A/HRC/18/46
V.
The Constitutional Council, human rights and Parliament
55.
The Constitutional Council was established under the Constitution to review the
laws enacted by Parliament to ascertain their compatibility with the Constitution and
thereby the fundamental freedoms and rights guaranteed by it and by international human
rights treaties ratified by Cambodia. It consists of distinguished people drawn from various
walks of public life. This is an innovative element of the Cambodian Constitution and a
very welcome addition to the institutions designed to strengthen democracy. The
Constitutional Council is a powerful body, at least on paper. Such a body for post-adoption
review of the law does not exist in many countries. In many countries, is the constitutional
court or the supreme court that has the power to declare a piece of legislation ultra vires of
the constitution. The Council is composed of one president and eight members. The
Council cannot examine any matter on its own initiative. Only the King, the President of
the Senate, the President of the National Assembly, the Prime Minister, one quarter of the
Senators, one tenth of the members of the National Assembly, or the Supreme Court can
make a request to the Council to review the constitutionality of a law passed by Parliament.
56.
In the exercise of its powers, the Cambodian Constitutional Council has delivered
some decisions with far-reaching implications, such as its ruling on the Law on
Aggravating Circumstances for Felonies in July 2007,5 drawing on international standards.
However, the scope of its work is limited by the fact that private citizens have no direct
opportunities to challenge the constitutionality of the laws enacted by Parliament. The
citizens of Cambodia have to go through their Members of Parliament to the Council and
the Members of Parliament seem to rarely exercise their powers to request the Council to
review a piece of legislation that they themselves adopted in the first place.
57.
Only a private citizen who is party to legal proceedings before a court of law can
raise the question of the unconstitutionality of a piece of legislation or decisions of other
State institutions including royal decrees, subdecrees and other administrative decisions,
but even in this case it is up to the Supreme Court to refer the matter to the Council. The
Supreme Court has not yet exercised this right even when it was called upon to do so in
some recent court cases. The Council has very few cases before it for consideration. Given
the passage of many laws and the controversy around them, some of the acts of Parliament
or its internal regulations could have been reviewed by the Council. Although article 140 of
the Constitution accords explicit powers to the Council to review the internal regulations of
the National Assembly and the Senate before promulgation, the Council has not been as
assertive and as active as it should be. It does not seem to have reviewed the
constitutionality of some of the controversial provisions in the internal rules of the
Assembly and the Senate before they were promulgated. The domination of the Cambodian
People’s Party in the State machinery seems to have led to some self-censorship by the
Council.
5
16
This law, passed in 2002, removed both the discretion that judges previously had to consider the age
of an offender in mitigation and the obligation judges had to halve any prison sentence for persons
under 18 years of age. The Constitutional Council, in 2007, ruled that the Law was constitutional but
on the basis that the Law was not intended to abrogate the protections provided to child offenders in
the 1992 Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in
Cambodia during the Transitional Period (United Nations Transitional Authority in Cambodia law),
since that would have violated both the Constitution and the Convention on the Rights of the Child. It
further clarified in its decision that international human rights treaties to which Cambodia was party
were part of domestic law and directly applicable by judges in the courts. (See A/HRC/7/56, paras.
24-26).
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