Presentation by His Excellency Ieng Mouly, Senior Minister in charge of Special Mission, Chair of the National Aids Authority on the Making of the Cambodian Constitution at the 10th Law Talk , October 11, 2013

Dr. Dennis Schrey, Representative of the Konrad Adenauer Foundation to ,

Ladies and Gentlemen,

Today, I enjoy the special privilege to be invited to deliver a key address on “The Making of the Cambodian constitution.”In fact, following the formation of the new Royal Government, we have a raft of works to perform in . Anyway, I am pleased to take part in the law talk with you today to commemorate the 20th anniversary of our constitution, the supreme law of Cambodia that guarantees the citizens’ rights and fundamental freedom and sets the modalities of government based on liberal multiparty democracy.

Moreover, I also realize that my contribution to the lively debate 20 years ago for the adoption of the Constitution should also be shared. Another good reason for my pleasure to attend the debate at this time is that it is organized by the Konrad Adenauer Foundation, with which I used to be a partner in the 1980s relating to aid provided by this foundation to the religious and educational sectors in refugee camps along the Cambodian-Thai border.

Inception of the 1993 Constitution

Cambodia used to have already had at least five Constitutions:

1. The Constitution of 1947 of the first Kingdom of Cambodia;

2. The Constitution of 1972 of the Republic;

3. The Constitution of 1976 of ;

4. The Constitution of 1981 of the People’s Republic of Kampuchea,1 and

5. The Constitution of 1989 of the State of Cambodia.

-The Constitution of 1947 was an achievement of politicians of the then Democratic Party led by Prince Sisowath Yutevong. At that time, Cambodia was under the French protectorate, which gave some rights to the Cambodian citizens following its return to control Cambodia in the wake

1The People’s Republic of Kampuchea was renamed State of Cambodia in 1989. of World War II. In that epoch, only adult male Cambodian citizens had the voting right in a country that adopted the constitutional monarchic regime, with the King as Head of State. At the time of the first Kingdom of Cambodia, all the powers, including the legislative power, executive power, and judicial power, emanated completely from the King, not from the people.

-Following the military coup of March 18, 1970, Cambodia became a republic that proclaimed the new Constitution in 1972. This Constitution regulated the rule of the country based on the western-style liberal multiparty democracy. Nevertheless, because the country was in the flames of war, the Cambodian people had not acquired full rights and freedom as stipulated in the Constitution. Conversely, the republican regime became a militaristic regime that was plagued by corruption.

-In 1975, the toppled the regime, and in 1976, the Khmer Rouge clique adopted a new Constitution of 1976 and renamed Cambodia as Democratic Kampuchea. Under this regime, all the powers were totally in the hands of the Communist Party of Kampuchea, under the exclusive leadership of the so-called “Angka” (Organization). The Constitution was just a smokescreen, while apparently there was no separation of legislative, executive, and judicial powers in the least. As for the rights and freedom as well as human dignity, they were trampled upon or abolished completely.

-From 1979 to 1993, the People’s Republic of Kampuchea, renamed the State of Cambodia in 1989, continued to rule the country. Before 1993, due to war, Cambodia had not yet acquired liberal multiparty democracy. However, the liberation of the Cambodian citizen from the massacre by the clique on January 7, 1979 could be regarded as the resurrection of the Cambodian people and nation.

Nonetheless, owing to the presence of the Vietnamese troops in Cambodia, war was still going on until the international community and the Cambodian parties involved--1. the State of Cambodia; 2. the FUNCINPEC [National United Front for an Independent, Neutral, Peaceful, and Cooperative Cambodia] Party led by Samdech Sihanouk, the late former King father; 3. the Khmer People's National Liberation Front (KPNLF), and 4. the Democratic Kampuchea or the Khmer Rouge--reached a war-ending agreement called the 1991 Paris Peace Accords (Agreement on a Comprehensive Political Settlement of the Cambodia Conflict).

This peace agreement was signed by the representatives of 18 countries and the four Cambodian parties, joining as the Supreme National Council of Cambodia (SNC) representing Cambodia, in the presence of the UN Secretary General in Paris on October 23, 1991. The objective of this agreement was to restore and maintain peace in Cambodia in order to promote national reconciliation and ensure the exercise of right to self-determination of the Cambodian people through free and fair elections. Another main objective of this agreement was to verify the withdrawal of foreign troops, making sure that they were not anymore present in Cambodia and forestall the return of the Pol Pot genocidal regime by way of the respect for human rights and adherence to liberal multiparty democracy.

Article 12 of the agreement required Cambodia to elect a constituent assembly, with the duty to draft and adopt the new Constitution, before it became the legislative assembly, which would set up a legitimate government of Cambodia. Besides, article 23 of the agreement also defined Cambodia’s basic constitutional principle on human rights, fundamental freedoms, and neutral status. The principles of this new Constitution were also specified in detail in Annex 5 of the Paris Peace Accords, which required that the adoption of the Constitution, to be valid, should be endorsed by the 2/3 majority of votes cast by all the Constituent Assembly members. As for Annex 3, it determined the number of members of the Constituent Assembly at 120 and a nation- wide basis election with a system of proportional representation on the basis of lists of candidates put forward by political parties. The Constituent Assembly had three months to draft and adopt the new Constitution.

Election in 1993

The 1993 election was organized by the United Nations called UNTAC [UN Transitional Authority in Cambodia] from May 23 to 28, 1993. Among the 4,764,439 registered voters, 4,276,192, or 89.56 percent of electors,2 cast their ballots. The results were that the FUNCINPEC Party secured 58 seats, the Cambodian People's Party 51 seats, the Buddhist Liberal Democratic Party 10 seats, and the Party 1 seat.

Constituent Assembly

The Constituent Assembly, in its inaugural session held on June 14, 1993, declared the recognition of Samdech , the then Chairman of the Supreme National Council, as Cambodia’s legitimate Head of State since 18 March 1970, without interruption.

It should be recalled that prior to the May 1993 election, Samdech Norodom Sihanouk used to voice his view of wanting a presidential election in which he would stand as a candidate. What he wanted was the life presidency. However, the Paris Peace Accords did not specify the presidential election, but only the election of the Constituent Assembly.

On June 30, 1993, the Constituent Assembly held its first session to set up a permanent constitution-drafting commission led by the Constituent Assembly President or by the Vice President in the absence of the President. A dignitary from the Cambodian People's Party, H. E. Chem Snguon, was appointed Vice President of the commission, while another dignitary from the FUNCINPEC Party, H. E. Tao Seng Hour, Rapporteur. Aside from the President and Vice President, the Constituent Assembly also had five members from the FUNCINPEC Party, four from the Cambodian People's Party, and one from the Buddhist Liberal Democratic Party [BLDP] as well as alternate members and experts from the three political parties. As for the United Nations (UNTAC), it provided its specialists as advisers to the constitution-drafting commission in order to draft the Constitution in line with principles stated in the Paris Accords.

Draft Constitution

It should be recalled that the Cambodian parties in the peace talks had prepared their own key points for the Constitution. In addition, the tripartite resistance coalition (FUNCINPEC,

2Statistics of the National Election Committee (NEC).

KPNLF and Democratic Kampuchea or Khmer Rouge) constantly received advice from Samdech Norodom Sihanouk, while he was the President of Democratic Kampuchea longing to see Cambodia’s Constitution endowed with the form and significance as the present French Fifth Republic’s. At the first session in Paris in 1989, the three parties of the Coalition Government of Democratic Kampuchea (CGDK) seemed to be in agreement with the former King Father’s aspiration. What was awaiting the Prince’s decision was whether the presidential term was seven or five years, for at the time, he mentioned that the term of seven years seemed lengthy.

In addition, the constitution-drafting commission made use the idea as a basis in the preparation of the draft constitution, only refraining from using the name republic. It solely used the words State of Kampuchea and Head of State to replace the word President. Therefore, until early September 1993, the majority of the Constituent Assembly members had never heard of the plan to bring back the monarchy at all.

However, following their audience with Samdech Norodom Sihanouk in , , the three winning parties’ leaders (FUNCINPEC, CPP, and BLDP) agreed to accept the constitutional monarchic regime again. Perhaps, I was the last politician consulted about this issue, for in that era, I was among a tiny group of opponents failing to join the Provisional National Government of Cambodia under the leadership of two co-prime ministers: one co-prime minister from the FUNCINPEC Party was Sdech Krom H’luong (at that time, he had not yet been promoted to Samdech Krom Preah) and one from the Cambodian People's Party H. E. (at that time he had not yet been conferred with the title Samdech), which was joined by some members of the Buddhist Liberal Democratic Party. This Provisional National Government secured the confidence of the Constituent Assembly on July 1, 1993. Therefore, the accord of the three parties in the Provisional National Government was a factor promoting the reacceptance of the constitutional monarchic regime. The formation of the National Privisional Government prior to the adoption and proclamation of the new Constitution was not specified in the Paris Peace Accords. However, it reflected the efforts exerted by Cambodian political leaders, under the leadership of Samdech Norodom Sihanouk in the valuable national reconciliation.

Debate in Constituent Assembly to Adopt New Constitution

At its second plenary session on September 15, 1993, the Constituent Assembly began debating the draft constitution that the constitution-drafting commission had already agreed upon. As I have mentioned above, due to the three political parties in the Provisional National Government had already agreed with the draft constitution, the debate did not encounter any major problems. Nevertheless, the minority group, including myself, outside the Provisional National Government, presented views and raised questions with a view to ameliorating the draft constitution, making it more acceptable.

In general, the Constituent Assembly members from the FUNCINPEC Party inclined to see the Constitution have the form like the first Kingdom’s Constitution by demanding that the motto: Nation, Religion, and King replace the motto: Nation, Religion, and Sovereignty specified in the draft article and that the article on national congress be included. The two key points the minority group succeeded to include in the Constitution were: 1) to allow all citizens, including Buddhist monks and military personnel, to vote; 2) to allow only elected Member of National Assembly to be nominated as Prime Minister. What the minority group failed to achieve was to change the 2/3 majority of vote to confer confidence on the Royal Government due to most of the Constituent Assembly members arguing that the 2/3 majority formula was specified in the Paris Accords. Actually, the 2/3 majority formula was required just for the adoption of the Constitution.

Adoption of 1993 Constitution

Following the six days of debate, from September 15 to 21, 1993, the Constituent Assembly cast secret ballots on September 21, 1993 to adopt the Constitution with 113 votes in favor, five against, and two abstentions. In that epoch, due to my being among the minority group and my protests and views asking for improvements, one might evaluate that I was certainly among the five opposing votes. Today, I wish to unveil this mystery that, even though I was a challenging leader at that time, I did not vote against the Constitution of 1993 in any case. Up to today, I have still been unaware about to whom the five opposing votes and two abstentions belonged at that time.

Conclusion

The 1993 Constitution is the supreme law of the land. This Constitution has reflected the will of self-determination of the Cambodian citizens, longing for a regime of government based on the liberal multiparty democracy. The Constitution contains a great many details on the citizens’ rights and fundamental freedoms with reference to the principles of the Constitution specified in the Paris Peace Accords. In general, the provisions of the 1993 Constitution have responded to the objective of the peace accord, with the intent of adhering to the liberal multiparty democracy and respect for human rights that are ways to prevent the return of the genocide regime. It is very true that building democracy requires the culture of democracy, which needs lengthy time and a raft of factors, such as laws, law enforcement, respect for democratic institutions, support for democracy, and good understanding of democracy as well as the country’s good political, economic, and social environments.

During the last 20 years of its existence, the 1993 Constitution has been amended many times that includes the establishment of the Senate as well as additional constitutional laws to allow the state institutions to function normally, or to operate smoothly in case of political crisis. For the last 20 years, we can now conclude that not everything is perfect. But regularly organized elections, whether with direct or indirect suffrages that took place in peace and without violence, are undeniable successes for the Cambodian people.

However, in the near future, Cambodian law makers shall reconsider the following points of the constitution:

 Whether it is appropriate to mention the size of the map in the Constitution as it may become a weakness for demarcation or delimitation negotiations with neighboring countries.  Not allowing female members of the royal family to present candidacy for Kingship or Queenship may contradict with gender equality

 National Congress seems to have difficulty to organize as in the first Kingdom, where it was purely an institution of a one party system. Under the rule of Samdech Sihanouk in the 1960s, national congress was organized by the Reastr Niyum, a political movement of then the Prince. The National Congress cannot overstep the legislative body of the country.

All points I have raised here are of my own views, views of a private person, not reflecting formally or informally those of the Royal Government of Cambodia.

Thank you for your kind attention.