Citizen right in contstitutional double jeopardy: Opinion by Kok Sap

5 January 2010
By Kok Sap
Originally posted at: http://khamerlogue.wordpress.com

Cambodia 1993 Constitution article 39 states: Khmer citizens shall have the right to denounce, make complaints or file claims against any breach of the law by State and social organs or by members of such organs committed during the course of their duties. The settlement of complaints and claims shall reside under the competence of the courts.

In reference to recent incident in land dispute in Koh Kban commune, it is clear the right of land ownership and citizen right were violated by the state organ. In this case, the state organ is the Join Border Commission and Chantrea District authority. It diligently disputes and charges land owners with public property destruction for the removal of its illegally planted wooden posts on private land without individual owner knowledge and consent.

In the essence of law, the land owners shall have right to speak up and demand government explanation. It's a farce that such charges are brought up against the private land owners by the state organ. Obviously, the sate organ fails to abide and obey the law.

In addition, in the event that the state requires such land for purpose of governmental use, article 44 states: All persons, individually or collectively, shall have the right to ownership. Only Khmer legal entities and citizens of Khmer nationality shall have the right to own land. Legal private ownership shall be protected by law. The right to confiscate possessions from any person shall be exercised only in the public interest as provided for under law and shall require fair and just compensation in advance.

Within article 44 provision, individual citizen right and the property ownership is warranted the due respect and right of defense accordingly.

However, it appears the state organ has not only violated the law but misused the law to shield own malfeasance. It is the state organ that caused proof of burden and anguish which merited emotional reactionary from land owner. It fails its duty not to make aware of its premeditated intent which concerned the land owner right but fair compensation in advance too. Thus it appears the state organ acts in own behalf with no regard to the merit of the lawful and landowner right.

Up to date, the state organ has 3 people arrested and jailed. There will be other 3 are soon to be arrested. Despite its failure to follow the law, the state organ is pressing forward with public property destruction and incitement to disturb peace and order charges. Interestingly, the land owners are fell victims of the same constitutional law that obliges the state to regard and protect it.
Based on the proved and circumstantial evidences, the land is a private property belongs to the private citizen whose right is guaranteed by the law. Thus the state organ is undoubtedly culpable of its own negligence and failure to heed the spirit of the law.

This is very comical and a reminder of Cambodia still remains under Pol Pot regime influence which people is nothing to the state interest and its agent. Having seen this happened over and over in present regime, its constitutional law validity and jurisprudence seems in double jeopardy.

Indeed, in Cambodia, government agent is above and the abuser of the law.

AHRC: Immunity from prosecution for former King Sihanouk is illegitimate, unconstitutional and indefensible

FOR IMMEDIATE RELEASE
AS-211-2007
September 03, 2007

A Statement by the Asian Human Rights Commission

CAMBODIA: Immunity from prosecution for former King Sihanouk is illegitimate, unconstitutional and indefensible

On August 24, 2007, the Cambodian Government, the National Assembly, the Senate, the ruling Cambodian People's Party and its coalition partner FUNCINPEC, in unison decried a request for former King Sihanouk to be stripped of his immunity and face trial in the Khmer Rouge Tribunal. The request had been made to the National Assembly by a little-known US-based Cambodian association called the Cambodian Action Committee for Justice and Equity. In their respective statements, they glorified Sihanouk's service to the Cambodian nation, which gave it its independence, territorial integrity, unity and national reconciliation. They also claimed Sihanouk had suffered when he had been overthrown by a coup in 1970 and when he had been under the Khmer Rouge's rule between 1975 and 1979. Sihanouk "had suffered more than most rulers," Prime Minister Hun said.

The government branded the request as being a "public agitation" that "could have the result of jeopardizing the peace and unity" of Cambodia "and play into the hands of those who would seek to return (the country) to its former state of war and chaos." Hun Sen called the request "very barbaric" and said that the top State institutions could not stand by and watch it set a fire blazing in the heart of the Cambodian people. Also in unison, all the State institutions "absolutely rejected" and "condemned" the request.

Sihanouk was crowned King in 1941 and abdicated in 1955 in favour of his father, King Suramarit, two years after having achieved independence for his country from France. In 1960 he became Head of State, with executive power, although he was not crowned king at that time. In 1970 he was overthrown in a coup staged by his Commander-in-Chief, General Lon Nol. His overthrow engulfed Cambodia in the Vietnam War and led to the Chinese-backed Khmer Rouge's open armed struggle alongside the Vietnamese communist forces. Sihanouk, while in China in the immediate aftermath of being overthrown, became the head of the Khmer Rouge-dominated government in exile. From China, Sihanouk was using his popularity to mobilise the Cambodian people to "go into the maquis (jungle)" to join the Khmer Rouge, who were emerging to fight against the Lon Nol regime with the help of the Vietnamese communist forces. He remained Head of State of the Khmer Rouge regime until 1976, one year after the Khmer Rouge's victory. In 1982 he again became Head of State of the Cambodian resistance movement against the Vietnamese-installed government in Cambodia. At the end of this war, in 1993, he was re-crowned king. Many Cambodian people still believe that Sihanouk was instrumental in the Khmer Rouge's victory, and was therefore also responsible for the suffering of the Cambodian people under the Khmer Rouge's rule.

In early October 2004, King Sihanouk abdicated, this time in favour of his son, King Sihamoni. Upon his abdication, in recognition of his life-long dedicated service to the country and achievements, the Cambodian Parliament conferred upon Sihanouk the title of "Great Valorous King" that granted him the same privileges and immunities as those constitutionally conferred upon the reigning monarch, as provided for in Article 7 of the constitution of the country. This was then enshrined in the Law on the Titles and Privileges of the Former King and Queen of Cambodia that was promulgated on October 29, 2004, by King Sihamoni. In their opposition to the request to strip Sihanouk of his immunity from prosecution, the top State institutions cited Article 7 which states, among other things, that "the person of the king is inviolable." They all held that the request would violate both the 2004 law and this article of the constitution.

The Asian Human Rights Commission holds that the Constitution of Cambodia, in its letter and spirit, confers inviolability including the immunity from prosecution upon the person of the reigning monarch, and not upon anybody else. No act of parliament can confer the same inviolability upon former King Sihanouk. Only a constitutional amendment could do that, although the immunity so conferred would still have no moral legitimacy.

The October 29, 2004 law that is being cited lacks legitimacy and is unconstitutional, and cannot therefore be used to enable former King Sihanouk's immunity from prosecution. There should be no obstacles preventing the Khmer Rouge Tribunal from summoning him to appear, if truth, justice and/or the rights of any concerned person should so require. Should Sihanouk himself or any or all of above-mentioned top State institutions obstruct its order based on this alleged immunity, the tribunal should challenge the constitutionality of this immunity at the Constitutional Council of Cambodia. After all, trials in Cambodia are no longer conducted in the name of the King, but "in the name of the Cambodian people" as stipulated in Article 129 of the Constitution. With the democratization of justice, even the reigning monarch's immunity is itself an anachronism, and that of former kings is simply indefensible.

The Asian Human Rights Commission strongly urges the Cambodian Government, the National Assembly, the Senate and the Cambodian People's Party not to attempt to defend former King Sihanouk's immunity from prosecution, as it is both unconstitutional and indefensible. They should lend support to the Khmer Rouge Tribunal, and should truth, justice and/or the rights of any concerned person require it, Sihanouk should be summoned to appear before it as a defendant or as a witness. As Cambodia is supposed to be a democratic country that is governed by the rule of law according to its constitution, equality before the law should be steadfastly upheld, and no one, including former King Sihanouk, should be above the law.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.