Cambodia’s Constitutional Amendments: Consolidating Control and Securing Succession Plans

Cambodia’s Constitution recently underwent its tenth round of amendments since promulgation in 1993. Ostensibly an exercise to “fill in the gaps,” in the words of Prime Minister Hun Sen, the amendments are remarkable not so much for how they change the Constitution in formal terms, but rather for the extent to which they further consolidate the CPP’s control over political institutions and thus foreshadow a leadership transition that looms large over contemporary Cambodia. As such, the amendments represent an attempt by Hun Sen to wrap his plans for dynastic succession – in which he will hand over power to his eldest son, Hun Manet – in constitutional protections, and constitutional legitimacy - writes Dr. Benjamin Lawrence

“It’s legitimate,” read the headline of the 14 July issue of the Khmer Times, one of Cambodia’s many government-aligned national news outlets, as it reported that the Constitutional Council of Cambodia approved a host of amendments to the country’s 1993 Constitution, which were subsequently passed by a unanimous vote in parliament. That the Council approved the amendments that were put to it by the government was hardly a surprise. The body exercises mandatory a priori review over all constitutional amendments and organic laws, but has yet to strike down any law or constitutional amendment since its establishment in 1998. In strictly legal terms, this set of changes to the Constitution – which were subsequently discussed and approved by both houses of the legislature – were hardly the most remarkable, at least when viewed in comparison to some of those that it has approved in the past. One need only look at the 2004 introduction of the “Additional Constitutional Law,” which both King Norodom Sihanouk and the late Chea Sim (who was then President of the Senate and the CPP) refused to sign into law, to see the extent to which patently “anti-democratic and anti-constitutional” amendments have previously passed the muster with the Council. What is interesting about the recent raft of amendments, in fact, is not so much how they will change Cambodia’s constitutional system in formal terms but, rather, what the changes tell us about the far more monumental political changes that are on the horizon.

The thinly veiled aim of the amendments are belied by the extent to which they overwhelmingly focus on processes by which one government hands over power to another...

The amendments to the Constitution clarify the procedures for the replacement of a prime minister upon resignation or death, enshrine the role of interim or caretaker governments, and adjust the rules by which governments can be formed. In the words of Prime Minister Hun Sen, the changes aim to “fill in the gaps” of the Constitution. Yet, while the Constitution has always had some notable areas of ambiguity, likely owing to both the hurried nature of the drafting process in 1993 and the fragility of the political compromise that it represented at the time for the previously warring factions, the thinly veiled aim of the amendments are belied by the extent to which they overwhelmingly focus on processes by which one government hands over power to another. Far from being a routine or technocratic exercise, in other words, the changes raise the spectre of an imminent handover of power, as the world’s longest-serving elected Prime Minister continues his preparations for a dynastic succession in which he is poised to be replaced by his eldest son, Lieutenant General Hun Manet. A graduate of the U.S. Military Academy at West Point who also holds a doctorate in economics from the University of Bristol, Hun Manet is now a senior member of the military and the Chief of Joint Staff of the Royal Cambodian Armed Forces.

Cambodia’s Tenth Round of Constitutional Amendments

The amendments focus on six constitutional articles (19, 89, 98, 102, 119 and 125), as well as two articles (3 and 4) of the Additional Constitutional Law (itself an addendum to the Constitution that is of questionable validity, having been passed in procedurally dubious and political contentious circumstances). While some of the current amendments are fairly perfunctory, others make subtle changes to the way in which governments are formed by parliament and the way in which prospective Prime Ministers are nominated. Rather than viewing each amendment in turn, it is easier to consider the amendments thematically, as they fall – broadly speaking – into one of five categories.

Changes to Articles 89, and 102, for instance, attend to details of parliamentary procedure. The former clarifies (somewhat unnecessarily) the National Assembly’s mandate to question members of the executive branch, instead of the vaguely worded reference to questioning “high ranking personalities.” Meanwhile, the latter specifies that any decision to end a State of Emergency (pursuant to Article 22 of the Constitution and the Law on Management of the Nation in a State of Emergency, passed in 2021, ostensibly in response to the Covid-19 pandemic) must be made by a combined decision of both the National Assembly and Senate. This, the Minister of Justice Keut Rith explained during a lengthy press conference, is to avoid a situation in which the two Houses come to differing decisions.

Similarly, changes to Article 98 also increase the threshold for the National Assembly to trigger a vote to unseat a government. Where it previously provided for a vote of no confidence at the written request of 30 MPs, the recent amendments mean that Article 98 now requires a full third of the members of the house (or 42 of the Assembly’s 125 members) to request such a vote. This, according to the Justice Minister, simply reflects the fact that the 30-MP threshold had no constitutional precedence, perhaps as it was drafted at a time when the lower house had fewer seats. However, the amendment does have some (albeit negligible) effect on the ability of parliament to hold the executive to account.

The process by which a government is formed, then, is adjusted in the alterations made to Article 119, as well as to Article 4 of the Additional Constitutional Law (which was passed in 2004 to overcome a post-election stalemate that prevented the formation of a government for some 11 months). Article 119 of the Constitution previously left it to the President and the First and Second Vice-Presidents of the National Assembly, who are elected by an absolute majority of the National Assembly (according to Article 82), to propose a new Prime Minister, who is then invited by the King to form a government. However, the revised version of Article 119 now leaves it to the party with the largest number of seats to make such a proposal directly to the King while simultaneously notifying the National Assembly hierarchy. For good measure, Article 119 also now explicitly requires a vote of confidence on any prospective government for the Cabinet as a whole, thus removing the hypothetical possibility that confidence could be withheld from specific individuals (including the Prime Minister).

The amendments include additional provisions where the role of a caretaker government was previously only implied...

More tellingly still, the amendments include additional provisions where the role of a caretaker government was previously only implied. Specifically, Articles 98, 119, and 125, which deal with instances where a government is removed by parliament, completes its mandate, or ends its mandate early due to the resignation or death of the Prime Minister, now include the explicit directives that the sitting Council of Ministers will continue to exercise only its daily functions until a new Cabinet reaches office, and (in the case of Article 125) for a pre-assigned Deputy Prime Minister to serve as an interim head of the government. Speaking at the Royal University of Phnom Penh, where he was being awarded an honorary doctorate, Prime Minister Hun Sen made explicit reference to the role of the interim Prime Minister in the UK (where Boris Johnson continued to occupy 10 Downing Street while his governing Conservative Party elected a new leader). Under such circumstances, the PM asked: with the previous procedures, “Who would rule the country?”

In a similar vein, amendments to Article 125 provide far more precise details on procedures for circumstances in which there is a temporary or a permanent vacancy in the post of Prime Minister, either due to ill-health, death, or resignation. Here, amended provisions of Article 125 now give clear directions as to who is responsible for appointing an interim Deputy Prime Minister, how a Prime Minister is to resign, and what the procedures (and timelines) are for the creation of a new government. The changes clearly aim to remove any ambiguity or room for discretion by the actors involved in the process.

A Swift Process in a CPP-dominated Parliament

In characteristic style, the amendments sailed quickly through the various institutions and into law. Initially discussed by the Council of Ministers on 8 July, they were approved by the Constitutional Council five days later. The amendments then received the unanimous approval of the National Assembly on 28 July, followed by the Senate on 5 August, before being signed into law by King Norodom Sihamoni the following day. Responding to suggestions that the amendments should be put to a referendum, Hun Sen noted that there was no precedent for the holding of a plebiscite to approve constitutional changes in Cambodia, before citing Covid-19 as a reason for avoiding delay. Constitutional amendments in Cambodia, however, have always tended to be hurried affairs, perhaps as a deliberate way of minimising the time available for domestic or international mobilisation against them.

Under the previous rules, it would have been possible – at least hypothetically – for a coalition of smaller parties in the National Assembly to outflank the party with the largest number of seats.

Nevertheless, the current changes did not pass entirely without criticism. They were openly opposed by a number of opposition parties and civil society organizations, all of whom raised concerns about the extent to which changes to Article 119 would potentially weaken the power of the legislature, and particularly that of minority parties within the National Assembly, by limiting the prerogative to form coalition governments solely to the party that wins the largest number of seats in the National Assembly. Under the previous rules, it would have been possible – at least hypothetically – for a coalition of smaller parties in the National Assembly to outflank the party with the largest number of seats, which since 1998 has been the Cambodian People's Party (CPP) and before Cambodia’s U.N.-administered transition was the CPP’s predecessor party, the Kampuchean People's Revolutionary Party (KPRP). Thus, before the current changes were implemented, it was conceivable that an anti-CPP coalition could one day dislodge the ruling party. Such a potentiality was significant, since the CPP has won less than 50% of the popular vote in all but two of the General Elections since 1993 (specifically, falling short of that target in 1993, 1998, 2003 and 2013), albeit while still winning an absolute majority of seats in parliament in every election except that of 1993. To add to these concerns, of course, the amendments were approved by a lower house in which the CPP has held all 125 seats since the 2018 elections (before which the main opposition had been dissolved by the Supreme Court), and then by a Senate in which it holds 58 out of 62 seats.

Paving the Way for Dynastic Succession: Removing Opposition From Outside the Party

The changes, then, signal a (perhaps final) departure from a constitutional order that prioritised consensus between political parties, to one in which the ruling party’s hegemony is enshrined. Written in 1993, with the civil conflict that had plagued Cambodia for more than two decades slowly winding down (but not yet fully concluded), Cambodia’s Constitution originally required a two-thirds majority in parliament for the formation of a government. This high threshold led to the formation of uneasy coalitions between the CPP and the royalist party, FUNCINPEC, after the first three elections (in 1993, 1998 and 2003). Only in 2006, thanks to a political miscalculation by opposition leader, Sam Rainsy, was this threshold lowered to an absolute majority. The present removal of the possibility that a group of smaller parties might form a coalition ahead of the largest party in the parliament, then, can be seen as the CPP completing this trajectory.

However, the present amendments to the Constitution can be seen not only as an attempt by the ruling party to consolidate its power vis-à-vis its opponents, but also as an attempt by the Prime Minister to fire-proof his succession plans against any opposition or dissent from within his own party. This is partly because the task of consolidating power and weakening the opposition has been largely achieved by the CPP. The ruling party responded decisively to their near (or, by some accounts, actual) loss in the 2013 elections, and did so with an increasing reliance on legal tools. The introduction of a far-reaching but vaguely worded Law on Associations and Non-Governmental Organisations (LANGO) in 2015, and a Law on Trade Unions in 2016, helped to undermine the broader societal coalition on which opposition politics had leant. Changes to the Law on Political Parties in March and July of 2017, then, allowed for the dissolution of the main opposition party, the Cambodian National Rescue Party (CNRP), by the Supreme Court in late-2017. With one opposition figurehead – Kem Sokha – still on trial for treason (a charge for which he was arrested more than 5 years ago), the other – Sam Rainsy – remains in exile as he seeks to avoid a host of criminal convictions, including for the offence of lese-majesté (which was introduced to the Criminal Code in 2018, as I have discussed elsewhere).

A similarly hasty set of constitutional amendments passed in 2021 appear to have explicitly targeted Sam Rainsy and other senior members of the political opposition. Specifically, changes to Articles 19, 82, 106, 119, and 137 of the Constitution, as well as Articles 3 and 4 of the Additional Constitutional Law, prohibit anyone with a second (or third) citizenship from assuming the role of Prime Minister, or President of the National Assembly, Senate, or Constitutional Council. The changes are, in some ways, reminiscent of those that were introduced into the Constitution of Myanmar by the Tatmadaw to prevent Aung San Suu Kyi from becoming President. While the CPP has increasingly sought to borrow constitutional ideas from autocratic neighbours, and Hun Sen had publicly contemplated the introduction of such a rule in the recent past, the Cambodian iteration was finally precipitated by much more peculiar circumstances: specifically, the misreporting of details from the Panama Papers, wherein The Guardian newspaper wrongly suggested that the leaked documents showed that Hun Sen had acquired Cypriot citizenship. By the time the statement had been retracted by The Guardian (with the paper correcting its story to refer to “a member of Hun Sen’s inner circle”), the original story had already been shared widely via social media by Cambodia’s exiled opposition, many of whom are dual nationals. The immediate response of Hun Sen, to introduce to the Constitution rules that bar dual nationals from high office, was intended as both a very public reaffirmation of the falsity of the claims and a punishment for the opposition.

And Within…

With the political opposition thus already nullified, it seems possible that the current constitutional amendments are at least partly motivated more by a concern about the potential for internal party divisions and competition within the CPP to unsettle Hun Sen’s plans to hand power to his son. Though far from being fractious, the Cambodian People’s Party – like any political group with a reported membership of more than 6 million – is hardly a monolith. The visible competition between competing factions which characterised the 1980s and 90s – wherein the group aligned with Hun Sen (and the late Sok An) largely outmanoeuvred that of the late party President (Chea Sim) and the Minister of Interior (Sar Kheang) – has since been replaced by a far more subtle and implicit tension, which continues to divide along similar lines. Hence, when Prime Minister Hun Sen announced in December 2021 that he planned to nominate his son, Hun Manet, as his successor for the leadership of the CPP, the cacophony of public statements of approval from around the party was almost drowned out by the deafening silence from Sar Kheang. That is, of course, until a less than convincing message of support appeared from the Minister of Interior days later, once speculation as to the meaning of the silence had already reached fever pitch.

Viewed from this perspective, changes to Articles 119 and 125 are the centre of the current reforms, as they clarify constitutional procedures to guarantee a smooth and stable transition in which, regardless of the circumstance, nothing is left to chance. For a Prime Minister who has so often anchored his legitimacy in a claim to being the bringer of peace and stability – and subsequently development – in Cambodia, this is a paramount concern. There is of course more than a hint of irony here, as a Prime Minister who has so often been criticised – by domestic and international audiences alike – for running roughshod over constitutional process and rights guarantees now turns to the Constitution to enshrine his own dynastic succession plans. Moving beyond cynicism, however, the current amendments are testament to the extent to which constitutions can be of great utility to autocrats who seek to consolidate their power. For those with an interest in understanding the role of constitutions in authoritarian regimes on their own terms, in other words, Cambodia’s recent reforms offer a fascinating real-time example of what Ginsburg and Simpser have described as the “operating manual” or “coordination device” function of a constitution.

Benjamin Lawrence is a Research Fellow at the Centre for Asian Legal Studies, National University of Singapore.

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Suggested citation: Benjamin Lawrence, ‘Cambodia’s Constitutional Amendments: Consolidating Control and Securing Succession Plans’, ConstitutionNet, International IDEA, 28 September 2022, https://constitutionnet.org/news/cambodias-constitutional-amendments-consolidating-control

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