The Contemporary Cambodian Constitutional Enforcement

Assessment of Constitutional Law-Making Process and the Right to Public Participation

  • Vandanet Hing Royal University of Law and Economics

Abstract

Studies conducted on the constitutional law-making process have shown that public participation is a key element of the relationship between the government and its citizens, and legitimizes the whole process. The present paper discusses the relationship between the people and the government on the basis of the Cambodian Constitution, both de jure andde facto. As assessments, it takes the 1993 constitutional making process and the public’s participation thereto. This paper aspires to answer the following questions: firstly, how does the constitutional law-making process impact the exercise of constitutional rights in Cambodia, and, secondly, to what extent does public participation play a role in public affairs, especially insofar as the constitution and law making processes are concerned. It further suggests that the concept of meaningful public consultation on constitution and law making should be incorporated in the Cambodian Constitution.

Author Biography

Vandanet Hing, Royal University of Law and Economics

Vandanet Hing is a researcher and lecturer at the Center for the Study of Humanitarian Law at Royal University of Law and Economics (RULE). Vandanet teaches human rights law and international humanitarian law (IHL) and coaches RULE’s teams to participate in the national and international rounds of the Red Cross IHL Moot Competition in Hong Kong. Further, she has provided training on international criminal law, human rights law, and IHL to university students at various Cambodian universities, to legal professionals at the Royal Academy for Judicial Professions and to peacekeepers at National Center for Peacekeeping Force Mine and ERW Clearance. In addition to her teaching role, she has conducted research on various topics relating to constitutional law, civil and political rights, and peacekeeping. Her papers have been accepted for presentation at several national and international conferences including the 4th Southeast Asian Human Rights Studies Network (SEAHRN) and the 6th AsianSIL Biennial Conference. Vandanet holds a Master of Laws in Human Rights from Hong Kong University and bachelor’s degree of law from RULE.

References

Alec Stone Sweet “Constitutionalism, Legal Pluralism, and International Regimes” (2009), Faculty Scholarship Series, Paper 1295.

Aucoin, Louis, “Introduction” in Laurel E. Miller ed., Framing the State in Times of Transition Case Studies in Constitution Making (2010) Peacebuilding and Rule of Law.

Brandt, M., “Constitutional Assistance in Post-Conflict Countries the UN Experience: Cambodia, East Timor and Afghanistan” (2005).

Bustamante, Thomas & Fernandes, Bernardo Goncalves, “Democratizing Constitutional Law: Perspective on Legal Theory and the Legitimacy of Constitutionalism” (2016) Law and Philosophy Library.

Carothers, Thomas, “The Rule of Law Revival, Foreign Affairs 77 (1998) no. 2.

Cambodia Daily “Judge Says His Removal Was Political” 25 March 2004.

Centre for Constitutional Dialogue “Participatory Constitution Making Process”, Booklet Series (2009) No. 10.
Cambodian Constitution 1947.

Cambodian Constitution 1993.

Cambodian Center for Human Rights (CCHR) “Legal Analysis on the three draft laws relating to the judiciary” (2014).

Chandler, David, A History of Cambodia (2007) 4th Edition.

Decision No. 004/006/2001, Cambodian Constitutional Council, 2001.

Decision No. 089/016/2006 Constitutional Council, 2006.

Donnell, Guillermo O’, “Why the rule of law matters: The Quality of Democracy” (2004) Journal of Democracy.

Ghai, Y.P.,“The Constitution Reform Process: Comparative Perspectives” (2004).

Gargarella, Roberto, “We the People Outside of the Constitution: The Dialogic Model of Constitutionalism and the System of Checks and Balances” (2014).

Gargarolla, Roberto, “Scope and Limits of Dialogic Constitutionalism”, in Bustamante & Fernandes eds., Democratizing Constitutional Law: Perspectives on Legal Theory and the Legitimacy of Constitution (2016) Springer.

Grenfell, Laura, “Promoting the rule of law in Post-Conflict States” (2013) Cambridge University Press.
General Comment, Article 25 of the ICCPR.

Hor, Peng, “The Constitution of the Kingdom of Cambodia: The Evolution of Constitutional Theories and Interpretation,” in Hor Peng, Kong Phallack & Jorg Menzel eds., Cambodian Constitutional Law (2016) Konrad-Adenauer-Stiftung.

Hor, Peng, “The Modern Era of Cambodian Constitutionalism: Constitutional Analysis of Historical and Contemporary Development”, in Hor Peng, Kong Phallack & Jorg Menzel eds., Introduction to Cambodian Law (2012) Konrad-Adenauer-Stiftung.

Hall, Daniel J. & Feldmeier, John, “Constitutional Law: Governmental Powers and Individual Freedoms” (2016) 3rd Edition.

Hart, Vivien, “Democratic Constitution Making” (2003) United States Institute of Peace.

Hart, Vivien, “Constitution Making and the Right to Take Part in a Public Affair”, in Laurel E. Miller ed., Framing the State in Times of Transition Case Studies in Constitution Making (2010) Peacebuilding and Rule of Law.
Hassal, Graham & Saunders, Cheryl, “Asia Pacific Constitutional System” (2002) Cambridge University Press.

Hisham Mousar, “The Constitutional Roles and Powers of the Royal Government”, in Hor Peng, Kong Phallack & Jorg Menzel eds., Cambodian Constitutional Law (2016) Konrad-Adenauer-Stiftung.

International Covenant on Civil and Political Rights (ICCPR).

Jennar, Raoul M., “The Cambodian Constitutions (1953-1993) (1997).

Kong, Phallack, “Overview of the Cambodian Legal and Judicial System: And Recent Efforts a Legal and Judicial Reform”, in Hor Peng, Kong Phallack & Jorg Menzel eds., Introduction to Cambodian Law (2012) Konrad-Adenauer Stiftung.

Khanal, Krishna, “The Participatory Constitutional Making Process in Nepal: An Assessment of the CA Process (2008-2012)”, in Budhi Karki & Rahan Edrisinha eds., Participatory Constitution Making in Nepal: Issues of Process and Substance, Post Peace Agreement Constitution Making in Nepal, (2014) Volume I.

King, Anthony, “Modes of Executive-Legislative Relations: Great Britain, France, and West Germany” (1976) Legislative Studies Quarterly, 1:1.

Law on organization and functioning of the Cambodian Constitutional Council.

Law on Establishment of Ministry of Justice of Cambodia, 1996.

Larry Cata Backer, “Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering” (2009) Indiana Journal of Global Legal Studies, 85-172.

Lijphart, Arend, “Constitutional Choices for New Democracies” (1991).

Ly, Sok-Kheang, “Reconciliation process in Cambodia: 1979-2007” (2017) DC-Cam.

Marks, P. Stephen, “The Process of Creating a New Constitution in Cambodia”, in Laurel E. Miller ed., Framing the State in Times of Transition Case Studies in Constitution Making (2010) Peacebuilding and the Rule of Law.

Menzel, Jorg, “Cambodia: From Civil War to a Constitution to Constitutionalism? in Clauseter Hill & Jorg Menzel eds., Constitutionalism in Southeast Asia (2008) TimeEdge Publishing Pte Ltd.

Maartje, De Visser, “We All Stand Together: The Role of the Association of Asian Constitutional Courts and Equivalent Institutions in Promoting Constitutionalism” (2016) Asian Journal of Law and Society.

Mehren, Arthur Taylor Von & Gordely, James Russell, The Civil Law System: An Introduction to the Comparative Study of Law (1977) second edition.

Peace Paris Agreement, 1991.

Preah Reach Kram NS/RKM/0704/001, the Additional Provisions to the Constitution to Ensure the Regular Process of the National Institutions, 2004.

Smith, Rhona, “Statement by the United Nations Special Rapporteur on the Situation of Human Rights in Cambodia” (2017) Press Statement.

Tamanha, Brain Z., “On the rule of Law: History, Politics, Theory” (Cambridge University Press, 2004).

Teilee Kuong, “Constitutional Council of Cambodia” Constitutional Courts in Asia: Western Originals and Asian Practice (2016).

Venter, Francois, “The Rule of Law as Global Norm for Constitutionalism”, in the Legal Doctrines of the Rule of Law and the Legal State (2014) Comparative Perspectives on Law and Justice.

Universal Declaration of Human Rights (UDHR).

United Nations High Commissioner for Human Rights (UHCHR), A/HRC/33/25, “expert workshop on the right to participate in public affairs” (2016).

UN Secretary-General “The rule of law and transitional justice in conflict and post-conflict societies” (2004) https://www.un.org/ruleoflaw/what-is-the-rule-of-law (accessed 3 March 2018).

Vile, M.J.C, Constitutionalism and the Separation of Power (1998).

Wolin, Sheldon, “The presence of the past: Essay on the State and Constitution” (1989).

Yubaraj, Sangroula, “Non-extension or non-amendment? the supreme court’s originalist approach to interpreting the tenure of the constituent assembly”, in Budhi Karki & Rohan Edrisinha eds, Participatory Constitution Making in Nepal: Issue of Process and Substance, Post Peace Agreement Constitution Making in Nepal (2014) Volume I.
Published
2019-06-26
How to Cite
HING, Vandanet. The Contemporary Cambodian Constitutional Enforcement. Journal of Southeast Asian Human Rights, [S.l.], v. 3, n. 1, p. 39-58, june 2019. ISSN 2599-2147. Available at: <https://jurnal.unej.ac.id/index.php/JSEAHR/article/view/8406>. Date accessed: 15 sep. 2019. doi: https://doi.org/10.19184/jseahr.v3i1.8406.
Section
Articles

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