Public Shut Out of National Legal Debates

Long before the laws related to the upcoming commune elections were passed by the National Assembly and Senate, civil society leaders on numerous occasions expressed their concerns about the legislation.

They complained that the laws were politicized and that the central government would still maintain power over the local government according to the legislation.

The lobbying by the civil society leaders was all for naught, for the laws were created with little public participation and the legislation was passed without any substantive changes.

But NGO representatives were not surprised, because the way the commune election-related laws were handled is the way most legislation, subdecrees and other measures are processed here. Ministries or other government agencies create laws and approve them without input from the public.

A recent 15-week legislative drafting workshop, organized by the UN High Commissioner for Human Rights office and the Asia Foundation, aimed to think of ways to change the culture of secrecy that civil society leaders say plagues policy making in Cambodia.

Participants drafted a law on public participation in policy making and a resolution to amend the National Assembly internal rules to include public hearings on legislation.

“There’s such a great deficiency of public participation in almost every aspect of policy making,” said Kek Galabru, founder of the local human rights group Licadho. “The dictatorship [of the government] is there dominating the process.”

Co-Minister of Interior You Hockry, whose ministry drafted the commune election laws, said government officials did listen to the public when creating the legislation.

“Our law clearly reflects democracy,” he said. “But our democracy is fragile so we cannot copy other countries that have a long tradition of democracy.”

The more than 20 participants of the workshop, which ended Feb 2, called on the government and parliamentarians to reform procedures to allow the public to have more input in policy making.

The law on public participation in policy making, drafted by workshop participants, contains 18 articles that call for a bureau of public documents and public notice of draft laws.

The law also says that before any draft law or sub-decree is considered by a government body, it must be subject to a public hearing, which citizens and the media will have notice of at least two months beforehand.

Tip Jahnvibol, a National Election Commission member and workshop participant, said the law was drafted as part of a legislation drafting course and would not be submitted to any government body for consideration.

Still, he said he would like to see the possibility of a law on public participation discussed in government circles, though it will be up to public officials to decide whether to move forward with the process.

“Whether or not we can do it will be up to the government,” Tip Jahnvibol said.

Workshop participants also drafted an amendment to the National Assembly’s internal rules to allow any expert commission to organize a public hearing within two weeks after a draft law is received at the Assembly or Senate.

Monh Saphan, chairman of the National Assembly’s legislative commission and workshop participant, said he will propose that parliamentarians consider the amendment when the assembly is back in session.

“This resolution is helpful to allow the public to be involved in policy making,” he said. “And if we have public participation in place, our laws will be better because what we do will reflect all parts of society.”

The last major piece of legislation considered by Monh Saphan’s commission was the draft law to try former leaders of the Khmer Rouge, which was passed by the Constitutional Council on Monday.

“I received recommendations from civil society leaders about what the Khmer Rouge draft law should include,” Monh Saphan said. “I took those recommendations into account, although they were not included in the draft law.”

Opposition lawmakers and NGO representatives criticized the process of drafting the Khmer Rouge law, saying there was no public participation.

“In a democracy, all sectors of society must have full access to policy making because laws are not made for a specific individual or group,” said National Assembly member Son Chhay, of the opposition party. “Everything must be open and transparent.”

He said the draft was created by the government and the UN in closed-door meetings. A public hearing on the Khmer Rouge law was planned by Funcinpec member Kem Sokha, chairman of the Senate’s human rights commission, but the proposal was scuttled by Senate leaders.

“This law was not good because the real victims and even the lawmakers who passed the law were not aware of what they had done,” Son Chhay said. “This secret deal had no transparency.”

He noted that the most important aspect of any public participation initiative is whether the government has the political will to abide by it.

“If we have a law and it’s not enforced,” Son Chhay said, “then what’s the use?”

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