The Immortal Clauses: Safeguards for a Liberal Democratic Order in Cambodia?
A note on this piece. This was written in February 2019 — several years ago, in a different political moment — and is republished here unchanged, as an archival record of earlier work. It introduced the term “immortal clause” for Article 155 of the Cambodian Constitution, a framing later cited by Dr Yaniv Roznai — the leading scholar on unconstitutional constitutional amendments — in “Constitutional Amendability and Unamendability in South-East Asia.”
Introduction
A lot of controversy and debate has erupted in the public sphere since the results of the 2018 general elections led to an absolute victory of the ruling Cambodian People’s Party (CPP), which attained total control over the National Assembly by winning 125 out of 125 seats in the lower house of the legislature. The results have been widely excoriated by international organizations and foreign governments, who had also been critical of the decision by the Supreme Court to dissolve the principal opposition, the Cambodia National Rescue Party (CNRP) in November 2017, several months prior to the elections. The Royal Government maintains that the Supreme Court acted in a manner that is in accordance with the provisions of the constitution, to prevent threats to the sovereignty of the nation and to preserve social order in the country.
As a consequence, the ruling party possesses the special majority it needs in the National Assembly to pass amendments to the Constitution. Naturally, this has caused enormous trepidation in certain quarters, which have not only asserted that the 2018 elections were illegitimate, but also claimed that the real intent of the ruling elite is something more sinister, that is, they wish to alter the governing charter in such a way that would:
- compromise the institution of monarchy, thereby giving themselves total power to take over the affairs of the country; and
- permit the construction of a Chinese naval base within the territory of Cambodia.
At the same time, the intelligence community in the United States has also claimed the following in a recently released 2019 Worldwide Threat Assessment report:
“Cambodia’s slide toward autocracy, which culminated in the Cambodian People’s Party’s retention of power and complete dominance of the national legislature, opens the way for a constitutional amendment that could lead to a Chinese military presence in the country”.
The ruling party has categorically denied these allegations, claiming that any such actions would be flatly unconstitutional. Their rebuttal is certainly correct in the context that any such actions would be violative of the existing framework of the Constitution. However, it becomes equally imperative to explore the question as to whether the Constitution may be amended in such a manner as the conspiracists have theorized? In this post, we shall briefly explore the process of constitutional amendment — the extent of the powers conferred upon the legislature, and the limitations placed thereupon.
The Constitution of the Kingdom of Cambodia came into force on 24 September 1993. The Constitution was adopted by the Constituent Assembly formed as a result of democratic elections organized by the United Nations Transitional Authority of Cambodia (UNTAC) following the 1991 Paris Peace Agreements. It was promulgated by former King Norodom Sihanouk.
Brief Background
After two decades of political instability and tumultuous civil war that ravaged the country, Cambodia was declared a constitutional monarchy as a result of the passage of the 1993 Constitution by the Constituent Assembly following the 1991 Paris Peace Agreements. This was made possible by the presence of United Nations Transitional Authority of Cambodia (UNTAC) which was responsible for organizing general elections in the country. The charter document passed as a result of this exercise enshrined individual rights and liberties, and a liberal democratic order. Much like other constitutions, the document prescribes the manner in which it may be revised or amended. In a span of twenty-six years, the Constitution has been amended as many as nine (9) times for varied reasons.
On Constitutional Rigidity and Revolutions
An oft-discussed subject among scholars of constitutional law is the concept of “constitutional rigidity”. A constitution’s degree of rigidity is what determines the relative ease, or conversely, the difficulty with which the charter document may be revised or amended. Internationally, constitutions differ greatly with regard to the manner of their amendability. Some are more rigid in the sense that they require higher bars to be crossed in order to satisfy the requirements for amendability (e.g. by requiring supermajorities, or requiring constituent assemblies as a precondition), while others are regarded as ‘flexible’ as they do not pose much of a challenge for the legislature (e.g. in some countries, constitutional amendments may be passed with absolute majority). Yet some other countries, such as Cambodia, have put in place a “selective rigidity” mechanism that offers greater protection for specific parts that form the core of the constitutional identity. In case of Cambodia, as I shall elaborate further below, these specific parts have been delineated as its “liberal multi-party democracy system” and “constitutional monarchy regime”. Contra, the Constitution also allows for relatively lesser degree of protection for parts that are seen as non-fundamental. In this sense, allowing a certain amount of flexibility is necessitated by the need for ensuring legal continuity and preserving political stability, as also to avoid a situation in which any faction is drawn to undertake revolutionary means to overturn the existing political order.
In the current constitution, Articles 152 to 155 constituting Chapter XVI new (two) refer to “the effect, the revision and the amendment of the Constitution.” We shall discuss these provisions one by one.
Constitutional Supremacy
Article 152 new (two) [former Article 150 new]
The present Constitution is the supreme law of the Kingdom of Cambodia.
All the laws and decisions of all the state institutions must be absolutely in conformity with the Constitution.
The provision above establishes the supremacy of the Constitution and requires that all state institutions such as the legislature, the executive, the judiciary, the Constitutional Council and even the monarchy, maintain absolute conformity with the provisions of the Constitution. The laws enacted by the legislature, and the decisions, including orders and acts, of the other bodies must not contravene the charter document.
Special Majority for Amendment
Article 153 new (two) (former Article 151 new)
The initiative of the revision or the amendment of the Constitution belongs to the King, to the Prime Minister and to the President of the National Assembly on the proposal from one-fourth of all the National Assembly’s Members.
The revision or the amendment of the Constitution must be carried out by a constitutional law adopted by the National Assembly at the two-third majority of all its Members.
The King and the Prime Minister are empowered by the provision above to introduce an initiative for the revision or amendment of the Constitution. Similarly, the President of the National Assembly can also take initiative, however he may only do so upon the proposal by one-fourth of the Members of the National Assembly.
Further, Article 153 requires that an amendment to the Constitution may only be carried out through the passage of a ‘constitutional law’ (ច្បាប់ធម្មនុញ្ញមួយ) passed by the National Assembly with two-thirds majority of all the members of the National Assembly. This means that in an assembly with 125 members, the support of at least 84 members is necessary to cross the threshold for an initiative to amend to succeed.
In the event an initiative of revision or amendment is adopted by the National Assembly, Article 143 mandates that the King must act to consult with the Constitutional Council regarding the proposal prior to its promulgation through royal assent.
Article 143 new (former Article 124)
The King consults the Constitutional Council on any proposal aiming at amending the Constitution.
Given its definitive control of the National Assembly today, the CPP has the numbers sufficient to introduce and adopt constitutional amendments. It is also important to highlight here that the constitution does not envisage any role for the Senate in the passage and adoption of constitutional laws.
The State of Emergency
Article 154 new (two) (former Article 152 new)
The revision or the amendment of the Constitution is prohibited when the nation is in a state of emergency, as provided in the Article 86.
The remaining two provisions place restrictions on the process of constitutional amendment provided that conditions precedent are satisfied. Article 154 prohibits any attempt to revise or amend the constitution during a state of emergency declared under Article 22, read with Article 86. This ensures that during a period of extraordinary national stress, when the country faces threats from external aggression or armed insurrection, the constitutional framework may not be changed or reorganized in a manner that could potentially displace a legally formed government (among other things).
An emergency can only be declared by the King through a public proclamation, upon the unanimous agreement of the Prime Minister, the President of the National Assembly and the President of the Senate. Needless to say, a state of emergency may be declared when the nation faces imminent danger, such as external aggression, or armed insurrection. While the Constitution does not provide enhanced powers to the executive branch during a state of emergency (which reduces the likelihood of abuse), when extraordinary circumstances arise leading to invocation of the emergency provisions, the Constitution provides for (i) a process to bring an end to the state of emergency; (ii) extension of the state of emergency in case the legislative bodies are unable to meet; (iii) placing a restriction on the dissolution of the National Assembly during a state of emergency, and (iv) providing for the prorogation of the Senate for a period of one year at a time (see Articles 86 and 102).
Immortal Clause
Article 155 new (two) (former Article 153 new)
The revision or the amendment of the Constitution can not be done, if affecting the liberal multi-party democracy system and the constitutional monarchy regime.
On the other hand, Article 155 falls within the category of what is known as an “eternity clause” deriving from the German term — ewigkeitsgarantie (I would however, like to allude to their ‘immortality’ instead! — អនុប្រការ អមតៈ). Such a provision is considered immutable and is meant to last in perpetuity without amendment or revision. It also acts as a bulwark, restraining the powers of the legislature to amend the constitution in the context of the specified matters even when the governing faction commands a special or extraordinary majority. The above-mentioned article proscribes the amendment of the Constitution in a manner such that would compromise the fundamental character of the polity — i.e. the “liberal multi-party democracy system”, and the “constitutional monarchy regime”. Given the language, it can be inferred that the Article was intended to cover a broad swathe of constitutional provisions as they pertain directly to the character of a “liberal multi-party democracy system” and a “constitutional monarchy regime”. Ultimately under Article 143, it would fall upon the Constitutional Council to carefully scrutinize whether any proposed revision or amendment to the Constitution contravenes the said fundamental character either in letter or in spirit.
While this eternity clause affords protection to general principles, permitting a greater margin of judicial discretion to the constitutional court to construct the law in accordance with the felt necessities of the time and the prevalent customs and traditions, it can also leave room for heterodox applications and interpretative shenanigans in equal measure.
On the Constitutional Monarchy Regime
Any article of the constitution that may be identified as falling within the ambit of the fundamental character or nature of the polity, by falling within the scope of Article 155, may be distinguished and set apart as unamendable. An obvious example of such a provision is Article 1, in which paragraph 1 describes the country as “Cambodia is a Kingdom where the King shall fulfill His functions according to the Constitution and the principles of liberal multi-party democracy.” An attempt at revising or amending the said provision in a manner that does not satisfy the prerequisites placed in Article 155 (eternity clause) shall be deemed ultra vires to the Constitution. Moreover, the postulate that amendment powers contained in the constitution may not be used to destroy the very fabric of the constitution itself rests on solid theoretical foundation. An amendment reorganizing a constitutional monarchy into a republican form of government, for instance, would not be an amendment, but rather a revolution effecting transformational change in the nation’s constitutional identity.
In a hypothetical scenario, wherein a faction possessing the necessary special majority in the National Assembly introduces an amendment that reorganizes the polity into a republican form of government, such an attempt would not be successful in overriding the mandate of the eternity clause contained in Article 155. Similarly, and among other provisions, any changes to Article 14 paragraph 1 (“Shall be elected King of Cambodia, a member of the Royal family, aged at least 30 years, descendant of King Ang Duong or of King Norodom or also of King Sisowath.”) will likely be seen as having fundamentally altered the nature of the monarchy which derives its legitimacy from the ancient traditions and customs of the Cambodian people. Ancient traditions, while varying among Indic kingdoms, by and large tie the fortunes of the royal household and the kingdom to the process of political succession and transition. Custom distinguishes between legitimate heirs and illegitimate heirs, and usurpers and pretenders to the throne. In accordance with the Constitution, the legitimate heir must possess patrilineal descent from King Ang Duong, or King Norodom, or King Sisowath. This will also include the identifiable male descendants of Prince Si Votha.
In the event any of the above hypothetically discussed amendments come to pass, even when adopted in full compliance of prescribed procedures for the adoption of a ‘constitutional law’, these amendments will likely be viewed and characterized as “unconstitutional constitutional law” by legal scholars, due to their contents contravening the mandate contained in Article 155.
Article 17
The provision, in which the King shall reign but not govern, as stipulated in Article 7 paragraph 1 of this Constitution, can not in any case be modified.
In contrast to Article 155, which offers protection to a broad swathe of constitutional provisions, the legal directive contained in Article 17 (another eternity clause) is absolute in its specificity and demands strict compliance thereof. By way of this provision, the Constitution rejects the possibility of a shift in the locus of sovereignty from “We, the Khmer People” to “We, the King”, preventing a backslide into absolute monarchy, because that would be an anathema to the rule of law.
On Permanent Neutrality and Non-Alignment
Article 1
[…] The Kingdom of Cambodia is an independent, sovereign, peaceful, permanently neutral and non-aligned State.
Article 53
The Kingdom of Cambodia maintains resolutely a policy of permanent neutrality and non-alignment. […] […] The Kingdom of Cambodia shall not join in any military alliance, nor conclude any military agreement which is incompatible with its policy of neutrality. The Kingdom of Cambodia shall not authorize any foreign military base on its territory, nor have its own military bases abroad, except within the framework of a United Nations request. […]
Article 55
Any treaty and agreement incompatible with the independence, sovereignty, territorial integrity, neutrality and national unity of the Kingdom of Cambodia shall be abrogated.
Prima facie, the articles concerning Cambodia’s neutrality, viz. Articles 1, 53, and 55, do not appear to possess the special status that is granted to other provisions under Article 155. From this narrow reading, it does appear that the National Assembly would be acting within the ambit of its lawful powers were it to choose to make amendments or revisions to these articles concerning the nation’s pledge towards neutrality and non-alignment.
Notwithstanding the above, it may be strongly posited that these provisions may not be read in isolation from the context supplied by the 1991 Paris Peace Agreements, more specifically the Agreement Concerning the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia. The agreement contains international guarantees and undertakings whose provisions survive the process of adoption of the Constitution of the Kingdom of Cambodia, thereby remaining valid and binding on the signatory nations, including the Kingdom of Cambodia, the People’s Republic of China and the United States of America. The relevant portions have been reproduced below.
Article 1:
1: Cambodia hereby solemnly undertakes to maintain, preserve and defend its sovereignty, independence, territorial integrity and inviolability, neutrality, and national unity; the perpetual neutrality of Cambodia shall be proclaimed and enshrined in the Cambodian constitution to be adopted after free and fair elections.
2: To this end, Cambodia undertakes: […] b) To refrain from entering into any military alliances or other military agreements with other States that would be inconsistent with its neutrality […]; d) To terminate treaties and agreements which are incompatible with its sovereignty, independence, territorial integrity and inviolability, neutrality, and national unity; […] g) To refrain from using its territory or the territories of other States to impair the sovereignty, independence, and territorial integrity and inviolability of other States; h) To refrain from permitting the introduction or stationing of foreign forces, including military personnel, in any form whatsoever, in Cambodia, and to prevent the establishment or maintenance of foreign military bases, strong points or facilities in Cambodia, except pursuant to United Nations authorization for the implementation of the comprehensive political settlement. (emphasis applied)
Similarly, the Agreement contains undertakings and guarantees by other signatory nations, who solemnly undertake to recognize and respect Cambodia’s sovereignty, independence, territorial integrity and inviolability, neutrality and national unity, and to refrain, among other things, from establishing or maintaining military bases, strong points or facilities in Cambodia, except pursuant to United Nations authorization.
As a signatory to the above convention, Cambodia is treaty-bound to respect the provisions contained therein, and to ensure compliance thereof. It may be inferred on this basis that an amendment that abrogates, rescinds, or deprives of force in any manner, Cambodia’s pledge to maintain neutrality in perpetuity, would be defective and infirm, i.e. on shaky legal foundation, if not outrightly violative of its commitments and undertakings in the above international treaty. The setting up of a foreign military naval base on Cambodian territory, on the other hand, would be definitively in breach of Cambodia’s undertaking in the treaty. Ergo, it can be postulated that the articles concerning the independence, sovereignty, territorial integrity, neutrality and national unity of Cambodia, are entrenched in the Constitution, and difficult to revise or amend, if not completely unamendable.
Therefore, can Cambodia revise or amend its Constitution to allow for a foreign military base on its territory? As a sovereign and independent nation, Cambodia can purport to withdraw from, and cease to abide by, its commitments under the Agreement, even though the agreement does not provide for such withdrawal. At the same time, such a path would be wrought with legal difficulty, given the corresponding changes it would work in the rights and obligations of the other signatory nations.
Constitution: Not a Suicide Pact
The Constitution of the Kingdom of Cambodia is a fairly well-written and balanced document that has served its purpose until now. This is not to say that the Second Kingdom has transformed itself into an “Island of Peace” — a rights-respecting and wealth-producing regional dynamo — as was envisioned by its founders. Cambodia still has a long way to go before it realizes the ideals enshrined in its constitution. Its relative success, however, may be attributed to the existing dispensation of the political elites, the pressure applied by a boisterous opposition that has operated in myriad forms, and the international community, since 1993. The elites have a vested interest in ensuring minimum credible implementation of the provisions of the Constitution, not only to facilitate economic growth for the sake of national and international legitimacy, but also to maintain political stability, and unity within the ruling party.
The Constitution has also undergone periods of extreme stress — the episodes of 1994 (attempted coup), 1997 (attempted coup — disputed), 2003–2004 (constitutional crisis) and 2004 (abdication crisis) come to mind — chapters that are only too well etched in the memories of Cambodia watchers. The passage of the controversial Additional Constitutional Law (ACL) especially appeared to have been predicated on the doctrine of necessity. The amendment was passed to resolve a long-standing political deadlock that had prevented the formation of a new government after the 2003 general elections. Subsequent to its passage, the Constitutional Council refused to examine its constitutionality, saying that as the amendment had achieved constitutional rank, it was therefore not subject to control by the constitutional court. Notwithstanding the controversy surrounding its passage, subsequent National Assemblies continued to invoke the provisions of ACL to select its presiding officers as well as to give a vote of confidence to new governments. In light of this, its provisions came to be regularized through the implicit acceptance by various factions who participated in the subsequently formed National Assemblies.
In the above fashion, the Constitution survived multiple challenges by demonstrating flexibility in accordance with the necessities of the time. An uncompromisingly rigid constitution would have likely been shredded by now. A constitution that will not bend, will inevitably break. In fact, the powers of revision and amendment delegated to the legislature are a constitution’s means for self-preservation, and the preservation of the nation to whom it belongs. A constitution is not a suicide pact.
Originally published on the Greater Mekong Research Center blog (Lex Kambujadesa), 10 February 2019. This is research and commentary, and constitutes personal opinion only.