A/HRC/4/36
page 7
18.
When the Special Representative met the President and some members of the
Constitutional Council during his second mission to discuss the Council’s role in enforcing the
constitutional guarantees of human rights, he was concerned about the fact that some members
had doubts as to the direct applicability of the treaties in Cambodian law, notwithstanding
article 31.
19.
Since the Constitution does not set out in detail the rights it guarantees, the human rights
treaties provide crucial substantive elaboration of the content of those rights. Unless the
Constitutional Council, as guarantor of the Constitution, is prepared to uphold constitutionally
protected treaty rights against encroachments from subsequent legislation, human rights cannot
be adequately protected and Cambodia’s assertion that the treaties take precedence over national
law cannot be sustained.
20.
While Cambodia’s adherence to international human rights instruments is to be
applauded, to protect human rights and meet these international obligations the Government
must ensure that individuals are able to exercise their rights under the rule of law and claim
effective remedy when these rights are violated.
II. EFFECTIVE REMEDY FOR HUMAN RIGHTS
VIOLATIONS UNDER THE CONSTITUTION
21.
The right to an effective remedy by competent national tribunals for acts violating rights
granted by the Constitution or by law is a fundamental principle of human rights. In practice,
neither the constitutional guarantees of human rights, nor the institutions created by Cambodia’s
Constitution to enforce them, provide an effective remedy for violations of human rights.
A. The Constitutional Council
22.
The Constitutional Council, which has the responsibility for protecting and interpreting
the Constitution, has shown a marked reluctance to challenge government legislation on the
grounds that it violates human rights guarantees. In December 2004, it asserted the
constitutionality of the 1991 Law on Demonstrations, despite a widespread view that the Law
violated the constitutionally guaranteed right to peaceful assembly. In November 2006, the
Council approved a Law on the Status of National Assembly Members, rejecting an application
from a group of opposition members that it violated the constitutional guarantees of
parliamentary immunity provisions and the right to freedom of expression.
23.
The promulgation of the Law on Aggravating Circumstances for Felonies, promulgated
in January 2002, in order to increase penalties, illustrates the failure of the institutions
established under the Constitution, i.e. the Government, the National Assembly, the Senate, the
Constitutional Council and the courts, to uphold rights guaranteed in the Constitution and to
ensure that children receive the protections provided for in the Constitution and the Convention
on the Rights of the Child.
24.
When the draft law was being debated in the Senate on 6 December 2001, 34 out
of 51 senators voted against the draft. Three dissenting senators were summarily dismissed from
their posts by the Cambodian People’s Party, a case that was subsequently pursued by the
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