A group of Cambodian NGOs is expected to finalize a counterproposal today to a National Assembly draft proposal to amend the Constitution and create a Senate.
The counterproposal would create a new position for CPP President Chea Sim as head of the Constitutional Council, and discard the idea of creating a new upper house of parliament that the NGOs contend would be costly and undemocratic.
More importantly, the counterproposal would prevent drastic changes in Cambodia’s Constitution, NGO representatives said.
They see the debate over the Senate as the first major test of the document’s strength and credibility. And in the fate of the Constitution, political experts say, lies the development of the country’s adherence to the rule of law, rather than the rule of power.
The proposal to create a Senate “is the first big test case for the process of amending the Constitution,” said Kao Kim Hourn, director of the Cambodian Institute for Cooperation and Peace. “If it drastically changes the Constitution, it will unravel constitutional development in Cambodia.”
Legal experts agree that creating an up-to-61-member Senate, which could cost half the Assembly’s budget, does not violate the Constitution itself. However, the political motives for creating the Senate and the swiftness by which it gained the Assembly floor have sparked great controversy.
Instead of creating an entire Senate, the group of NGOs—which includes think tanks such as the Center for Social Development, and rights groups such as Adhoc—are proposing two new seats be created on the Constitutional Council. Chea Sim would head the council and still serve as head of state when the King is out of the country.
The plan to create a Senate, born at a Nov 12-13 summit chaired by King Norodom Sihanouk, was a political compromise that resolved a months-long deadlock between the CPP and Funcinpec by allowing a satisfactory distribution of power. Funcinpec gained the Assembly presidency. In return, the dominant CPP received support for party vice president Hun Sen as prime minister and a sufficiently prestigious position for Chea Sim, the former Assembly president.
The proposal is currently in committee at the National Assembly and is pending approval by the Permanent Committee, which would bring it to general Assembly debate.
Critics contend the Senate is an expensive institution, which, having been developed without the participation of the Cambodian electorate, could be indifferent to the wishes of Cambodians. Not least, they charge, it also assumes that law is in the thrall of political interests, rather than protecting the welfare of citizens.
For Chea Vannath, president of the Center for Social Development, the idea of changing scores of articles in the Constitution for a Senate was one she wished to avoid dwelling on.
“It’s very dangerous, changing the Constitution, because we don’t know what to expect,” she said.
Illustrating the seriousness of the matter, on Wednesday, Dieter Umbach, a German constitutional expert who helped write the Russian and South African constitutions, was invited to discuss the Senate proposal with senior Assembly leaders.
The discussion lasted six hours, he said.
In the beginning, Umbach said, he had the impression the parliamentarians were in a hurry to pass the amendment. However, he said, after discussions of the pros and cons of the Senate, the parliamentarians grew more thoughtful.
Whether the new thoughtfulness will mean success in the Assembly for the counterproposal may be another matter. And whether a willingness to consider the counterproposal signifies more respect for law or the Assembly wishing to consolidate its own power is also unclear.
“When I asked how much power they [the Assembly] wanted to give away to the Senate, suddenly the lights went on,” Umbach recalled Thursday.
On the other hand, in some political circles, the Senate is non-negotiable because of the Nov 12-13 political agreement.
According to Umbach, in a private Tuesday meeting, Prince Ranariddh seemed sympathetic to the difficulties presented by the creation of a Senate. Yet, the prince seemed to feel the momentum would be hard to stop.
“[The prince] was clearly under the impression there was an agreement among party leaders, the King, that had to be carried out,” Umbach said.
Chea Sim adviser Um Sarith, for one, was adamant the Senate negotiations will continue without change. “The creation of a Senate is already in an agreement that was signed by the two parties, including the King, and this decision must be continued,” he said by telephone Thursday. “It can’t be changed halfway.”
However, Monh Sophan, chairman of the Assembly’s legislative committee that is reviewing the proposed amendment, said Thursday that if the leaders of the two coalition parties think the issue should be re-examined, it would be up to them.
Umbach attributed part of the difficulties in resolving the Senate issue to a lack of knowledge and experience. A shallow understanding of legal procedure led lawmakers to assume the Senate could be established first, and then guidelines later, rather than the other way around, he said.
“[The Constitution] is not like a traffic law you can easily change,” Umbach said, adding that the distinction had not been clear at first among the parliamentarians he discussed.
In his three-day stay in Phnom Penh, Umbach said he had no chance to meet Chea Sim, whose need for a high-level position initiated the Senate debate.
“I haven’t seen Chea Sim. Someone should ask him, do you really want to cause all those problems? Are you aware of the avalanche you’ve started?” he said.