On August 31, 2006, the National Assembly voted for the approval of a controversial new law scrapping lawmakers' right to speak freely in parliament. Joseph Mussomeli, US Ambassador to Cambodia qualified the approval of the law as an act of "self-castration".
Below are legal comments provided by Mr. Bora Touch Esq., posted online on this topic.
1. Organic Law.
The concept of “organic law” or loi organique is a French constitutional law concept with its origins in the French Constitution of the Fifth Republic (1958) (1958 Constitution). Sometimes “organic law” is referred to as “Institutional Act”, “Institutional Law”. As correctly pointed out by James Beardsley, organic laws “are statutes supplementing, completing, or defining various constitutional provisions dealing with the organization and operation of the institutions created by the Constitution. The [1958] Constitution expressly provides for the elaboration of many of its provisions by organic law”: (James Beardsley, “Constitutional Review in France”, in The Supreme Court Review (1975), p.218) Under the 1958 Constitution, the conditions for adoption of organic laws are fixed by Article 46 [para. 5]. Id. Articles 6, 23, 25, 27, 34, 47, 57, 63, 64, 65, 67, 71, 82, 83, 84 of the 1958 Constitution, or any law relating to these articles or a public institution, such as the National Assembly, the articles meant to create, are organic law. (see also Carl Friedrich, “The New French Constitution in Political and Historical Perspective,” in Harvard Law Review (1959), p834; James Beardsley, “The Constitutional Council and Constitutional Liberties in France,” in The American Journal of Comparative Law (1972), p441). A copy of the French Constitution can be found at:
http://www.assemblee-nationale.fr/english/8ab.asp
Art. 25 of the 1958 Constitution provides that an organic law will govern parliament,[including the composition and functioning of the French parliament]. Articles 64 and 65 of the 1958 Constitution specify that organic laws will govern the Judiciary (including its composition and functioning). As in the case of the Judiciary (Statutes on Judges of the Supreme Court (1992), Law on Judiciary (1992) etc), any law whose purpose is to govern the parliamentary activities and the status of the Members, for example the French Law on Transparency in Political Life, (1988), are organic laws, which are required to be sent to and reviewed by the Constitutional Council before their promulgation (otherwise the relevant law is illegitimate and unconstitutional): (see generally, John Bell, French Constitutional Law, 1992, pp. 151, 189; “La loi organique du judicare,” Le Monde, 23/2/1992) In other words, without the imprimatur of the Constitutional Council, the law cannot be applied. (see “La loi organique du judicare,” Le Monde, 23/2/1992)
Of note, French Law on Transparency in Political Life is not mentioned in Art. 25 of the 1958 Constitution; however, because the Law relates to an aspect of the French parliament (as in the case of the Khmer Statute Act of Members of National Assembly as discussed below), it is an organic law which must be automatically reviewed by the Constitutional Council:(Art. 61(1); also Neville Brown et at, French Administrative Law, (1993) p13
The French concept of organic law appears in Article 121(2) of Khmer 1993 Constitution translated as chbab reab cham angkar. Relevant implicit and explicit articles of organic law nature of the 1993 Constitution include Articles 13, 23, 29, 31, 33, 34, 36, 37, 38, 40, 41, 42, 42, 44, 45, 49, 56, 57, 58, 76, 90, 108, 115, 116, 117,25, 127, 130.
In light of the French legal practice and tradition (as our 1993 Constitution is basically a cut-and-paste work from French Constitution 1958), Cambodia’s the Statute Act of Members of National Assembly is an organic law, which is, or should be, automatically required to be reviewed by the Constitutional Council under Article 121(2) of the 1993 Constitution before its promulgation.
Further, even if the Statute Act were not an organic law, if there is a quorum of one tenth of the Members of the National Assembly is satisfied, it can also be submitted to the Constitutional Council. Here, there was a quorum of Parliament which sought review by the Constitutional Council and, on that basis, the law was validly submitted to the Constitutional Council for its constitutionality review.
The Constitutional Council has apparently refused to review the Statute Act on the basis that 10 of the opposition members voted for the law. This is not a valid or legal reason for the Constitutional Council not to hear and decide on the constitutionality of the law, as long as there is a quorum. As set out above, as it is an organic law, the Constitutional Council must review it. Even if it were not an organic law, because the requisite quorum sought review, the Constitutional Council must review it.
Chbab thommanunh banthaem or the Law on Supplementary Constitution Aiming to Ensure the Regular Functions of the State Institutions (2004), known as the Package Legislation, is another example of “organic law” which is absolutely unconstitutional because the National Assembly could not have made an act which constituted constitutional re-arrangements from the existing constitutional structure. Despite the fact that it was well within its purview, unsurprisingly and pathetically, the Constitutional Council, by its Decision No.060/002/2004-02/07/04, ruled that it had no competence to review the legislation: (Bora Touch, “Consideration of the Constitutional Council’s Review of the 2 September 2004 on Packaged Voting Law” (unpublished 2004))
It is submitted that the Statute Act should be resubmitted to the Constitutional Council for its review.
2. Constitutionality of the Statute Act.
Article 4(2) states that parliamentary privilege (protecting the expression of opinion in the course of a Member’s parliamentary functions) is absolute. However, the privilege (which prevents a member of parliament from being charged, arrested, held or detained) is a relative parliamentary immunity (dauy preap theap): (Art. 4(3).
Article 5 states that a Member of the National Assembly cannot use his or her parliamentary privilege to violate the fame/dignity of an individual, good custom and tradition of the society, public order and national security.
Article 12 states that in a Member has committed a fragrant criminal offence, he or she can be charged, arrested, held or detained [without the need of having their parliamentary first immunity lifted].
The Statute Act threatens parliamentary privilege. This is because it is vague and will be open to various interpretations according to the caprice of the ruling party of the day. As such, those members of parliament from the opposition may be vulnerable under the law.
Article 4(3) of the Statute Act contains a warning to Members of parliament that their immunity is relative, which means that it is not absolute and is vulnerable. Article 5 provides that even if a member is acting in the course of their parliamentary duties, they cannot insult or defame anyone, they cannot violate good custom and tradition, public order or national security. None of potential offences, including defamation/insult/misinformation, are defined either under this Act or any other Acts. This may adversely impact on traditional privilege, where members of parliament may speak freely in parliament without fear of being charged with misinformation or defamation and the like.
Although not stated in the Statute Act, the laws which govern the offences referred to in Article 4(3) (defamation, misinformation, breach of national security etc) are the Regime of Press Law (1995) and the (UNTAC) Transitional Law (1992) (on “misinformation and and defamation etc), and probably the invalid Anti-Terrorist Law (1992). If a breach of law occurs flagrantly, (for example when a Member’s speech in a parliamentary session which is interpreted as a breach of the law (defamation etc), Article 12 allows the police to arrest the Member (virtually dragging the member off his or her parliamentary seat and lock him or her up) without having his or her immunity lifted because offending speech is a flagrant crime.
Articles 4, 5 and 12 of the Statute Act are unconstitutional because they infringe Article 80(2) of the Constitution which provides that under no circumstances, should a Member be arrested and charged for their doing their parliamentary duties in the course their parliamentary functions.
In any event, as set out above, the Statute Act (2006) is an organic law or loi organique. The Statute should have been automatically referred to Constitutional Council before its promulgation, failing to do so is a violation of Article 121(2) of the Constitution.
Bora Touch Esq.
September 2006
Below are legal comments provided by Mr. Bora Touch Esq., posted online on this topic.
Comments on the (2006) Statute Act of Members of
the National Assembly of Cambodia
Bora Touch esq
the National Assembly of Cambodia
Bora Touch esq
1. Organic Law.
The concept of “organic law” or loi organique is a French constitutional law concept with its origins in the French Constitution of the Fifth Republic (1958) (1958 Constitution). Sometimes “organic law” is referred to as “Institutional Act”, “Institutional Law”. As correctly pointed out by James Beardsley, organic laws “are statutes supplementing, completing, or defining various constitutional provisions dealing with the organization and operation of the institutions created by the Constitution. The [1958] Constitution expressly provides for the elaboration of many of its provisions by organic law”: (James Beardsley, “Constitutional Review in France”, in The Supreme Court Review (1975), p.218) Under the 1958 Constitution, the conditions for adoption of organic laws are fixed by Article 46 [para. 5]. Id. Articles 6, 23, 25, 27, 34, 47, 57, 63, 64, 65, 67, 71, 82, 83, 84 of the 1958 Constitution, or any law relating to these articles or a public institution, such as the National Assembly, the articles meant to create, are organic law. (see also Carl Friedrich, “The New French Constitution in Political and Historical Perspective,” in Harvard Law Review (1959), p834; James Beardsley, “The Constitutional Council and Constitutional Liberties in France,” in The American Journal of Comparative Law (1972), p441). A copy of the French Constitution can be found at:
http://www.assemblee-nationale.fr/english/8ab.asp
Art. 25 of the 1958 Constitution provides that an organic law will govern parliament,[including the composition and functioning of the French parliament]. Articles 64 and 65 of the 1958 Constitution specify that organic laws will govern the Judiciary (including its composition and functioning). As in the case of the Judiciary (Statutes on Judges of the Supreme Court (1992), Law on Judiciary (1992) etc), any law whose purpose is to govern the parliamentary activities and the status of the Members, for example the French Law on Transparency in Political Life, (1988), are organic laws, which are required to be sent to and reviewed by the Constitutional Council before their promulgation (otherwise the relevant law is illegitimate and unconstitutional): (see generally, John Bell, French Constitutional Law, 1992, pp. 151, 189; “La loi organique du judicare,” Le Monde, 23/2/1992) In other words, without the imprimatur of the Constitutional Council, the law cannot be applied. (see “La loi organique du judicare,” Le Monde, 23/2/1992)
Of note, French Law on Transparency in Political Life is not mentioned in Art. 25 of the 1958 Constitution; however, because the Law relates to an aspect of the French parliament (as in the case of the Khmer Statute Act of Members of National Assembly as discussed below), it is an organic law which must be automatically reviewed by the Constitutional Council:(Art. 61(1); also Neville Brown et at, French Administrative Law, (1993) p13
The French concept of organic law appears in Article 121(2) of Khmer 1993 Constitution translated as chbab reab cham angkar. Relevant implicit and explicit articles of organic law nature of the 1993 Constitution include Articles 13, 23, 29, 31, 33, 34, 36, 37, 38, 40, 41, 42, 42, 44, 45, 49, 56, 57, 58, 76, 90, 108, 115, 116, 117,25, 127, 130.
In light of the French legal practice and tradition (as our 1993 Constitution is basically a cut-and-paste work from French Constitution 1958), Cambodia’s the Statute Act of Members of National Assembly is an organic law, which is, or should be, automatically required to be reviewed by the Constitutional Council under Article 121(2) of the 1993 Constitution before its promulgation.
Further, even if the Statute Act were not an organic law, if there is a quorum of one tenth of the Members of the National Assembly is satisfied, it can also be submitted to the Constitutional Council. Here, there was a quorum of Parliament which sought review by the Constitutional Council and, on that basis, the law was validly submitted to the Constitutional Council for its constitutionality review.
The Constitutional Council has apparently refused to review the Statute Act on the basis that 10 of the opposition members voted for the law. This is not a valid or legal reason for the Constitutional Council not to hear and decide on the constitutionality of the law, as long as there is a quorum. As set out above, as it is an organic law, the Constitutional Council must review it. Even if it were not an organic law, because the requisite quorum sought review, the Constitutional Council must review it.
Chbab thommanunh banthaem or the Law on Supplementary Constitution Aiming to Ensure the Regular Functions of the State Institutions (2004), known as the Package Legislation, is another example of “organic law” which is absolutely unconstitutional because the National Assembly could not have made an act which constituted constitutional re-arrangements from the existing constitutional structure. Despite the fact that it was well within its purview, unsurprisingly and pathetically, the Constitutional Council, by its Decision No.060/002/2004-02/07/04, ruled that it had no competence to review the legislation: (Bora Touch, “Consideration of the Constitutional Council’s Review of the 2 September 2004 on Packaged Voting Law” (unpublished 2004))
It is submitted that the Statute Act should be resubmitted to the Constitutional Council for its review.
2. Constitutionality of the Statute Act.
Article 4(2) states that parliamentary privilege (protecting the expression of opinion in the course of a Member’s parliamentary functions) is absolute. However, the privilege (which prevents a member of parliament from being charged, arrested, held or detained) is a relative parliamentary immunity (dauy preap theap): (Art. 4(3).
Article 5 states that a Member of the National Assembly cannot use his or her parliamentary privilege to violate the fame/dignity of an individual, good custom and tradition of the society, public order and national security.
Article 12 states that in a Member has committed a fragrant criminal offence, he or she can be charged, arrested, held or detained [without the need of having their parliamentary first immunity lifted].
The Statute Act threatens parliamentary privilege. This is because it is vague and will be open to various interpretations according to the caprice of the ruling party of the day. As such, those members of parliament from the opposition may be vulnerable under the law.
Article 4(3) of the Statute Act contains a warning to Members of parliament that their immunity is relative, which means that it is not absolute and is vulnerable. Article 5 provides that even if a member is acting in the course of their parliamentary duties, they cannot insult or defame anyone, they cannot violate good custom and tradition, public order or national security. None of potential offences, including defamation/insult/misinformation, are defined either under this Act or any other Acts. This may adversely impact on traditional privilege, where members of parliament may speak freely in parliament without fear of being charged with misinformation or defamation and the like.
Although not stated in the Statute Act, the laws which govern the offences referred to in Article 4(3) (defamation, misinformation, breach of national security etc) are the Regime of Press Law (1995) and the (UNTAC) Transitional Law (1992) (on “misinformation and and defamation etc), and probably the invalid Anti-Terrorist Law (1992). If a breach of law occurs flagrantly, (for example when a Member’s speech in a parliamentary session which is interpreted as a breach of the law (defamation etc), Article 12 allows the police to arrest the Member (virtually dragging the member off his or her parliamentary seat and lock him or her up) without having his or her immunity lifted because offending speech is a flagrant crime.
Articles 4, 5 and 12 of the Statute Act are unconstitutional because they infringe Article 80(2) of the Constitution which provides that under no circumstances, should a Member be arrested and charged for their doing their parliamentary duties in the course their parliamentary functions.
In any event, as set out above, the Statute Act (2006) is an organic law or loi organique. The Statute should have been automatically referred to Constitutional Council before its promulgation, failing to do so is a violation of Article 121(2) of the Constitution.
Bora Touch Esq.
September 2006
1 comment:
Excellence comment and research, Mr. Bora Touch.
RM
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