Week 529 – Sunday,2007-10-14: Laws Cannot Be Arbitrary
The Mirror, Vol. 11, No. 529
While we published only translations from the Khmer press on Monday and Tuesday because of the Phchum Ben Cambodian National Holidays, we had an article on Monday which raises a number of fundamental questions: the draft Law on Demonstrations resulted in critical evaluations of the draft prepared by the Council of Ministers, and it can be expected that “there is wide interest to wait and see the decisions” of the National Assembly over this issue – in a similar way as one article stated that “there is wide interest to wait and see the decisions of the court over these two complaints” – the charge and counter-charge between The Cambodia Daily and Radio Free Asia.
The draft Law on Demonstrations relates to fundamental questions. How are laws made? Can anything be declared to be law? Do the lawmakers – the elected representatives of the people – have complete freedom to decide whatever they want, or is the work of the National Assembly bound to observe certain overriding concerns? This is, of course, not a new question, and it is, of course, not a question considered only in Cambodia.
The framework for a legislative assembly is, of course, the constitution of a country. And if the work of a legislative assembly seems to be in conflict with the constitution under which it has to work, many countries have – in their constitution – regulations for an independent constitutional court to check the products of the legislative, and also to check how the executive uses the laws.
In this respect, the Constitution of the Kingdom of Cambodia has opted to stand in historical line with legal developments of the world, through Article 31 of the Constitution:
“The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women’s and children’s rights.”
By having this reference, Cambodian laws – in order not to violate the Constitution – must be in line with the United Nations Charter and the Universal Declaration of Human Rights. And Cambodia has, by decisions of its competent organs, also acceded to a number of other UN convention, like the International Covenant on Economic, Social and Cultural Rights 1966, and the International Covenant on Civil and Political Rights of 1976 and some others.
While frequent reference to these modern international commitments is important, we will also look into their history – how and where and when such basic legal convictions were developed.
The UN Universal Declaration of Human Rights of 1948 – after the end of the Second World War – is often seen in a historical line connecting it back to other documents.
In the year 1100, Henry I was crowned as King of in England – at the time of King Jayavarman VI in Cambodia, who reigned from 1080 to 1107. Henry I achieved this only after suppressing opposing forces, and by declaring a Charter of Liberties, which restricted his own freedom, as part of administrative reforms. He had to assure certain rights to his subjects, because his brother and predecessor had been abusing his power in government, collecting taxes arbitrarily, and selling appointments to high offices for money. Such corrupt practices should be made impossible by assuring certain rights, and by laws which bound the King to observe those rights.
This Charter of Liberties is an important predecessor to the much more widely known Magna Carta – also called Magna Carta Libertatum in Latin – the Great Charter of Freedom. It was written in 1215 – at the time when King Jayavarman VII organized the building of some of the most colossal works of architecture of the Khmer empire. It was written because of disagreements between different sectors of society about the rights of the ruler, and it required the King to give up some rights, and it made also the king to respect the rule of law. Especially it assured citizens protection from arrest and imprisonment by the government without due process of the law.
Many later decisions to firmly enshrine freedom in basic documents of different societies have built on previous history, though using different terminology and developing the basis of declared freedoms further, like the 1776 United States of America Declaration of Independence, with President Thomas Jefferson’s words:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights…”
What is new in that document is that the conviction of the equality of all – though based, for Jefferson, in his Christian faith that God has created all as equal – is considered to be self-evident, and therefore inalienable: there is no way to deny and to take these self-evident rights of everyone away.
Not much later, at the time of the French Revolution, the Declaration of the Rights of Man and of the Citizen of 1789 was adopted by the same assembly that then elaborated a new constitution for France, indicating that the declaration of rights is the basis on which the new constitution is to be built. And it is important to note that here, such fundamental rights at the basis of the constitution of one state are not only declared for French citizens, but are considered to be valid everywhere and any time, as human rights. Therefore this document can be considered as an early draft for the Universal Declaration of Human Rights, written by the original member nations of the United Nations in 1948.
So Article 31 of the Cambodian Constitution declares, after the reference to the relevant UN covenants:
“Every Khmer citizen shall be equal before the law, enjoying the same rights, freedom and fulfilling the same obligations regardless of race, color, sex, language, religious belief, political tendency, birth origin, social status, wealth or other status. The exercise of personal rights and freedom by any individual shall not adversely affect the rights and freedom of others. The exercise of such rights and freedom shall be in accordance with the law.”
It is on this background that the discussion and adoption of a Cambodian Law on Demonstrations must be carried out.