hun Sen and Prince Ranariddh of government and take place while UNTAC returned from Pyongyang, with Sihanouk’s was asserting its transitional administrative decision to approve the FUNCINPEC draft, powers.the Therefore,United the sequencing States of the the Institute assembly took only five of days Peaceto adopt it, main phases of the transition laid out in the on September 21, 1993. Sihanouk ratified it Paris Agreements—demobilization, creation on September 24, 1993. Akashi needed the of a secure environment, election of a con- process to be completed quickly so that the stituent assembly, adoption of a constitution, UN mission could end by autumn 1993. The transformation of the constituent assembly five permanent Security Council members into the national assembly, and formation of had expressed concern that the mission end a legitimate government—was logical and quickly, as new challenges for peacekeeping necessary from a peacemaking perspective. were arising in El Salvador and Bosnia and However, as noted above, the Paris Agree- donor fatigue was setting in. ments failed to provide for the specific ele- In retrospect, despite the very real time ments and sequencing of the constitution- pressures, it is clear that more time should making process itself, leaving that to the have been allotted for the constitution- constituent assembly. making process. Certainly, more time would Framing the State in Times of Transition 225

have had to be allotted if the process had in- for the United Nations a firm basis for as- cluded more civic education focused specifi- sisting with design or managing the process. cally on constitutional issues, followed by a Nevertheless, the electoral component, phase of popular consultation—particularly headed by highly experienced constitutional in light of the time that has been required for lawyer Reginald Austin, consulted widely constitution making in those countries that with experts in constitution drafting and have appointed a constitutional commission compiled significant amounts of informa- to direct distinct phases of civic education tion on the style and content of constitu- and popular consultation. tions for the Cambodian parties to use. He presented these materials in various settings, including at the SNC meeting described The Role of the International above.74 The electoral component convened Community several working sessions on constitutional The transition was in large part the work of matters with party representatives and a few the international community, in the form of outside experts, but without the participa- the contact group, the regional powers, the tion of either Sihanouk or Akashi. The most permanent members of the Security Council, significant event of this type was the- con the cochairs of the Paris Conference, and the stitutional seminar held from March 29 to UN secretariat. The SNC, especially Prince April 3, 1993. All Cambodian parties and Sihanouk, its president, represented Cambo- many Cambodian NGOs were invited to dian sovereignty. Because the SNC was only participate in discussions centered on pre- the nominal seat of sovereignty, the peace pro- sentations made by UNTAC staff and sev- cess was primarily in the hands of the interna- eral Cambodian and outside experts. These tional community, but the constitution-making efforts all focused exclusively on substantive phase was primarily the work of Cambodian constitutional issues. While helpful in deep- political leaders. However, the United Nations ening participants’ awareness of comparative and specific governments had roles to play in approaches to key issues of governance and both the peace process and the constitution- constitutional structure, the seminar did not making effort. appear to have much influence on the per- © Copyright by the Endowmentsons who actually drafted the text. of UNTAC’s human rights component redi- The United Nations rected its human rights education program theUNTAC’s United role in the overall States transition was Instituteduring the postelection of period Peace toward con- defined in the secretary-general’s report of stitutional literacy, to inform Cambodian February 19, 1992, to the Security Council,72 NGOs and the general public about popular which the council approved on February participation in constitution drafting, draw- 28.73 The report set out detailed guidelines ing upon other Asian examples, and a basic for the seven components of the mission, es- understanding of constitutional concepts. pecially regarding demobilization and cease- Audiovisual materials were prepared and fire, assuring public security, organizing elec- disseminated, discussion groups set up with tions, and promoting and monitoring human NGOs, and a constitutional forum organized, rights. But it did not specify any particular during which three Cambodian activists—a role for UNTAC in the constitution-drafting monk, a representative of women’s organiza- process. This, once again, is regrettable, as it tions, and a head of an indigenous human- offered little or no guidance to Cambodians rights organization—participated in a panel regarding process design and did not secure with three Asian experts who had been ac- 226 Stephen P. Marks

tive with popular organizations during the have allowed the Cambodians themselves drafting of other constitutions in the region. to make key substantive choices. This is true The audience of over one hundred activists particularly given that, as noted in the previ- engaged in an animated discussion, show- ous section, the Cambodians appeared to be ing an intense interest in political participa- open to whatever process the international tion and in strong human rights provisions community might suggest. in the constitution. The Cambodian groups The final assessment of the role of the requested the UN meeting room for closed United Nations in the transition overall must sessions the following day. At the conclu- certainly be positive for having held the elec- sion of a full day’s efforts, they formed Pon- tion and repatriated refugees, even though leu Khmer, the abovementioned coalition of the United Nations can be faulted for having fourteen groups. failed the military phase of the process. As When UNTAC arrived, Cambodians held an exercise in peacemaking, it must certainly an exaggerated expectation that the United be seen as a success. However, while UN ef- Nations would bring peace. They were bound forts enabled the constitution to be drafted, to be let down, and they were. Akashi tended the organization’s direct role in that element to leave the constitution-making process to of the process was negligible. the Cambodians, but Sihanouk’s shifting at- titude undermined the effectiveness of the process and UN ability to contribute posi- Foreign Experts tively to it. On August 31, 1993, Sihanouk Several foreign experts, some sponsored by wrote from that he would agree governments and foundations, sought to as- to be king if the assembly insisted, but four sist the drafting committee of the constit­ days later, he asked not to be considered, say- uent assembly. A French lawyer was sec- ing, “We have already found the ideal for- onded from UNTAC’s civil administration mula: Cambodia is an independent, neutral component—itself headed by a French ad- and non-aligned state, neither a Kingdom ministrative judge—to the French-educated nor a Monarchy. It is simply a Cambodian chair of the drafting committee and given Cambodia.”75 It was in this context that he an office in the Ministry of Justice. Her ©became Copyright furious at the United Nations,by althe- influence Endowment appears to have been negligible,of leging that UNTAC told the BBC that he however. Claude Gille Goure, a law profes- wanted the restoration of monarchy. On Sep- sor from the University of Toulouse, was temberthe 4, 1993,United he wrote to AkashiStates that he more Institute influential; he “had of an important Peace role was breaking off all relations with UNTAC in drafting the version that was the closest and asked Akashi not to make a scheduled to the one that was adopted.”76 Brown and trip to . He subsequently tempered Zasloff describe his role: his furor against UNTAC, but remained Sihanouk, through his son Ranariddh, himself suspicious of perceived UN meddling in the a former professor of law at the University of constitution-drafting process. Aix-en-Provence in , had engaged Goure In hindsight, the Cambodian leadership following the election to prepare a draft con- might have been less sensitive to the issue of stitution. Goure worked in Phnom Penh until UN meddling had UN efforts focused more sometime in July 1993, and left the draft with on process than substance. In this way, the Ranariddh before returning to France. One might assume that the draft conformed to the international community could have been positions of Prince Sihanouk and Ranariddh. perceived as a more neutral and support- According to a source who was closely fol- ive agent in designing a process that would lowing the drafting process in late July 1993, Framing the State in Times of Transition 227

Ranariddh came before the drafting commit- tablished presences in Phnom Penh. Among tee and said, in effect, “Here’s the constitution. their activities was to invite the members of My father has agreed to it and so do I.” It was substantially Goure’s draft. According to this the new constituent assembly to a workshop account, Ranariddh expected that a draft en- they sponsored, at which elected representa- dorsed by Prince Sihanouk and himself would tives from the United States and Bangladesh be immediately accepted. Instead, the chairman advised their guests regarding what works and of the committee calmly thanked Ranariddh what does not work in constitutional drafting and noted that the committee would consider in democratic societies.78 The NDI and IRI it, along with the draft that it had been working hard to develop.77 also offered information on political party training, voter education, and use of media.79 This version of events is credible. The CPP At another seminar for the parties, they dis- clearly expected to control the constitution- tributed the U.S. constitution in Khmer and drafting process and introduce language brought in a U.S. constitutional law professor from the 1989 SOC constitution. However, who spoke about the relevance of U.S. consti- FUNCINPEC’s electoral victory and the tutional principles to Cambodia. high regard everyone, including Hun Sen More useful was the role of two other and Chem Sngoun, had for Sihanouk re- U.S. law professors, Louis Aucoin and Do- sulted in the drafting of one text based on lores Donavan, who visited on behalf of the the 1989 SOC constitution and another Asia Foundation. According to an interview based on the 1947 monarchical constitution, Aucoin gave to Joseph Zasloff in April 1993, rather than the formulation of a new consti- the two professors were welcomed by Chem tution based on Annex 5 and the advice of Sngoun, the chair of the drafting committee, foreign experts. Even though Ranariddh is who gave them a desk near his office in the a law professor, it is unlikely that he could Ministry of Justice. Chem Sngoun “recom- have come up with a complete text without mended to committee members that they assistance. It is also unlikely that Professor consult the professors with questions about Goure relied on the 1947 text without the comparative constitutions.”80 After provid- French government favoring this approach. ing information and suggestions on certain The French government and experts assist- sections of the constitution, “during the © Copyrighting the Ministry of Justice byand FUNCIN the- Endowmentsecond week of August, the two of professors PEC displayed a good deal of political re- were abruptly cut out of the advisory process, alism by acknowledging Sihanouk’s special apparently due to an order from Prince Si- therole andUnited placing themselves States in a position to Institutehanouk that no foreigners of (presumablyPeace other influence both the once and future king and than those from whom he was drawing assis- the leader of the victorious party by support- tance) were to be involved in the constitution- ing a version of the constitution favorable to writing process.”81 This author’s personal the . recollections of Aucoin’s and Donavan’s role The U.S. government was not directly in- was that unlike the French, who wanted to volved, although it did fund expert advice restore the French language and legal system from Americans through the Asia Founda- in the country, they used a healthy compara- tion, the National Democratic Institute for tive law approach, drawing on whatever legal International Affairs (NDI), and the -Inter traditions Cambodia had and the most use- national Republican Institute (IRI), the latter ful elements of other Asian legal systems, as two organizations created under congressional well as U.S. law, to assist in developing a legal mandate through the National Endowment system adapted to the needs of post-conflict for Democracy. Both the NDI and IRI es- Cambodia. 228 Stephen P. Marks

In retrospect, the involvement of foreign the negotiations on Cambodia among the experts in Cambodia raises significant ques- permanent five Security Council members tions as to the role, ethics, and methodology describes this text as follows: that should be exercised by the international Like the constitutional principles prepared for community and experts providing advice. Namibia, these provisions of the Agreement When their efforts strengthen the hand of transcend existing international human rights an already dominant political party, there is instruments. They go beyond recognizing free danger that their work shrinks the political elections as the sole process for choosing a gov- ernment after internal strife, and beyond com- space available to all political forces in soci- mitting the elected regime to guaranteeing the ety and the population at large, rendering the human rights of its people, by identifying the process less democratic. path—labeled “liberal democracy, on the basis of pluralism”—it is to follow. The Agreement thereby establishes the political foundation of The Role of International Law a government able to protect human freedom. Moreover, it incorporates this principle for in- Both the role that international law played in ternal governance in an agreement resolving a the constitution-making process and the role regional conflict, and thus places an interna- that it did not play where it might have been tional obligation on Cambodia to observe it and 83 expected to are of interest in the Cambodian on other signatories to respect it. case. International law provided a foundation for the constitution’s provisions on demo- cratic governance and human rights, and International Law of Human Rights could have done the same—but did not— The second aspect of international law rele- for the issue of accountability for the Khmer vant to the Cambodian constitution-making Rouge’s past crimes. experience of 1993 is the set of international norms of human rights. Including a bill of rights in the constitution stems not only Legal Obligation to Establish Democratic from Annex 5 of the Paris Agreements re- Governance ferred to above, but also from Article 15 (2a) Broad principles of democratic governance, of the Paris Agreements, according to which ©which Copyright began to be considered inby the early the “Cambodia Endowment undertakes to take effective ofmea- 1990s an entitlement under international sures to ensure that the policies and practices law,82 were contained in the mandate to pre- of the past shall never be allowed to return.” parethe for a United constitution in the States Paris Agree- This Institute wording suggests that of the Peacedrafters ex- ments and in Security Council Resolution pected the new constitution to affirm human 745 (1992) of February 28, 1992. According rights as a testimony to the break with the to Article 23 of the Paris Agreements, the past and as an important preventive measure new constitution was required to contain for the future. “basic principles, including those regarding The chapter of the constitution entitled human rights and fundamental freedoms” as The Rights and Obligations of Khmer Citi- set out in Annex 5, entitled Principles for a zens covers twenty articles (Articles 31–50), New Constitution for Cambodia. This text seventeen of which relate to rights and three is drawn from a 1982 proposal of the five- to duties. This chapter constitutes the - dec state contact group that prepared recom- laration of fundamental rights required mendations for Namibia’s transition to inde- by Annex 5 of the Paris Agreements. At a pendence. A member of the U.S. delegation minimum, the declaration had to contain to the Paris Conference on Cambodia and the twelve rights enumerated in Annex 5, Framing the State in Times of Transition 229

namely “the rights to [1] life, [2] personal degree of the international community’s in- liberty, [3] security, [4] freedom of move- volvement in Cambodia’s affairs, one might ment, [5] freedom of religion, [6] assembly have expected the constitution to deal with and [7] association including political par- the issue. After all, the principal explana- ties and trade unions, [8] due process and tion for the reference to human rights in the [9] equality before the law, [10] protection Paris Agreements is universal condemnation from arbitrary deprivation of property or of the atrocities of the Khmer Rouge. Nev- deprivation of private property without just ertheless, the Paris Agreements did not go compensation, and [11] freedom from racial, as far as the peace agreement in El Salvador, ethnic, religious or sexual discrimination. It which explicitly called for prosecutions for will prohibit the [12] retroactive application past abuses.86 The absence of a similar- ref of criminal law.” The text basically meets erence may be explained by the diplomatic these requirements, though by borrowing necessity of keeping China and the DK in from older constitutions, it often protects the process. In this sense, the Cambodian the rights to a lesser degree than do the in- case is an example of how the nature of a ternational texts.84 Clearly, the drafters did constitution-making process and the partici- not choose to draw from the language or pants in it affect the content of the constitu- normative richness of relevant international tion, even for issues on which international instruments. It is a sad commentary on the law provides clear guidance. entire process that most of the rights and du- The human rights provisions of the 1993 ties are expressed in wording similar to that constitution contain no explicit references to of the SOC constitution of 1989. In some genocide,87 the Genocide Convention, the cases, the constitutional and international actions of the DK, or prosecutions for gross standards are both quite general and dif- violations of human rights. There are also no fer only in drafting. On the whole, the new references to such prosecutions in the eight constitution enumerates the same rights and articles on the judicial power.88 One of the duties as the 1989 constitution, with minor provisions in the section on political regime adjustments—and without having taken ad- stipulates that “the Royal Government of vantage of the extensive drafting suggestions Cambodia is committed to . . . implement © Copyrightfrom NGOs and various advisers by nor the given Endowmentthe policy of national reconciliation.” of89 Con - due consideration to the requirements of the ceivably, this article could be invoked to Paris Agreements or international treaties to avoid prosecutions for genocide, but such an thewhich United Cambodia is a party. States Instituteinterpretation would ofcontradict Peace the principle that unless the text expressly stipulates oth- erwise, it should be construed so as not to International Law Relating to Impunity conflict with Cambodia’s international obli- The third dimension of international law rel- gations, including its obligations under the evant to the constitution-making process in Genocide Convention. Therefore, while the Cambodia concerns norms of accountability constitution does not address the issue of for the past. In recent years, numerous coun- accountability or criminal responsibility for tries have faced the need to balance recon- acts of genocide and crimes against human- ciliation and stability with responsibility for ity, it does not cast any doubt on Cambodia’s gross violations of human rights.85 Given obligations under Articles IV, V, and VI of the magnitude of the crimes that the Khmer the Genocide Convention to “punish,” “pro- Rouge committed, the fact that Cambodia is vide effective penalties,” and “try” persons a party to the Genocide Convention, and the charged with genocide. 230 Stephen P. Marks

The prevailing impunity for genocidal Essential Issues of Substance crimes in Cambodia has been denounced 90 Several substantive issues were crucial to the from various quarters and was the object of development of the final constitutional text. intense negotiations over ten years between Without a record of the deliberations of the Royal Government and the United Na- the drafting committee, and given the lack tions, leading the national assembly to adopt of transparency in the ultimate decision- a Law on the Establishment of Extraordinary making process, we can review only in gen- Chambers in the Courts of Cambodia for eral terms the restoration of monarchy, the Prosecution of Crimes Committed Dur- structure of government, and provisions for ing the Period of Democratic Kampuchea, promoting and protecting human rights. which was promulgated in October 2004.91 In June 2007, the Extraordinary Chambers in the Courts of Cambodia (ECCC) held its The Restoration of Monarchy and Structure inaugural session. On July 18, 2007, the co- of Government prosecutors filed introductory submissions Monarchy in Asia (as elsewhere) tends to be with the coinvestigating judges for five un- autocratic, and considering Cambodia’s pre- named individuals. On July 31, 2007, charges vious experience, one might wonder whether were laid against Kaing Guek Eav, otherwise the constitutional provisions on the monar- known as Duch, the former head of Toul chical nature of the government diminish its Sleng, and later in 2007, four other individu- liberal democratic character or the prospects als were arrested and placed in the ECCC’s for implementing constitutionally guaran- 92 custody. In 2008, the ECCC held pretrial teed human rights. During the drafting of proceedings for all five defendants. The pros- the Paris Agreements and the transitional ecution of Duch began in March 2009. The period, there was no hint that the task of es- entire process is expected to end in early tablishing a “liberal democracy, on the basis 2011. Among the ECCC’s major challenges of pluralism” would entail the restoration of are the independence and impartiality of the the king. During the SNC session described judiciary and other organs of the court, es- above, when Prince Sihanouk outlined his ©pecially Copyright from government pressure by and inthe- vision Endowment of the constitution, he noted that of the terference; compliance with due process and name of the country as set out in the con- fair-trial standards; transparency and public stitution could be neither the Kingdom of accessthe to documents;United and resources States to ensure Cambodia Institute (“which would ofnot please Peace certain the capacity and effectiveness of the court’s parties”) nor the (“which 93 operations. One observer explained that would not please my son [Prince Rana- “questions of corruption have already slowed riddh, head of the royalist FUNCINPEC] the proceedings, as have restrictions on in- and, in truth, would not please me either”). vestigations and procedures that other courts He suggested that the country simply be would have never have accepted,” concluding called Cambodia.96 He did see a special role that it “is dubious that the tribunal can really for himself, but not as king; he felt that the set the historical record straight.”94 NGOs, “president” should be someone who is above especially the Documentation Center of parties and brings the nation together. Using Cambodia (DC-Cam), have been provid- the example of François Mitterrand (and, ing detailed documentation and analysis and oddly, Danielle Mitterrand), he said that reaching out to young Cambodians to know their affiliation with the Socialist Party -ex this dark period of their nation’s history.95 emplified a partisan type of presidency that Framing the State in Times of Transition 231

would not work in Cambodia.97 He said that accorded a special place in the constitution the Cambodian president could be a man or to allow him to continue to play his unique a woman, but there is little doubt that the role. Restoring him to the throne was not the person above parties whom he had in mind expected way of maintaining his supreme was none other than himself. He may have authority, but it was consistent with what all been deliberately misleading the members of perceived as a political necessity. It was also the SNC, the senior staff of UNTAC, and the result of the “idealization of the pre-1970 the diplomatic corps in the room, intending past the defect of which had been erased by all along that the process lead to restoration subsequent atrocities.”98 of the Kingdom of Cambodia with his re- Despite the short-term imperative to ac- turn to the throne. It may also have been his cord Sihanouk a special role, the question view at the time that the surest road to power remains whether the provisions of the 1993 for him was to be elected under a constitu- constitution relating to the status, powers, tion with a strong presidential regime. Al- and duties of the king are compatible with ternatively, the relative victory of his son’s the functioning of a liberal democracy that FUNCINPEC party may have opened the safeguards human rights. Akashi and his staff way for a restoration of the monarchy that were well aware that constitutional monarchy Sihanouk had not envisaged before the con- need not be incompatible with liberal de- stituent assembly began meeting. mocracy and respect for human rights, con- Whatever may have been the expecta- sidering the examples of the United King- tions of the palace or of FUNCINPEC, the dom, Denmark, the Netherlands, Spain, and United Nations did not seriously consider Sweden. The essential characteristic of those that the Kingdom of Cambodia would be constitutional systems is that power is legally the framework for the liberal democracy it and effectively exercised by duly elected rep- was mandated to help establish. From a his- resentatives of the people who are account- torical and sociological perspective, however, able to their constituents and respectful of one might doubt whether any other form the rule of law and separation of powers. On of government than monarchy could have its face, the 1993 constitution of Cambo- emerged in Cambodia from a process of po- dia provides that “all powers belong to the © Copyrightlitical self-determination, inby which the oppos- Endowmentpeople. The people exercise theseof powers ing factions needed to compromise and the through the National Assembly, the Royal general population obviously supported the Government and the Judiciary.”99 The same theroyal United family and monarchical States tradition. In Institutearticle stipulates that of the threePeace branches of traditional Khmer society, the king occupies government shall be separate. Democracy is an exalted position, and Sihanouk’s person- reconciled with monarchy in the first article ality fit that traditional model. Popular sup- of the constitution, which reads, “Cambodia port, for FUNCINPEC, reflecting venera- is a kingdom with a King who shall rule ac- tion for Sihanouk, proved greater than that cording to the Constitution and to the prin- for the CPP, despite the latter’s control over ciples of liberal democracy and pluralism.” If the propaganda and security apparatus. one accepts that a constitutional monarchy Politically, influential foreign governments can establish a liberal democracy—which and the United Nations had always recog- seems acceptable—then this provision con- nized that Sihanouk was the only person tains the essential guarantees of it by sub- capable of holding the SNC and the peace ordinating the king to the constitution and process together, however capricious he the principles of liberal democracy and might be. No one doubted that he would be pluralism. Article 1 also constitutes formal 232 Stephen P. Marks

compliance with a clear requirement of An- platforms and the choice of party candidates. nex 5.100 The formal limitations on the king Second, the constitution does not provide for are reinforced by Article 7, according to which other levels of democratic participation apart “the king of Cambodia shall reign but shall from electing members of the assembly, such not govern.”101 The members of the constit-­ as directly voting candidates into offices in uent assembly attached particular impor- the local and provincial governments. Rather tance to this limitation because they added than belonging to the people, real powers that it “absolutely shall not be amended.”102 belong to the king and the politicians who Nevertheless, the king is given consid- control the royal government, consisting of erable authority and a few real powers. He the Council of Ministers, normally headed “shall assume the august role of arbitrator to by one prime minister assisted by two deputy ensure the faithful execution of public pow- prime ministers.114 The prime minister is ap- ers”103, and he appoints the prime minister.104 pointed by the king from the representatives He also appoints, transfers, and removes high of the winning party in the assembly, on the officials, ambassadors, and judges, the last recommendation of the president and with group on the advice of the Supreme Council the assent of the two vice presidents of the of the Magistracy.105 He can declare war,106 assembly.115 The executive continues to be proclaim a national emergency,107 and sign the dominant political force, with the king and ratify international treaties.108 He also having considerably more than ceremonial must sign royal acts and decrees to promul- functions. These are the structures of - gov gate the constitution and laws.109 Finally, the ernment that are supposed to establish de- king is the supreme commander of the Royal mocracy—that is, empower the people and Khmer Armed Forces110 and president of the their representatives to decide on behalf of Supreme Council of National Defense.111 the people. Despite constitutional incanta- Vesting these powers in the ailing father of tions of the supremacy of the people and the , who spent most of his king’s frequent reference to it, in practice, the time in Beijing and Pyongyang and was re- parliament appears weak. vered by most of the population, may have been appropriate for the prestige of the office ©and insignificantCopyright in practice. However, by full theuse Constitutional Endowment Provisions for Promoting of of them by his successor could easily jeopar- and Protecting Human Rights dize the democratic institutions provided for In large part, the constitution’s liberal char- elsewhere.the UnitedThe king cannot appointStates his suc- acter Institute is a function of the of bill of Peace rights and cessor112; the Royal Council of the Throne— related enforcement procedures set out in it. consisting of the president of the assembly, Incorporating human rights provisions was a the prime minister, two head monks, and the critical element of compliance with the Paris first and second vice presidents of - theas Agreements in the constitution-making pro- sembly—must elect a new king from among cess, although it is uncertain whether and the royal family members.113 Sihanouk abdi- to what extent the drafters focused on this cated in 2004, and his eldest son, Norodom aspect of the constitution. In addition to Sihamoni, was named by the nine-member affirming human rights consistent with the throne council to become the next king. Universal Declaration of Human Rights Democracy is doubly fragile under Cam- and other relevant instruments, Annex 5 re- bodia’s political system. First, the impover- quired the constituent assembly to provide ished population has too little education and that “aggrieved individuals will be entitled to experience with democracy to influence party have the courts adjudicate and enforce these Framing the State in Times of Transition 233

rights”116; as the annex states, “An indepen- the Human Rights Council since February dent judiciary will be established, empow- 1993,122 through the SRSGs.123 ered to enforce the rights provided under the The principal mechanism for promoting constitution.”117 Formal declarations of rights and protecting human rights that a constitu- are of little value unless the law and political tion can appropriately establish is an indepen- culture permit an effective remedy against dent judiciary, which the Paris Agreements abuses, as required by Article 8 of the Uni- stress as the privileged means to enforce hu- versal Declaration and Article 2(3)(a) of the man rights. Due to a paucity of people with International Covenant on Civil and Politi- any legal training at all, however, it has not cal Rights, to which Cambodia is a party.118 yet been possible to establish a fully trained An effective remedy assumes that the rule of judiciary. A court system is meaningless if law and trained judicial and administrative judges and prosecutors lack even a minimal officials are in place. Cambodia has neither. degree of training and independence. Before Nevertheless, the constitution does stipulate the constitution was drafted, the head of that the investigation unit of the Human Rights Component of UNTAC wrote that under Khmer citizens shall have the right to de- new constitutional provisions on indepen- nounce, make complaints or file claims against any breach of the law by State and social organs dence of the judiciary, “it would be neces- or by members of such organs committed dur- sary to abolish the judiciary as it exists now, 124 ing the course of their duties. The settlement of completely.” He also found that for Cam- complaints and claims shall reside under the bodian judges with whom he had discussed competence of the courts.119 the matter, “the whole concept of indepen- 125 Regarding the existence of effective rem- dence of the judiciary was alien to them.” Constitutionally requiring the indepen- edies under the new constitution, Justice dence of the judiciary was a necessary but Michael Kirby, the first special representative insufficient step to allow the justice system of the secretary-general for human rights in to function as an effective means of enforc- Cambodia, did not hesitate to conclude that ing constitutional rights and protections. the above-quoted provision notwithstanding, While the constitutional affirmation of an “no effective criminal or civil remedies exist © Copyright by the Endowmentindependent judiciary and provision of for a in law for the prosecution of persons who Supreme Council of the Magistracy are wel- engage in violations of rights recognized in 120 come, it is illusory to think that the constitu- thethe Constitution.”United The States constitution could Institutetion will produce, in theof near Peace term, anything not declare such prerequisites of justice into approaching effective means of adjudicating existence. It could, however, establish in law and enforcing rights through the courts, as an array of organs and procedures that would the Paris Agreements require. make it difficult if not impossible for the new government to deny an effective remedy to aggrieved individuals without disregarding Conclusion the constitution. However, the constituent Adopting Cambodia’s 1993 constitution was assembly only provided the most superficial the defining event in implementing the Paris guarantees of such remedies. It was, there- Agreements’ commitment to establish a “lib- fore, a wise precaution to provide, in Article eral democracy on the basis of pluralism.” The 17 of the Paris Agreements, for the ongoing United Nations deployed over twenty thou- UN supervision,121 which has been exercised sand civilian and military personnel and spent by the Commission on Human Rights and $2 billion to assist Cambodia through a tran- 234 Stephen P. Marks

sitional period, the end of which was defined participation requires a vibrant civil society as the adoption of the constitution and the benefiting from freedom of expression and establishment of the first government pursu- association. Political parties, trade unions, ant to it. Without the constitution, UNTAC religious organizations, public interest, and would have failed in an essential aspect of similar groups must function free of undue its mission, although its role in the actual government control. Democratic empower- drafting process was minor. The Cambodian ment requires that democratic laws, policies, operation made constitutional reform an and institutions be in place, including elec- integral part of the comprehensive political toral laws and commissions, genuine and pe- settlement, with the United Nations keeping riodic elections, an independent judiciary and the process on course. The ultimate question bar, a professional police separate from the addressed in this chapter is whether and to military, and accountability and transparency what extent the process of constitution draft- in public service. Working to put these ele- ing contributed to national reconciliation ments in place during a transition holds the and establishment of the foundations for a potential for long-term social transformation stable and peaceful society. The constitution- as the population, made aware of its rights to making process can best be assessed as an ele- democratic governance, constantly seeks to ment of intervention from above rather than occupy and expand the political space avail- intervention from below.126 able to it. Political and military arrangements among The constitution-drafting process falls in fighting factions are the most visible elements between interventions from above and below. of UN peacemaking, peacekeeping, and post- It is an essential component of elite-level ar- conflict peacebuilding, and require high-level rangements, standing on the fragile ground intervention from above by the international of a formal agreement by previously warring community. Such intervention and the re- parties, who would have preferred military sultant political arrangements are accepted victory but have had to settle for a political by those who seek political power only as role under the constitution. But it can also be long as they have no choice. Once they feel a feature of democratic empowerment, both empowered enough, they will exclude the in- as a process and foundation for future expan- ©ternational Copyright community and dismantle by those the sion. Endowment The massive participation in the ofCam- aspects of the political arrangements that do bodian election of the constituent assembly not suit them. In Cambodia, this has meant in 1993 clearly contributed to democratic the concentration United of power in theStates CPP and in empowerment. Institute People’s expectations of Peace of what the person of Hun Sen. Support for civil so- a peaceful Cambodia could be like were al- ciety, human rights, democratic participation, tered, probably irrevocably. To the extent and community-based development efforts that the population is informed and feels its tends to be a less visible form of intervention views are reflected in the constitution-drafting from below. Intervention from below involves phase, democratic participation is enhanced. a partnership among human rights and de- However, in Cambodia, that phase was to a velopment components of the international large extent a manifestation of intervention community, interacting with elements of the from above because the drafting process was population in a process of societal transfor- not transparent and civil society was given mation through democratic empowerment, few opportunities to be heard. At the same enhancing citizens’ capacity to participate time, the demands of the Paris Agreements effectively in society and government. Such and the governments that sought to influ- Framing the State in Times of Transition 235

ence the process, as well as the minimal ex- Qadir, this democratization at the top is a pectations of the parties represented on the “game élites play to manage the granting of drafting committee, resulted in the consti- very carefully selected concessions. It is a tution’s adoption of many essential features cosmetic exercise and does not install the of a liberal democracy. Such a legal basis for fundamentals of democratization.”129 human rights and democratic governance The question that arises, however— contributes to democratic empowerment. and that will remain unanswered here—is In other words, national dialogue and whether a more democratic and transpar- consolidation of peace receive a necessary ent constitution-making process might have but temporary boost from the military and fostered a more genuinely democratic result. political aspects of intervention from above, The question leads to speculation as to what but their longer-term prospects depend on might have happened had the demands for democratic empowerment, to which consti- participation by the vibrant civil society that tution drafting may contribute. In Cambo- took shape in the course of the process actu- dia, the drafting process belonged more to ally been met. If so, perhaps the process itself the power struggle among the political fac- would have been a capacity-building exer- tions than it did to the democratic empow- cise, strengthening the role of civil society erment function of UNTAC’s peacebuilding and the population at large in the political mandate. That is why it is necessary to moni- destiny of the country. As it stands, the new tor carefully how the subsequent societal constitution is democratic to the extent that development and application of the consti- the people’s interests were genuinely reflected tution have filled the empowerment gap cre- by their elected representatives in the con- ated by the politicization of the constitution- stituent assembly. That a coalition of human drafting process. rights and development NGOs attempted It should be clear that formally including to pressure the assembly during the drafting in the constitution the key language of the phase is a promising sign of the potential for Paris Agreement and its Annex 5 regard- deeper democratization, as is the continued ing liberal democracy and human rights did effort of these activists to see in the constitu- not change Cambodia’s power structure. It tion a source of protection of their human © Copyrightis evident that “the provisions by of thethe for- Endowmentrights, which they could not have of expected mal constitution concerning the selection of under the previous regime. members of the ruling group and the right The liberal character of Cambodia’s new theto individual United liberties are States not the ultimate Instituteconstitution is a function of ofPeace the clarity and determinants of the distribution of effective thoroughness with which rights and proce- power in the political system, much less in dures for their implementation are set out. the political society as a whole.”127 Cambo- We have seen that the drafters did little more dia is an example of Nelson Kasfir’s sharp that graft the monarchical provisions of the observation that “no matter how careful the 1947 constitution onto a liberalized version constitutional drafting process reestablishing of the 1989 constitution, without incorporat- democratic rule, and no matter how bitter the ing international standards except for a gen- memory of past experience, the dependent eral—and potentially significant—reference political economies and swollen states char- to them. Nevertheless, the continuing appli- acteristic of the Third World raise profound cability of those portions of the transitional structural challenges to the success of demo- provisions that have not been replaced and cratic constitutions.”128 According to Shahid the legal authority for interpreting the consti- 236 Stephen P. Marks

tutional declaration of rights by reference to political and administrative life despite a international standards expand considerably ­constitution purporting to establish a liberal the scope of the enumerated rights. The con- democracy based on pluralism. As one mem- stitutionally established procedures for effec- ber of the constituent assembly remarked tive remedies are particularly weak, however. when the constitution was adopted, the pub- The constitution’s text is disappointing in lic and near-unanimous voting on limited this regard, but gives a legal basis for a broad matters in the assembly was “just like under program of reform. The Cambodia Office of communism.”130 Nevertheless, the constitu- the High Commissioner for Human Rights, tion has provided the legal basis for power and the constant vigilance of the successive sharing between the previously warring special representatives for human rights in FUNCINPEC (and KPLNF) and the CPP; Cambodia (Michael Kirby, Thomas Ham- it has also allowed the Sam Rainsy Party to marberg, Peter Leuprecht, Yash Ghai, and emerge as genuine opposition, frequently Surya Subedi) as well as key bilateral donors, harassed by the government but persevering. all contribute to consolidating adherence to The constitutional text makes it the policy constitutional rights and freedoms. of the royal government of Cambodia to ad- Thus, Cambodia’s constitution established vocate “a national reconciliation policy in de- a weak democratic structure with limited fense of national unity.”131 At the ceremony liberalization. This result must not be judged following the constitution’s promulgation, too harshly, however, considering the dev- Akashi was perhaps a bit too optimistic in astation of the country and the intensity of declaring that “Cambodia has proved to the the conflict from which it has yet to emerge world that an insoluble conflict can be set- entirely. The end of the Cold War removed tled and that apparently irreconcilable points Cambodia’s significance as a strategic zone of of view can be reconciled.”132 The king’s pref- conflict, by which the United States sought erence for accommodation with the DK to to contain and push back Soviet influence achieve reconciliation seemed at first to hold through the latter’s Vietnamese proxy. That promise, especially when, soon after the con- strategic interest was seen to be so great that stitution’s adoption, , nomi- the United States bombed Cambodia during nal head of the DK, came to Phnom Penh to ©the VietnamCopyright War and supported theby Khmer the pay homageEndowment to King Sihanouk and declare of Rouge diplomatically after the Vietnamese his group’s support for the new constitu- invasion. Without these strategic interests, tion133 even as defections multiplied among stabilitythe and United democracy in Cambodia States are de- the Institute ranks of the Khmer Rouge of armed Peace forces sirable but not vital: to the West, Cambodia (NADK).134 The prospects for reconciliation is now another poor country that deserves aid as conceived by the king changed, however, but is unlikely to turn against Western inter- with the 1994 assembly vote to outlaw the ests. Under these circumstances, the concern DK, with the support of the first prime min- of powerful nations during transition was to ister, Prince Ranariddh, who had originally complete the mission on time and within supported his father’s policy of accommo- budget, even if the constitution—its prin- dation, and the DK’s establishment of a so- cipal product—was not as good as it might called Provisional Government of National have been. Union and National Salvation. Eventually, The CPP today, as heir to a communist- the NADK defections and ’s death type party and state structure but without ended the threat to reconciliation that the the Marxist ideology, continues to dominate DK represented, and Khieu Samphan sits to- Framing the State in Times of Transition 237

day (May 2009) in the docket of the ECCC. ditions, consolidation of democracy appears The constitution-making process did not difficult in Cambodia, but not hopeless. achieve reconciliation among the four Cam- The current CPP, FUNCINPEC, and bodian parties to the Paris Agreements, but SRP leaderships and the relatively weak king, it was a critical first step toward that end. (who replaced the ailing The long-term viability of a constitution and absentee Sihanouk in October 2004), do depends not so much on how it is drafted as not possess the requisite qualities to breathe on conditions that allow for the consolida- life from the top into the potentially demo- tion of democracy, including overcoming the cratic provisions of the constitution. But lack of historical experience with democracy, prospects may be brighter for the long-term sustaining a growing economy, avoiding po- advance toward democratization from be- litical violence, and ensuring separation of low, through the empowerment of people to powers and a professional and independent participate in government. Democratization civil service and judiciary. Cambodia has had requires unfettered development of civil soci- virtually no previous experience with demo- ety, through genuine freedom of association cratic governance, although there is no doubt and expression, political space being given to about the enthusiasm with which Cambodi- diverse segments of the community, respect ans participated in the elections and aspire for privacy, and development of independent to enjoy human rights and honest govern- media; periodic elections, especially at the ment. Cambodia’s poverty135 is slowly being local level with voter education; meaningful offset by substantial aid,136 some interna- recourse and effective redress through judi- tional investment,137 and modest economic cial and administrative remedies, open to or- growth.138 Regarding a peaceful transition to dinary people, both citizens and noncitizens; democracy, political and ethnic violence con- and access to official information, members tinued during the 1993, 1998, 2002, and 2003 of parliament, and public officials. At least elections, but all were relatively free and fair limited popular involvement in politics first under the circumstances. Commune elec- appeared during the May 1993 elections and tions were held in April 2007 and National the constitutional-drafting process, and con- Assembly elections in July 2008, but with less tinued during the five more recent elections. © Copyrightviolence than the 2002 and by2003 elections.the EndowmentDemocratization has thus had a of spectacu - The Cambodian People’s Party emerged vic- lar beginning, but will take generations to torious, with the Sam Rainsy Party (SRP) become embedded in Cambodia’s political theincreasing United its representation States in the assem- Instituteculture. of Peace bly as the main opposition party. The armed Cambodia has emerged from chaos and conflict with the DK did not end until 1998. destruction with many unsolved problems. But since transition began, the scale of po- In the final analysis, the 1993 constitution litical violence has not threatened democracy is not much better than previous communist, fatally. Progress in maintaining the separa- monarchical, or republican versions on which tion of powers and independence of the civil it is largely based. Power is beginning to be service and judiciary is painfully slow but exercised more broadly through the politi- the constant vigilance and denunciation of cal opposition and civil society, and certain backsliding by the SRSGs, local and inter- checks are being placed on the dominant national NGOs, and the political opposition leadership. Cambodia has not yet entirely have sustained pressure on the regime. Thus, emerged from civil strife, and its democratic judging by the presence of these four con- foundations are fragile. But the 1993 consti- 238 Stephen P. Marks

tution, for all its defects, has cemented that Special Representative of the Secretary-General foundation. for . UNTAC — United Nations Transitional Authority in Cambodia. Acronyms BLDP — Buddhist Liberal Democratic Party. Notes CGDK — the Coalition Government of Demo- cratic Kampuchea. 1. Agreements on a Comprehensive Politi- cal Settlement of the Cambodian Conflict, signed CPP — the Cambodian People’s Party, the pro- in Paris on October 23, 1991, at the final meeting Vietnam faction. Previously named the PRPK. of the Paris Conference on Cambodia. The com- Controlled the PRK, ­renamed SOC in 1989. prehensive settlement comprises four documents: DK — the Party of Democratic Kampuchea, also the Final Act of the Paris Conference; the Agree- called PDK. Popularly known as Khmer Rouge. ment on a Comprehensive Political Settlement of FUNCINPEC — National United Front for an the Cambodian Conflict, with five annexes (Annex Independent, Neutral, Peaceful, and Cooperative 5 contains constitutional principles); the Agree- Cambodia, the royalist faction headed by Prince ment Concerning the Sovereignty, Independence, . Territorial Integrity and Inviolability, Neutrality IRI — International Republican Institute, U.S.- and National Unity of Cambodia; and the Decla- based democratization assistance organization. ration on the Rehabilitation and Reconstruction of KPLNF — Khmer People’s National Liberation Cambodia. Reprinted in 31 I.L.M. 174 (1992). This Front, also known as the BLDP — Buddhist compilation will be referred to below in the plural as Liberal Democratic Party. the Paris Agreements; the singular Paris Agreement will refer to the second of the four documents. KR — Khmer Rouge, name given to the DK (also called PDK) by Sihanouk and generally used by 2. Among the books written about the Cam- the media. bodian transition are Grant Curtis, Cambodia Re- born? The Transition to Democracy and Development LICADHO — Cambodian League for the Promo- (Washington, DC: Press, and tion and Protection of Human Rights. Geneva: The United Nations Research Institute for MOLINAKA — Mouvement de Liberation Na- Social Development, 1998); M.H. Lao, The Unfin- tionale du Kampuchea (National Liberation ished Settlement of the Cambodia Conflict (Phnom Movement of Kampuchea). Penh: Khmer Institute of Democracy, 1994); Wil- NDI — National Democratic Institute for Inter- liam Shawcross, Cambodia’s New Deal (Washing- ©national Copyright Affairs, U.S.-based democratization by theas- ton, DC:Endowment Carnegie Endowment for International of sistance organization. Peace, 1994); Janet E. Heininger, Peacekeeping in PICC — the Paris International Conference on Transition: The United Nations in Cambodia (New theCambodia. United StatesYork: Institute The Twentieth-Century of Fund Peace Press, 1994); PRK — People’s Republic of Kampuchea, con- Steve R. Heder and Judy Ledgerwood, eds., Pro- trolled by the PRPK (later renamed the CPP). paganda, Politics, and Violence in Cambodia: Demo- PRPK — People’s Revolutionary Party of Kampu- cratic Transition under United Nations Peace-Keeping chea, previous name of the CPP. (Armonk, NY: M.E. Sharpe, 1996); Henry Kamm, Cambodia: Report from a Stricken Land (New York: SNC — Supreme National Council, the in- Arcade Publishing, 1998); MacAlister Brown and terim representative body created in the Paris Joseph J. Zasloff, Cambodia Confounds the Peace- Agreements. makers: 1979–1998 (Ithaca, NY: Cornell University SOC — State of Cambodia, name of PRK since Press, 1998); David W. Roberts, Political Transition 1989, controlled by the CPP. in Cambodia: Power, Elitism, and Democracy (New SRP — Sam Rainsy Party. York: St. Martin’s Press, 2001). SRSG — Special Representative of the Secretary- 3. Among the numerous books about this General of the United Nations (during the Cam- period, see Elizabeth Becker, When the War Was bodian transition, held this posi- Over: The Voices of Cambodia’s Revolution and Its tion). Since the UNTAC period, it refers to the People (New York: Simon and Schuster, 1986); Mi- Framing the State in Times of Transition 239

chael Vickery, Cambodia 1975–1982 (Cambridge, 9. See Maurice Gaillard, Démocratie Cam- MA: South End Press, 1984); David Chandler and bodgienne. La Constitution du 24 septembre 1993 Ben Kiernan, eds., Revolution and Its Aftermath in (Paris: L’Harmattan, 1994); Siphana Sok and De- Kampuchea: Eight Essays, Yale University Southeast nora Sarin, Legal System of Cambodia (Phnom Penh: Asia Studies, Monograph Series no. 25, 1983; Ben Cambodian Legal Resources Development Center, Kiernan, ed., Genocide and Democracy in Cambodia: 1998); Koy Neam, Introduction to the Cambodian The Khmer Rouge, the United Nations, and - theIn Judicial Process (Washington, DC: The Asia Foun- ternational Community, Yale University Southeast dation, 1998); Stephen P. Marks, “The New Cam- Asia Studies, Monograph Series no. 41, 1993; Karl bodian Constitution: From Civil War to a Fragile D. Jackson, ed., Cambodia 1975–1978: Rendezvous Democracy,” Columbia Human Rights Law Review, with Death (Princeton, NJ: Princeton University vol. 26, no. 1 (Fall 1994), pp. 45–110. Press, 1989). 10. George Coedès, The Indianized States of 4. These four parties were the Cambodian Southeast Asia (Honolulu: University of Hawaii People’s Party (CPP), previously known as the Peo- Press, 1986), English edition. ple’s Revolutionary Party of Kampuchea (PRPK), 11. David Chandler, A , which headed the People’s Republic of Kampu- 2nd ed. (Chiang Mai, : Silkworm Books, chea (PRK), since 1989 called State of Cambodia 1993), p. 48. See also Mahesh Kumar Sharan, Po- (SOC); the National United Front for an Indepen- litical History of Ancient Cambodia, from 1st Cent. dent, Neutral, Peaceful, and Cooperative Cambo- A.D. to 15th Cent. A.D. (New Delhi: Vishwavidya dia (FUNCINPEC); the Khmer People’s National Publishers, 1986); , Kampuchea: Liberation Front (KPLNF), also known as the Bud- Politics, Economics, and Society (Boulder, CO: Lynne dhist Liberal Democratic Party (BLDP) since May Rienner, 1986). 1992; and the Party of Democratic Kampuchea (PDK) or Khmer Rouge (KR). It is important to 12. Chandler, History, p. 107. Chandler also keep in mind that the distinction between SOC and notes that the “Cambodian king, at the pinnacle the functioning government structure and CPP as a of society, was remote from his subjects. Scholars political party was more of a fiction than a reality, as have argued that this remoteness was expected of the party controlled the state. an Asian king; he was to rule by his largely invisible example, just as the sun shone, and he was to act as 5. The eighteen other signatories are Austra- the custodian of a fund of merit and power—viewed lia, , Canada, China, France, , Indone- perhaps as an interlocking, expendable commod­ sia, , , Malaysia, the Philippines, Singa- ity—that he had accumulated in previous existences pore, Thailand, the USSR, the , the en route to the throne” (112). United States, Vietnam, and Yugoslavia. 6. On the background of the agreements, 13. François Ponchaud, “Social Change in the © Copyrightsee Steven R. Ratner, “The Cambodiaby the Settlement EndowmentVortex of Revolution,” in Rendezvous withof Death , Agreements,” American Journal of International Law, p. 176, quoting Alain Forest, Le Cambodge et la vol. 87, no. 1, pp. 2–8. See also Steven R. Ratner, colonisation française: Histoire d’une colonisation sans the“The United United Nations in States Cambodia: A Model for Instituteheurts (1897–1920) (Paris: of L’Harmattan, Peace 1980). Resolution of Internal Conflicts?” in Enforcing Re- 14. Chandler, History, p. 105. See also Marie- straint: Collective Intervention in Internal Conflicts, Alexandrine Martin, “La paysannerie Khmère ed. Lori Damrosch (New York: Council on Foreign et le processus démocratique,” in Les Cambod- Relations Press, 1993), p. 241. giens face à eux-mêmes, Dossier pour un débat, Fon- 7. Technically, this outcome was a condition dation pour le progrès de l’homme, no. 4, 1993, precedent for the termination of the transition pe- pp. 127–142, quoted in Gaillard, Démocratie Cam- riod of UN authority. Article 1 of the Paris Agree- bodgienne, p. 25. ment provides that the transitional period shall 15. Chandler, History, p. 111. “terminate when the constituent assembly elected 16. The practice of justice is included in the through free and fair elections, organized and certi- account of customs in Angkor in the last days of the fied by the United Nations, has approved the con- Khmer Empire, written around 1312 by a Chinese stitution and transformed itself into a legislative as- embassy official who had spent a year in Angkor. In sembly, and thereafter a new government has been determining rights and obligations in civil matters, created.” “points of dispute, however trifling, are taken to the 8. See note 2. ruler.” When two men have a dispute over a matter, 240 Stephen P. Marks

“each of the contestants is forced to be seated in one 32. Paris Agreements, annex 1, section D. of the [twelve little stone towers in front of the pal- 33. Formed by armed groups on the Thai- ace] with his relatives standing guard over him. They Cambodian border in August 1979, the Mouve- remain imprisoned two, three, or four days. When ment de Liberation Nationale du Kampuchea allowed to emerge, one of them will be found to be (National Liberation Movement of Kampuchea, or suffering some illness—ulcers, or catarrh, or malig- MOLINAKA) was supported mainly by French- nant fever. The other man will be in perfect health. based Cambodian exiles. The party under the Thus is right or wrong determined by what is called MOLINAKA name that won a seat in the 1993 ‘celestial judgement.’ Thus is shown supernatural elections was formed in 1992 from members of strength of the God of this country.” In criminal FUNCINPEC and was dissolved in 1998. matters, an accused thief who denies the charge is 34. UN Security Council Resolution 840 forced to plunge his hand in boiling oil. “If he is (1993). truly guilty, the hand is cooked to shreds; if not, skin and bones are unharmed. Such is the amazing way 35. John C. Brown, “Khmer Democracy: of these barbarians.” Other criminal punishments Where’s the Participation?” Phnom Penh Post, included, for serious crimes, placing the criminal in August 27–September 9, 1993, p. 8. a ditch and “earth and stones are thrown back and 36. Osborne, Sihanouk, pp. 261–62. heaped high, and all is over. . . . Lesser crimes are 37. Isabelle Hourcade, “M. Akashi ‘profon‘profon-- dealt with by cutting off feet or hands, or by ampu- dément satisfait’ de la mission de l’ONU au Cam- tation of the nose.” Chou Ta-Kuan (Zhou Daguan), bodge,” Agence France Presse, September 26, 1993 The Customs of Cambodia, 2nd ed. (Bangkok: The (LEXIS-NEXIS, September 27, 1993). Siam Society, 1992), p. 33. 38. Francis Curta, “La France salue l’adoption 17. Gaillard, Démocratie Cambodgienne, p. 25. de la nouvelle constitution,” Agence France Presse, 18. Constitution of September 23, 1993, art. September 21, 1993 (LEXIS-NEXIS, September 1, para. 2. 21, 1993). See also “EC Welcomes New ConstiConsti-- 19. Lao, The Unfinished Settlement, pp. 169–97. tution in Cambodia,” European Report, European Information Service, October 6, 1993, section I, 20. Ibid., pp. 203–04. Institutions and Policy Coordinationn no. 1891 21. See note 1. (LEXIS-NEXIS, October 6, 1993). 22. Paris Agreement, annex 5, para. 4. 39. Associated Press, AP Online, VO155, 23. Nayan Chanda, quoted by Ratner, “The September 24, 1993. Cambodia Settlement Agreements,” p. 27, note 163. 40. UN Security Council Resolution 880 24. For example, Milton Osborne reports (1993). that “time and again Sihanouk had made clear his 41. Brown and Zasloff, Cambodia Confounds ©distrust Copyright of radical politics within Cambodia by and histhe the Peacemakers,Endowment pp. 132–33. of readiness to sanction the repressive measures used 42. Paris Agreement, art. 15(2)(a). See also by his security services.” Milton Osborne, Sihanouk: the Agreement Concerning the Sovereignty, In- Prince of Light, Prince of Darkness (Honolulu: Uni- the United Statesdependence, Institute Territorial Integrity of and Peace Inviolability, versity of Hawaii Press, 1994), p. 121. Neutrality and National Unity of Cambodia, art. 25. Lao Mong Hay affirms, “At the PICC the 3(2). Khmer Rouge had fought hard to remove that word 43. Report of the Secretary-General, UN Docu- from all conference documents, and had succeeded.” ment S/23613, para. 12. This document is the prin- Lao, The Unfinished Settlement, p. 199. cipal source, after the text of the Paris Agreements, 26. Stephen P. Marks, “Forgetting ‘The Poli- of UNTAC’s mandate. cies and Practices of the Past’: Impunity in Cambo- 44. Stephen P. Marks, “Human Rights dia,” Fletcher Forum, vol. 8, no. 2 (1994), pp. 25–26, Education in UN Peace-Building: From Theory 28–30, 36–38. to Practice,” in Human Rights Education for the 27. Text on file with the author. Twenty-First Century, ed. George J. Andreopoulos 28. Paris Agreement, art. 3. and Richard Pierre Claude (Philadelphia: Univer- 29. Paris Agreement, art. 6. sity of Pennsylvania Press, 1997), pp. 36–39. 30. Personal recollection of the author. 45. UN Document S/23613, para. 13. 31. Personal recollection of the author. 46. UN Document S/23613, para. 13. Framing the State in Times of Transition 241

47. Marks, “Human Rights Education in UN 63. “NGOs Express Concern over Draft Peace-Building,” p. 47. Constitution,” Phnom Penh Post, August 27– 48. Report of the Special Representative of the September 9, 1993, p. 1. Secretary-General, Mr. Michael Kirby (), on 64. See note 4. the Situation of Human Rights in Cambodia, Submit- 65. Paris Agreements, annex 1, section B, ted in Accordance with Commission Resolution 1993/6, para. 1, and S/23613, February 19, 1992, para. 94. UN Doc. E/CN.4/1994/73, February 24, 1994, 66. Letter dated June 27, 1992, from Mr. para. 165, p. 42. Khieu Samphan, transmitting proposal of the Party 49. “Women’s Rights Movement Starts,” of Democratic Kampuchea (PDK) on coopera- Cambodia Times, March 15–21, 1993, p. 11. tion between UNTAC and the Supreme National Council, in United Nations, The United Nations and 50. David Hawk, “The Photographic Record,” Cambodia, 1991–1994, document 38, pp. 198–99; in Rendezvous with Death, p. 212. and proposal dated July 12, 1992, of the Party of 51. Ibid., p. 212. Democratic Kampuchea on the implementation of 52. Eva Mysliwiec, Punishing the Poor: The In- phase II of the cease-fire and the regroupment and ternational Isolation of Kampuchea (Oxford: Oxfam, cantonment of the forces of the PDK, United Na- 1988), p. 47. tions, The United Nations and Cambodia, document 53. 1993 Constitution, art 41. 40, pp. 200–01. 54. Report of the Special Representative of the 67. A description of nine of the twenty par- Secretary-General, Mr. Michael Kirby, para. 159, ties was published in Phnom Penh on the eve of p. 41. the election. “Party Profiles,” Phnom Penh Post, May 21–June 3, 1993, p. 10. 55. “Monarchy or Republic?” Phnom Penh 68. During his brief attempt to form a coali- Post, June 18–July 1, 1993, p. 8. tion government, Sihanouk had invited the DK to 56. “The U.N. Says It Is Not Worried at This join in “national reconciliation and national union” Point. Charter: Out of Sight, Out of Mind,” Phnom and offered Khieu Samphan and , the nom- Penh Post, August 13–26, 1993, p. 1. inal leaders of the DK, “official recognition.” Brown 57. “Sihanouk Backs Royalist Charter,” and Zasloff, Cambodia Confounds the Peacemakers. Phnom Penh Post, September 10–23, 1993, p. 1. 69. Human Rights Watch, The Lost Agenda: 58. John C. Brown, “NGOs Express Concern Human Rights and UN Field Operations (New York: over Draft Constitution,” Phnom Penh Post, August Human Rights Watch, 1993), p. 46. The reference 27–September 9, 1993, p. 1. to a “neutral political environment” is from the re- quirement of Article 12 of the Paris Agreement that 59. Brown, “Khmer Democracy: Where’s the © Copyright by the Endowmentsuch an environment exist for the elections. of Participation?” at p. 7. In Akashi’s reply, he sup- ported their “democratic right to lobby the mem- 70. Paris Agreement, art. 1. thebers ofUnited the Constituent Assembly States and the political Institute71. Paris Agreement, of annex Peace 1, sec. D, para. 5. parties to which they belong, on any matters of con- 72. Report of the Secretary-General on Cam- cern relating to the Constitution,” but noted that bodia, containing his proposed implementation plan the process was the responsibility and prerogative of for UNTAC, S/23613 of February 19, 1992. the assembly. 73. S/RES/745 (1992) of February 28, 1992. 60. “Comics, Monks Spread Human Rights 74. See note 32 and accompanying text. Message,” Phnom Penh Post, September 25, 1992, 75. Shawcross, Cambodia’s New Deal, p. 33. p. 8. 76. Brown and Zasloff, Cambodia Confounds 61. “Former Royal Aide Opens Think Tank,” the Peacemakers, p. 195. Phnom Penh Post, November 20–December 3, 77. Ibid., pp. 195–96. 1992. 78. “Assemblymen in Workshop,” Phnom 62. “Taking It to the People,” Phnom Penh Penh Post, July 2–15, 1993, p. 5. Post, September 10–23, 1993, p. 7. “What Do You 79. Later in 1993, NDI and IRI brought ex- Think of the Constitution?” Phnom Penh Post, Sep- perts from Bangladesh, Thailand, the Philippines, tember 24–October 7, 1993, p. 6. and the United States to share experiences on law- 242 Stephen P. Marks

making, policy development, public accountability, “the bottom line is that the peace process is the one parliamentary procedures, and the role of political promising way of bringing security and justice to parties. “Parliamentary Training for MPs,” Phnom the Cambodian people. Its successful completion Penh Post, Oct. 8–21, 1993, p. 2. cannot be held back over the issue of including 80. Brown and Zasloff, Cambodia Confounds or not including the word ‘genocide.’ The Khmer the Peacemakers, p. 195. Rouge would be the only beneficiary if discord over 81. Ibid., p. 195. this issue blocks moving forward to conclude a po- litical settlement.” 102nd Congress, Subcommittee 82. See Gregory H. Fox and Brad R. Roth, on Asian and Pacific Affairs of the Committee on eds., Democratic Governance and International Law Foreign Affairs, House of Representatives, Review (Cambridge: Cambridge University Press, 2000); of Proposed Economic and Security Assistance Requests Thomas M. Franck, “The Emerging Right to Dem- ocratic Governance,” American Journal of Interna- for Asia and the Pacific, March 6, 7, 22, and April 10, tional Law, vol. 86 (1992), pp. 46–91. 17, 1991, p. 391 (1992). 83. Ratner, “The Cambodia Settlement 88. Constitution of September 21, 1993, arts. Agreements,” pp. 27–28. Footnotes omitted. 109–16. 84. See Stephen P. Marks, “The New Cam- 89. Constitution of September 21, 1993, art. bodian Constitution: From Civil War to a Fragile 52. Democracy,” Columbia Human Rights Law Review, 90. See Marks, “Forgetting ‘The Policies and vol. 26, no. 1 (Fall 1994), pp. 74–76. Practices of the Past,’” pp. 37–38; Stephen P. Marks, 85. Among the growing literature on this “Elusive Justice for the Victims of the Khmer topic, see Diane Orentlicher, “Settling Accounts: Rouge,” Journal of International Affairs, vol. 52, no. 2 The Duty to Prosecute Human Rights Violations of (Spring 1999), pp. 691–718. The 1994 law outlawing a Prior Regime,” Yale Law Journal, vol. 100 (1991), the DK refers to “crimes of murder, rape, robbery of p. 2537; Martha Minow, Between Vengeance and private property, destruction of public and private Forgiveness: Facing History after Genocide and Mass property,” as well as “acts of secession” and “incite- Violence (Boston: Beacon Press, 1998); Geoffrey ment of the population to take up arms against the Robertson, Crimes against Humanity. The Struggle state authority,” but does not refer to international for Global Justice (New York: The New Press, 1999); crimes of genocide or crimes against humanity. The “Seeking International Justice: The Role of Institu- problem has been regularly raised by the special tions,” Journal of International Affairs, vol. 52, no. 2 representatives of the secretary-general for human (Spring 1999). rights in Cambodia. See Situation of Human Rights 86. The peace agreement of January 16, 1992, in Cambodia. Report of the Special Representative of provides as follows: “5. End to Impunity. The Parties the Secretary-General for Human Rights in Cambodia, ©recognize Copyright the need to clarify and put anby end to anythe Peter EndowmentLeuprecht, UN Doc. E/CN.4/2005/116, of De- indication of impunity on the part of officers of the cember 20, 2004, para. 36; Report of the Special Repre- armed forces, particularly in cases where respect for sentative of the Secretary-General for Human Rights in humanthe rights United is jeopardized. To that States end, the Par- Cambodia, Institute Yash Ghai, UN Doc. of E/CN.4/2006/110, Peace ties refer this issue to the Commission on the Truth January 24, 2006, para. 26. for consideration and resolution. All of this shall be 91. Law on the Establishment of Extraor- without prejudice to the principle, which the Parties dinary Chambers in the Courts of Cambodia for also recognize, that acts of this nature, regardless of the Prosecution of Crimes Committed During the the sector to which their perpetrators belong, must Period of Democratic Kampuchea with amend- be the object of exemplary action by the law courts ments as promulgated on October 27, 2004 (NS/ so that the punishment prescribed by law is meted RKM/1004/006). out to those found responsible.” 92. These defendants are: Khieu Samphan, 87. The termgenocide was deliberately avoided Nuon Chea, Ieng Sary, and Ieng Thirith. Official to keep the DK in the peace process but was clearly information is provided on the Cambodian govern- understood by the references to “policies and prac- ment’s Web site for the ECCC, available at http:// tices of the past.” In his testimony before the House www.eccc.gov.kh/english/default.aspx (accessed Foreign Affairs Subcommittee on Asian and Pacific May 21, 2009). The Open Society Justice Initiative Affairs, Assistant Secretary of State Richard H. maintains an ongoing monitoring of progress, pri- Solomon stated, in the view of the administration, orities, and challenges at the ECCC, with monthly Framing the State in Times of Transition 243

updates available at http://www.justiceinitiative. 111. Constitution, art. 24. org/db/resource2?res_id=103899./. 112. Constitution, art. 10. 93. The Open Society Justice Initiative,Prog - 113. Constitution, art. 123. ress and Challenges at the Extraordinary Chambers 114. Constitution, art. 99. in the Courts of Cambodia (New York: Open Soci- 115. Constitution, art. 100. ety Institute, 2007). See also Open Society Justice Initiative, The Extraordinary Chambers (New York: 116. Paris Agreement, annex 5, para. 2. Open Society Institute, 2006); Open Society Justice 117. Paris Agreement, annex 5, para. 5. Initiative, Recent Developments at the Extraordinary 118. Cambodia acceded to the International Chambers in the Courts of Cambodia: October 2008 Covenant on Civil and Political Rights on August Update (New York: Open Society Institute, 2008), 26, 1992, as one of the human rights treaties ratified and monthly updates cited supra note 93. by the SNC during the administration of UNTAC. 94. Elizabeth Becker, “When justice is de- 119. Constitution of September 21, 1993, layed,” International Herald Tribune, March 13, art. 39. 2009. 120. Report of the Special Representative of 95. DC-Cam’s Web site is at http://www. the Secretary-General, Mr. Michael Kirby, para. 137, dccam.org/. p. 36. Louis Aucoin has informed the author that 96. Personal recollections of the author. the drafters intended to adopt the German model 97. Personal recollections of the author. of judicial review in Article 39, allowing the court to refer any constitutional challenge to the constitu- 98. Gaillard, Démocratie Cambodgienne, p. 25. tional court. Communication of January 24, 2002. 99. Constitution, art. 51. 121. “After the end of the transitional pe- 100. Annex 5 of the Paris Agreements re- riod, the United Nations Commission on Human quires that the words “liberal democracy and plural- Rights should continue to monitor closely the hu- ism” appear in the constitution. In addition to the man rights situation in Cambodia, including, if provision of Article 1 noted above, Article 51 of the necessary, by the appointment of a special Rappor- constitution satisfies this requirement by providing teur who would report his findings annually to the that “The Kingdom of Cambodia adopts a policy of Commission and to the General Assembly.” Liberal Democracy and Pluralism.” 122. Commission on Human Rights Resolu- 101. The second sentence of this article reads tion 1993/6, adopted on February 19, 1993. “The king shall be the Head of State for life.” Si- 123. Twenty-seven reports had been issued hanouk’s propensity for reigning rather than ruling by the SRSGs between February 1994 and Feb- has been identified as a reason for his failures in the ruary 2008. See http://cambodia.ohchr.org/EN/ 1950s. Michael Leifer wrote that Sihanouk’s record © Copyright by the Endowmentreport_srsg.htm. of “suggests a greater facility for reigning than for rul- ing. He is more at home with the pomp and circum- 124. J. Basil Fernando, The Inability to Pros- thestances United of government than withStates its good practice. Instituteecute: Courts and Human ofRights inPeace Cambodia and Sri His neglect of the latter when in power is part of Lanka (Hong Kong: Future Asia Link, 1993), p. 9. the tragedy of modern Cambodia.” Quoted by Os- 125. Fernando, The Inability to Prosecute, p. 10. borne, Sihanouk, p. 268. 126. This distinction was suggested to the au- 102. Constitution, art. 17. thor by Professor Richard Falk. 103. Constitution, art. 9. 127. Gene Sharp, Social Power and Political 104. Constitution, art. 19. Freedom (Boston: Porter Sargent Publishers, 1980), p. 322. 105. Constitution, art. 21. 128. Nelson Kasfir, “Popular Sovereignty and 106. Constitution, art. 24. The consent of the Popular Participation: Mixed Constitutional De- parliament is required before he can declare war. mocracy in the Third World,”Third World Quarterly, 107. Constitution, art. 22. vol. 13, no. 4 (1992), p. 595. 108. Constitution, art. 26. Treaties must first 129. Shahid Qadir, Christopher Clapham, be adopted by the national assembly. and Barry Gills, “Sustainable Democracy: Formal- 109. Constitution, art. 28. ism vs. Substance,” Third World Quarterly, vol. 14, 110. Constitution, art. 23. no. 3 (1993), p. 416. 244 Stephen P. Marks

130. Osborne, Sihanouk, p. 8. compared to 2003 ($508 million, or 12 percent 131. Constitution of September 21, 1993, of GDP) and 2004 ($478 million, or 9.8 percent art. 52. of GDP). UNDP, Human Development Report 132. Quoted by Christian Chaise in “Le 2007/08, p. 292; UNDP, Human Development Re- prince Sihanouk promulgue la Constitution ‘la plus port 2006, p. 345; and UNDP, Human Development démocratique qui soit,’����������������������������” ���������������������������Agence France Presse, Sep- Report 2005, p. 282. tember 24, 1993 (LEXIS-NEXIS, September 24, 137. Net foreign direct investment was 6.1 1993) (this author’s translation from the French). percent of GDP in 2005 (up from 2.7 percent of 133. Sheila McNulty, “Khmer Rouge ‘for GDP in 2004, 2.1 percent in 2003, and 3.3 per- King and Country,’” The Independent, October 2, cent in 2001). UNDP, Human Development Report 1993, p. 13. 2007/08, p. 292, UNDP, Human Development Re- port 2006, p. 345, UNDP, Human Development Re- 134. Jean-Claude Pomonti, “Cambodge: Les port 2005, p. 282, and UNDP, Human Development Khmer Rouge connaissent de nombreuses défec- Report 2003, p. 293. tions,” Le Monde, September 20, 1993 (LEXIS- NEXIS, September 21, 1993). 138. The Economic Institute of Cambodia (EIC), which is supported by the World Bank, cal- 135. Cambodia ranks 131 out of 177 in culated Cambodia’s 2008 economic growth rate at UNDP’s and 85 out 5.2 percent in 2008, down from a growth rate of of 108 developing countries on the Human Poverty 10.2 percent in 2007. The global economic crisis Index. UNDP, Human Development Report 2007/08, is expected to bring Cambodia’s economic growth pp. 231 and 240. rate down to about 2 percent in 2009. Economic 136. Cambodia received $537.8 million in Institute of Cambodia, Cambodia Economic Watch— foreign aid in 2005, which is 8.7 percent of its April 2009 (Phnom Penh, 2009), p. vii. GDP. These figures show an increase in aid received

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