I. CAMBODIA'S ‘DESCENT INTO OUTRIGHT DICTATORSHIP’Footnote 1
On 25 November 2017, less than three months after the midnight arrest of opposition leader and Member of Parliament (MP), Kem Sokha, on suspicion of treason, the Cambodian Supreme Court decided to dissolve the country's main opposition party, the Cambodian National Rescue Party (CNRP). The decision to dissolve the CNRP also imposed a five-year ban from political activity on Kem Sokha and 117 other members of the party, of which he was President. The dissolution, meanwhile, precipitated the removal from office of all CNRP elected officials, including close to 5,000 local representatives who had won seats in Commune elections just five months prior. Essentially foreclosing the result of the general election the following July (widely anticipated to be the most competitive in the country's recent history),Footnote 2 the Court's decision marked the culmination of a sustained campaign by the ruling Cambodian People's Party (CPP), which used the legal devices at its disposal to undermine its political opponents. The very ability of the Supreme Court to hear such a case against a political party, for example, was only made possible by two sets of amendments to the Law on Political Parties by the National Assembly and the Senate – in votes that were boycotted by the CNRP – in February and May 2017, respectively. While the complaint against the CNRP was brought to the Court by the Ministry of InteriorFootnote 3 at the request of two smaller opposition parties,Footnote 4 the case itself was prosecuted by the government – which was represented in court by a team of lawyers that included the Prime Minister's personal lawyer – and was presided over by Chief Justice Dith Munty, who is himself a member of the CPP's Permanent Committee.Footnote 5
While unprecedented in its severity and finality, the move to formally dissolve the opposition is in many ways only the most recent iteration of the government and the ruling party's approach to law, particularly the Constitution of the Kingdom of Cambodia 1993 (hereinafter ‘the Constitution’). That is, while being elevated as a source of legitimacy, the Constitution is simultaneously hollowed out in practice, as the ruling party seeks to neutralize the normatively liberal-democratic power of the Constitution, which is protected by an eternity clause in Article 155.Footnote 6 Rather than being openly disregarded or amended, then, the Constitution is treated as a tool for the maintenance of law and order and stability; norms which, I argue in this article, animate state-led constitutional practice in Cambodia. Hence, in the process of legitimacy-making around the Supreme Court's decision, key figures within the Royal Government of Cambodia contributed to the construction of an elaborate public narrative, with the CNRP portrayed not only as treasonous – based on Kem Sokha's relationship with representatives of the US government – but also as anarchistic, violent, and criminal. Meanwhile, leading voices within the CPP took great pains to explain their actions – to both domestic and international audiences – in terms of their legality and, more notably, their constitutionality.
While the ruling party's attempts to legitimize its rule through appeals to legality and constitutionality may not come as much of a surprise, it is symbolic of a wider trend in Cambodian politics that, I suggest, has long been overlooked. This is a trend in which authoritarianism is framed in terms of adherence – or even fidelity – to the procedural requirements and the normative spirit of what is formally a liberal-democratic Constitution, at the same time as those very same processes and principles are being hollowed out in the everyday constitutional practices of governance and in the discursive acts that surround these practices. Therefore, this article aims to make two separate contributions that are in many ways interconnected. Firstly, it provides an empirically grounded and theoretically resonant insight into constitutional practice in Cambodia, a country that has largely been overlooked by constitutional literature, and where wider academic scholarship has paid little attention to the Constitution. Secondly, it demonstrates how attention to discourse can also contribute to the construction of more nuanced understandings of constitutionalism, by highlighting how even authoritarian regimes engage in projects by which they assign meaning to the constitution in order to facilitate and legitimate specific – in this case illiberal – outcomes.
Before detailing exactly how the CPP's dualistic approach to the Constitution works in practice, I will first outline the somewhat novel approach to constitutionalism that is required to properly understand its operation in Cambodia. This approach to constitutionalism goes beyond simply demonstrating the empirical fact that law is weaponized for authoritarian purposes in Cambodia, to also provide insights into how law is weaponized. Specifically, by using interpretivist methods, this article highlights the ways in which meanings that facilitate and legitimize such weaponization of law are assigned to the Constitution through everyday discursive practices that surround legislative and judicial processes in Cambodia. To do this, I begin by explaining how the Constitution has been overlooked in Cambodia, due to a simplified approach that either (a) associates constitutionalism exclusively with liberal democracies and dismiss all else as a sham, or (b) focuses on what is missing in Cambodia's legal system rather than recognizing what shapes its functioning. Turning to the wider literature on constitutionalism, I examine recent attempts to reconcile the increasingly prevalent relationship between constitutionalism and authoritarianism in theoretical works that form the foundation for this article's account of constitutionalism in Cambodia. Here, I explain how theories of abusive and authoritarian constitutionalism,Footnote 7 despite their utility, are nevertheless limited by a preoccupation with macro-level constitutional reform or replacement, and failure to account for the ideas and discursive acts that animate everyday constitutional practice, respectively. Noting how socio-legal scholarship on authoritarian regimes is increasingly highlighting the significance of opposing ideas, I then draw on the work of Nick Cheesman and Sarah Biddulph to posit that understanding the pervasiveness of ideas of ‘order’ and ‘stability’, respectively,Footnote 8 is fundamental to comprehending the processes by which the normative power of the Constitution is hollowed out and the weaponization of law legitimized.
Turning to recent events in Cambodia, this article goes on to demonstrate how constitutional vocabulary and procedures have in fact been central to the CPP's attempts to undermine the liberal, multi-party democracy promised by the Constitution: first through the whittling away of parliamentary immunity, and then through the dissolution and criminalization of the CNRP. While hardly exhaustive of the examples of authoritarian constitutional practices in Cambodia, these two interconnected issues have been specifically chosen for two reasons. Firstly, they were the most prominent macro-political issues throughout the period in which fieldwork for this article was being conducted, and as such, dominated a large proportion of the more than forty-five interviews conducted during 2016 and 2017. Secondly, as will be explained below, these two issues, when taken together, provide a representative snapshot of the way that constitutional practices have developed in Cambodia. Focusing on the dissolution of the CNRP, in other words, highlights the extent to which the use of law (and the Constitution) for anti-democratic purposes has indeed escalated in recent years. It also highlights the potential for Cambodia to contribute to the growing literature that exists on ‘megapolitical cases’ decided by courts in Southeast Asia,Footnote 9 as the dissolution of the CNRP effectively decided the outcome of an election in advance and signalled Cambodia's ‘descent into outright dictatorship’.Footnote 10 Meanwhile, foregrounding this with a discussion of parliamentary immunity also acts as a reminder that this trend is far from new, as the suspension of parliamentary immunity for opposition politicians has been a consistent feature of party politics in Cambodia over the past two decades, even if it has only come to prominence in recent years.Footnote 11 Returning these concepts to the 1993 constitution-drafting process, I suggest that law, order, and stability can be understood to form part of the state-building narrative into which the Constitution was thrust, and remain as a hidden subtext for reading the document itself. To shed light on this trend, this article takes a mixed-methods approach that interweaves an empirical account of recent events, along with an awareness of historical precedents and context, with a more interpretivist approach that pays particular attention to the way in which meanings are assigned to the Constitution by political actors. This holistic approach enables the two case-studies to be presented as snapshots. While certainly not exhaustive in their scope, these snapshots are at least representative of the constitutional practices in Cambodia since 1993, indicative of some of the shifts that the country is currently witnessing, and suggestive of the benefits that a socio-legal approach can have to the study of constitutionalism.
II. RETHINKING CONSTITUTIONALISM IN CAMBODIA
It is perhaps unsurprising that most academic accounts of governance in Cambodia overlook the Constitution. Rightly acknowledging the well-documented importance of informal institutions like corruption and patronage,Footnote 12 many scholars implicitly dismiss the Constitution as a mere parchment barrier with little practical or normative influence in Cambodian society. As Astrid Noren-Nilsson explains, the fact that ‘[p]olitical science scholarship has produced a solid corpus of analyses of how power politics has played out in … Cambodia,’ often at the expense of more fine-grained attention to national imaginaries or political discourse, for example, demonstrates ‘a tacit understanding that … [the latter] are dwarfed, or made outright irrelevant, by the crudeness of the political game.’Footnote 13 Meanwhile, Cambodian legal scholarship tends to focus on doctrinal interpretations of the text of the Constitution, treating the notion of liberal democratic constitutionalism as a linear work in progress.Footnote 14 While both approaches are understandable, they tell us very little about the role that the Constitution – or law more generally – actually plays in Cambodia.
The small subset of literature that exists on Cambodia's legal system, meanwhile, exhibits a similar tendency to simplify, and thus mischaracterize or ignore, the empirical realities that exist in the country. Specifically, scholarship on rule of law often follows the work of Randall Peerenboom in drawing a binary distinction between the practices of ‘thin’ and ‘thick’ rule of law before applying it to Cambodia.Footnote 15 Most recently, for example, studies by Stephen McCarthy and Un Kheang have suggested that Cambodia practices a ‘thin’ rule of law, due to fact that the legal system is used to undermine political opponents of the ruling party.Footnote 16 The irrefutable fact that law in Cambodia remains a tool of the powerful, then, is considered a sufficiently comprehensive understanding; an approach that leads the authors to conclude that ‘constitutional contestation has been relatively muted.’Footnote 17 More methodically measuring Cambodia's legal system and legal politics against the standards laid out by Peerenboom, meanwhile, Lucy West has concluded that Cambodia fails to meet the minimum standards of ‘thin’ rule of law, attributing this failure to Cambodia's civil law system and neo-patrimonial political culture.Footnote 18 Shedding light on contemporary legal politics in Cambodia in such a stark manner, I argue, risks casting in shadow as much as it illuminates.
In order to effectively capture the everyday practices that actually animate Cambodia's constitutional order, I instead take the unconventional step of taking seriously the meanings that are assigned to the Constitution in everyday political life by the Cambodian government, the courts, and the ruling party. Doing so, however, requires a more flexible understanding of constitutionalism; one that is not only ‘disentangled’Footnote 19 from liberalism in order to capture the empirical reality of authoritarianism in Cambodia, but also extends beyond judicial and legislative processes to account for the discursive acts and the construction of meanings that legitimise their weaponization.Footnote 20 Through a fine-grained analysis of recent events in Cambodia, and public utterances by representatives of the Royal Government of Cambodia in particular, this article will demonstrate how the Constitution and the vocabulary of constitutionalism are in fact central to the CPP's current attempts to consolidate and legitimate its rule. First, however, it is necessary to examine how recent constitutional scholarship has sought to understand authoritarianism, as this provides a foundation for acknowledging the empirical fact that the Constitution – in Cambodia and elsewhere – is profoundly imbricated in the weaponization of law for authoritarian purposes. Then, turning to socio-legal theories developed in Myanmar, China, and Singapore, this article will demonstrate how and why this nexus of authoritarianism and constitutionalism is enabled and legitimated in everyday legal discourse.
Far from being unique to Cambodia, the tendency for scholarship to overlook the significance of constitutions to authoritarian regimes is commonplace. In part as a corrective to this oversight, then, Landau himself has elaborated an idea that he calls ‘abusive constitutionalism’. Defined as ‘the use of mechanisms of constitutional change to erode the democratic order’,Footnote 21 Landau's ‘abusive constitutionalism’ calls attention to the fact that use of constitutional means to pursue illiberal or anti-democratic ends is becoming ‘an increasingly routine occurrence’ throughout the world.Footnote 22 It is this sense of the routine, however, that is in some sense missing from Landau's analysis: focusing on ‘constitutional amendment and replacement’Footnote 23 as tools of the abusive constitutionalist, Landau's preoccupation with macro-level constitutional process means he overlooks a more mundane but nonetheless constitutional mechanism: interpretation and ordinary legislation.Footnote 24 In other words, while Landau accurately articulates how reform and replacement are ways by which a constitutional system may be turned against its own liberal democratic values, what he leaves unsaid is the way that constitutions may not need to be ‘substantially reworked’ to achieve those very same ends.Footnote 25 While Landau's work is helpful in its ability to highlight the centrality of constitutions to authoritarian projects, it is of limited utility for understanding this centrality in contexts where ‘abusive constitutionalism’ occurs at the level of everyday practice.
An attempt to reconcile the coexistence of constitutionalist ideas with authoritarian practices, meanwhile, has also been made by Mark Tushnet. This coexistence remains ‘an as yet under-examined’ phenomenon, Tushnet explains, largely because ‘legal scholars and political theorists interested in constitutionalism as a normative concept tend to dichotomize the subject’.Footnote 26 States, as a result, are either seen as practicing liberal constitutionalism, and therefore having a constitutional system worth studying, or are seen as lacking the practice altogether, and are therefore only of interest to scholars to the extent that their systems can be improved to emulate that liberal model. By comparison, Tushnet sketches out a topography of regime types and then proceeds to map onto those types a series of different categories of constitutionalism, amongst which ‘authoritarian constitutionalism’ is a prominent variant.Footnote 27 Of particular interest here is the fact that Tushnet characterizes authoritarian constitutionalism as ‘a constitutionalism that freely invokes standard justifications for restrictions on individual freedom’, and in so doing, implicitly acknowledges that authoritarian constitutional practices are often visible only at the micro-level of judicial and legislative processes.Footnote 28 Tushnet undoubtedly goes a step further than Landau in accounting for the constitutional character of otherwise routine authoritarian practices; however, his explication of ‘authoritarian constitutionalism’ pays little attention to the role that the everyday discursive acts that surround these practices might play in facilitating and legitimizing them. While Tushnet's notion of ‘authoritarian constitutionalism’ helpfully highlights the constitutional character of the weaponization of law in authoritarian contexts, it only begins to explain how and why constitutions and the language of constitutionalism is woven into this process.
To properly capture the complex dynamics involved here, it is helpful to engage some of the insights from the growing body of literature that studies authoritarianism from a law and society perspective. I posit that socio-legal approaches, particularly those that pay specific attention to discourse, can be particularly insightful for the study of authoritarian constitutionalism because they can shed light not only on the empirical fact of its practices, but also on the ideas and values that animate those practices. Two such values, which have already been identified as key components of authoritarianism by law and society scholarship, and which the data provided in this article suggests are also prevalent in Cambodia's state-led constitutional practices, are those of stability and law and order. The latter has long been considered an amiable companion to legal systems, and a legitimate – if not essential – part of any state-building project,Footnote 29 but has recently been problematized adeptly by Nick Cheesman. In his book Opposing the Rule of Law: How Myanmar's Courts Make Law and Order, Cheesman questions the often unconsciously assumed connection between the rule of law and law and order.Footnote 30 The latter, he argues, has often been subsumed within the former as international interest in rule of law projects has grown. However, the two concepts are actually asymmetrically opposed,Footnote 31 as the pursuit of law and order empowers the state to define and impose its own vision of public or social order in a way that is theoretically and practically antithetical to the rule of law.
Another closely related value which also features prominently in state-led constitutional discourse is that of social and political stability; an oft-overlooked concept in legal terms that has only recently attracted sustained scholarly attention through the work of Sarah Biddulph in the Chinese context. In The Stability Imperative, Biddulph explains how the Chinese Communist Party's (CCP) ‘obsession with social order and stability’ stems from a belief that ‘the Party-state's capacity to maintain social order is the basis for its legitimacy’ and, further, that ‘society has to be managed in order to be stable, with law providing the “framework and ground rules”’.Footnote 32 Much like the ‘law-and-order-ideal’ articulated by Cheesman with regard to Myanmar, the vision of stability that Biddulph describes in China is one in which order and peace are almost entirely dependent upon enforcement from above. While the concepts of ‘order’ and ‘stability’ are developed by the aforementioned authors with particular reference to the contexts in which they are studied, they are not applied here to Cambodia without reason; instead, they are selected by virtue of the fact that they have already been identified as key to the country's political discourse by scholars from other disciplines. This article, then, will explore the extent to which the tendency for ideas of stability and order elide with those of rule of law in Cambodia to enable and legitimize authoritarian constitutional practices in the eyes of Cambodia's ruling party. In so doing, this article tests whether, far from being merely a sham, Cambodia's Constitution – like many other such documents in authoritarian contexts – can be seen to be imbricated in the practice of authoritarianism.
IV. THE POLITICS OF STABILITY AND PUBLIC ORDER
Having won the 2013 General Election by its narrowest margin since 1993, the ruling Cambodian People's Party appeared increasingly anxious to reassert and consolidate the political dominance it had previously established. Following a short period immediately after the widely-contested results emerged – in which the government took a relatively relaxed attitude to public protests led by the Cambodian National Rescue Party only to violently crack down on them in January 2014 – the ruling party reverted to a technique of using legislative and judicial processes to silence critics and hamper the work of opposition politicians. The culmination of this approach came in 2017, when the ruling party pushed through two amendments to the Law on Political Parties in quick succession, which provided the basis for the dissolution of the CNRP by the Supreme Court that November. The complete dissolution of an opposition party that had previously won nearly forty-five per cent of the popular vote, and still held fifty-five of the 123 available seats in the National Assembly on 16 November 2017, was an unprecedented step that is no doubt interesting from a purely political perspective, not to mention – as will be explained over the course of the article – problematic from a doctrinal legal standpoint.
Rather than concentrating on electoral politics or doctrinal-legal perspectives, I focus on the extent to which the dissolution and the legislative changes that facilitated it, as well as the aforementioned jailing of opposition parliamentarians, was justified extensively in comparative legal and even constitutional terms by key figures in the government. I also show how those same figures frequently emphasized the role of law in ensuring order and stability in Cambodia, as they attempted to embed these specific cases within a broader project whereby the state has constructed a constitutional discourse that legitimizes authoritarian practices. While certainly not intending to confer legitimacy onto such interpretations, I suggest that they remain an understudied empirical phenomenon. Specifically, they demonstrate the extent to which even liberal democratic constitutions can be seen to be complicit in authoritarianism, and the extent to which the practice of authoritarianism in Cambodia seeks to simultaneously harness and undermine the normative power of constitutional principles. Taken together, then, these two case studies – which were the most prominent constitutional issues in Cambodia that fieldwork for this article was conducted on – are representative of longer-term trends in constitutional practice in Cambodia, and the extent to which these trends have escalated in intensity and visibility over recent years. As will be demonstrated below, for example, the suspension of parliamentary immunity for opposition MPs has been a consistent feature of Cambodia's political system since the Constitution was written in 1993, but came to increasing prominence as a legal issue in years building up to the 2018 general elections. Equally, the dissolution of the main opposition party less than a year before that election was selected for study as it was not only the most significant legal development in Cambodia's recent history, but it is also indicative of the wider extent to which law has become a preeminent means by which the ruling party maintains its hegemony.Footnote 33 As will become clear below, the data extrapolated from these cases demonstrates not only that authoritarian constitutionalism in Cambodia is pursued at the macro- as well as the micro- or everyday level of constitutional practice, but also that these practices – in Cambodia and elsewhere – are best understood within their own specific discursive contexts.
A. Undoing Article 80 on Parliamentary Immunity
Widely considered a central component of democratic process and political systems,Footnote 34 parliamentary immunity in Cambodia has had a chequered history under the country's present Constitution. This is not, it must be noted, due to a lack of constitutional recognition: Articles 80 and 104 of the Constitution protect parliamentarians from being ‘prosecuted, detained or arrested because of opinions expressed in the exercise of his/her duties’.Footnote 35 Two specific exceptions exist, however. These exceptions provide for, firstly, occasions where two-thirds of the members of a respective House vote to strip a parliamentarian of his or her immunity; and secondly, cases of flagrante delicto. Prior to the 2013 elections, of course, this proved little obstacle to the ruling party, as it frequently obtained the required votes in either House when needed. As such, constitutional procedure has over the years allowed for: the then Co-Minister of the Interior, You Hockry, to be charged with corruption and drug possession in 1996;Footnote 36 Princes Norodom Sirivudh and Ranariddh to be charged with treason in 1995 and 1997;Footnote 37 and Senator Serei Kosal to be charged with fraud.Footnote 38 Later, immunity was stripped to enable the then leader of the opposition, Sam Rainsy, to be charged with issuing false information in 2004 and for failure to pay a fine to the National Election Commission in 2009;Footnote 39 for MP Chan Cheng to be charged with collusion in a crime in 2011; and, on separate occasions, for MPs Chea Poch (2004),Footnote 40 Cheam Channy (2004),Footnote 41 Mu Sochua and Ho Vann (both 2009) to be charged with defamation.Footnote 42 Taken together, this history of cases suggests that parliamentary immunity in Cambodia, like many other constitutional protections, is a flexible and politically contingent phenomenon.
What perhaps makes the period since 2014 remarkable is the fact that the immunity of parliamentarians has, in certain circumstances, been lifted in spite of the fact that the ruling party did not have sufficient votes in the National Assembly. Admittedly, this has not been the case in the Senate, where the recently-resigned Senator Thak Lany's immunity was stripped by a two-thirds vote, paving the way for her to be convicted in absentia for defamation, having made comments suggesting that Prime Minister Hun Sen was responsible for the assassination of the prominent critic, Dr Kem Ley.Footnote 43 Similarly, Senator Hong Sok Hour was handed a seven-year sentence for incitement, having posted a video on social media questioning the validity of government maps used to demarcate a highly contentious section of the country's border with Vietnam.Footnote 44 However, in the cases of CNRP leader and MP Kem Sokha in June and September 2017,Footnote 45 as well as MPs Um Sam An,Footnote 46 Tok Vanchan and Pin Ratana,Footnote 47 arguments over immunity instead focused on the interpretation of Article 80's second exception to immunity, namely, the meaning of flagrante delicto. While Kem Sokha's arrest in September 2017, this time for treason, is the most notable example of the debate over flagrante delicto because it also precipitated the dissolution of the CNRP, it is worth noting how this line of argument was developed in earlier cases.
A striking early instance of the use of the flagrante delicto clause is that of Um Sam An. Arrested in the early hours of 10 April 2016, almost immediately after returning to the country, Um was officially charged with ‘forgery’, ‘incitement to commit a felony’, and ‘incitement to discriminate’, over maps he posted on social media that showed an alternative version of the highly contested border area between Cambodia and Vietnam. The case against Um was articulated publicly by a Ministry of Justice spokesperson, but then also by Prime Minister Hun Sen on 12 April, when he stated in characteristically bellicose fashion:
Don't say that you have immunity and they can't arrest you, because it was an obvious crime. It's an obvious crime, because it is incitement leading to disasters for the country. Now, at this hour, your [Facebook] page still talks about the fake maps.Footnote 48
Interestingly, we see not only a justification for the MP's arrest based on an argument about his statement's threat to social order, but also a dual justification for overriding his immunity. First, the Prime Minister put forward an understanding of the word ‘flagrant’ as meaning ‘obvious’, and secondly, there was an assertion that, because the MP's comments remained available online, the alleged crime was ongoing. While Um has continued to insist on the validity of his immunity, storming out of court on the first day of his trial, this was overruled by the presiding judge in the case. In fact, when finding Um guilty on 11 October 2016, Judge Heng Sokna's decision cited both the incendiary nature of his offence and justifying it as a case of flagrante delicto. ‘The activities of the defendant are an obvious crime,’ Judge Heng Sokna said, ‘because all the activities, such as writing, speaking and posting videos on Facebook, are still active.’Footnote 49
The case of Um, then, is a prime example of Cambodia's approach to the Constitution, and legality in general. First and foremost, we see the primacy of the government's own understanding of ‘order’. Looking beyond the guarantee of parliamentary immunity, the police and then the Ministry of Justice first had to decide that a crime had been committed. Here, the state's responsibility to ensure ‘public order’ was considered to override the constitutional guarantee of free expression. This, of course, highlights the extent to which many of the tools for ‘abusive’ or ‘authoritarian’ constitutional practices are already written into constitutions, in often vaguely worded limitations on rights which can be expanded through ordinary processes of legislation and judicial interpretation. Asked to reflect on the frequency with which ‘public order’ offences are cited as the reason for the arrests of political opponents or rights activists, a Ministry of Justice spokesperson was quick to point out that ambiguity over the meaning of ‘order’ is common not only in Cambodia. ‘So far, I can say we don't have a definition of public order. I don't think any country in the world clearly defines what is meant by public order. It depends on the government, and it depends on the law,’ he explained.Footnote 50 Public or social order, then, can be understood to be of particular use to the everyday practice of ‘authoritarian constitutionalism’ in Cambodia due to the perceived malleability of its meaning and the extent to which its definition is seen to be the responsibility of the state, not to mention the prominence of the concept in the Constitution itself.
Um's arrest and conviction is also a prime example of constitutional practice in Cambodia for a second reason. Specifically, in a novel interpretation of flagrante delicto, Um was considered to have been ‘caught in the act’ of committing the crime, as he refused to take down the series of posts, even after authorities had deemed them offensive. With the previously common procedural route to removing immunity blocked in a National Assembly where the CPP had less than a two-thirds majority after 2013, a technical, legalistic solution was found instead. While the malleability of legal language was again on display in the interpretation of flagrante delicto, it is also notable that the operative interpretation was first expressed publicly by political actors. It is unclear, and beyond the scope of this article to prove, whether the articulation of this particular interpretation of Article 80 in advance by the Prime Minister influenced the decision of Justice Heng Sokna.Footnote 51 However, this episode does illustrate the extent to which the pursuit of ‘authoritarian constitutionalism’ through judicial interpretation is itself also embedded within discursive practices that seek to facilitate and legitimize the weaponization of law. It should be noted, meanwhile, that a parallel case concerning CNRP MPs Tok Vanchan and Pin Ratana was dropped by the Ministry of Justice after the National Assembly's Standing Committee decided that their crime did not fall under the definition of flagrante delicto.Footnote 52 Occurring as it did amid what was evidently a concerted legal campaign against the opposition, it would be disingenuous to suggest that this latter case represented a purposeful commitment to liberal legality. Nevertheless, it is possible to see the difference between the cases as indicative of the fact that constitutional meaning and procedure might maintain a semblance of normative power, despite also being tools for ‘abusive’ or ‘authoritarian constitutionalism’.
B. Outlawing the Opposition
Debate about the limits of parliamentary immunity and the meaning of the flagrante delicto exception re-emerged again after the arrest of the remaining leader of the CNRP, Kem Sokha, on suspicion of treason. While the account of the history of the protection of parliamentary immunity in Cambodia since 1993 set out above clearly demonstrates that this was not an entirely ground-breaking event, it was unprecedented in several ways. Firstly, the severity of the crime for which Kem Sokha was arrested exceeds any of the crimes for which parliamentarians had been arrested in the post-UNTAC era.Footnote 53 Secondly, its timing – coming so shortly after the CNRP had won a record number of seats for an opposition party in a local election, and less than a year before a national election – made a particularly dramatic impact on the landscape of Cambodia's electoral politics. For media and civil society organizations – both domestic and international – as well as for several donor countries which publicly expressed concern (and later condemnation), the arrest was a flagrant violation of the rule of law and of Cambodia's already troubled democracy.Footnote 54
The arrest itself took place just days after a video recorded in 2013, in which Kem Sokha spoke to a Cambodian diaspora community in Australia about his longstanding relationship with the United States, as well as the advice and assistance he had received from US officials and donor institutions in his campaign to oppose the ruling party, resurfaced online. Interpreting this and his statements made to protestors during the aftermath of the 2013 elections as proof of an ongoing plot to overthrow the government, police arrested Kem Sokha in the early hours of 4 September 2017, with the MP's immunity being waived by the National Assembly – at the formal request of the Ministry of Justice – days later. Speaking to me in an interview at the time, a former legal advisor to the National Assembly and current spokesman for the CPP explained:
For Kem Sokha's case, it is also a flagrante delicto case, [because] he spoke in December 2013 in Australia about how he received orders from the United States. He arrogantly admitted that he is the person the US first trusted and gave a job to. This action is continuing until today; it has not ended. It's flagrante delicto.Footnote 55
Of course, questions about whether a video from almost three years prior could act as evidence of an ongoing crime were voiced by multiple human rights advocates and monitors.Footnote 56 However, the debate about Kem Sokha's immunity was quickly overshadowed once it became clear that the crime he was accused of would soon provide the pretext for the government to dissolve the Cambodian National Rescue Party entirely, which it did after a single, day-long hearing on 16 November of the same year.
Equally, while the flaws in the procedural and evidentiary basis for the dissolution of the CNRP are undoubtedly worthy of further elaboration and study, what is interesting for the understanding of ‘abusive’ constitutional practice in Cambodia is the extent to which this process was layered with trappings of legal legitimacy by the government, the CPP, and its political allies. As noted above, law has been a means through which the ruling party has asserted its hegemony in Cambodia by convicting individual opposition politicians; however, the outright dissolution of an opposition party was an unprecedented step which depended upon both legislative changes and an intensification of state-led rule of law discourse. As such, the CPP-dominated National Assembly drafted changes to the Law on Political Parties (and subsequent changes to the Law on Elected Members of the National Assembly) in February and June 2017. These amendments made the validity (and thus the registration) of political parties dependent upon them meeting a series of loosely defined conditions; including, most notably, that they not be led by or ‘conspire with a person convicted of felony or misdemeanour’; that they do not ‘affect the security of the state’ nor engage in ‘incitement that could break the national unity’; and that they remain independent of foreign influence or funding.Footnote 57 Finally, the failure to meet these provisions was made punishable by suspension or dissolution by the Supreme Court. The former provisions, especially those relating to convicted criminals, were called for explicitly and publicly by Prime Minister Hun Sen beforehand, when on 2 February 2017 he suggested that Cambodia adopt provisions from Article 68 of Thailand's already-defunct 2007 Constitution, stating: ‘I think we should follow Thailand. If one has committed a serious crime, the party must be dissolved so that one will not be so troublesome anymore.’Footnote 58 This provision, which was indeed enshrined into the Law on Political Parties later that month, led immediately to the resignation of the CNRP's co-president, Sam Rainsy, who had been convicted as an accomplice to Senator Hong Sok Hour's aforementioned crime of incitement and forgery. However, it is interesting that the call for legislative change was not only grounded in the suggestion that the opposition was being ‘troublesome’ but also in a comparative reference to constitutional law in Thailand, suggesting that techniques of ‘abusive constitutionalism’ – just like their liberal counterparts – can be the focus of transnational ‘borrowing.’Footnote 59 Similarly, this point draws additional attention to the fact that ‘abusive’ constitutional practices in Cambodia often occur at the level of legislative change rather than constitutional change.
The changes to the Law on Political Parties were also justified at the time of their passage, and afterwards, by multiple government institutions and spokespeople. However, far from drawing comparative examples from other nonliberal contexts, these frequently pointed to the existence of broadly similar laws in liberal democratic jurisdictions, as well as asserting an interest in upholding ‘rule of law.’ Upon passage of the draft law through the legislative branch, for example, the National Assembly and Senate released a joint statement explaining that the law's intended aim was to ensure ‘the rights, obligation and responsibility of every political party to guarantee proper respect according the constitution and the law.’Footnote 60 Meanwhile, after the passage of the law, the Ministry of Foreign Affairs defended it, declaring that the law ‘aims to protect the liberal, multi-party democratic system, the constitutional monarchy, and Cambodia's sovereignty.’Footnote 61 The justification, in this case, came in the form of a 10-page document which was overtly aimed at an international audience, being published in English.Footnote 62 Arguments from that document also appeared in a series of videos that were circulated online, produced and published by the Press Office of the Council of Ministers.Footnote 63
That the document, titled ‘To Tell The Truth’, was openly aimed at an international audience – as evidenced by the introduction, which accuses ‘foreign governments’ of instigating a ‘disinformation campaign’ against Cambodia – is hardly surprising, especially given that the document was put together by the Ministry of Foreign Affairs. What is interesting, however, is the extent to which the amendments to the Law on Political Parties were justified in comparative terms. Going beyond the Prime Minister's previous assertion that the law was based on the now-defunct Constitution of the Kingdom of Thailand 2007, the document made direct references to Western legal systems. Its authors cited provisions in the Danish and Portuguese constitutions that prohibit the incitement of violence by political parties; restrictions on foreign funding in the United Kingdom, Singapore, Australia, and the Federal Election Campaign Laws of the United States; as well as the Venice Commission's 1999 Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures.Footnote 64 Meanwhile, on a regional level, comparisons were also made to Indonesia's laws on ‘electoral crimes’, the ability of the Philippine Commission on Elections to refuse registration to political parties, and Malaysian laws that allow for the dissolution of parties that compromise ‘security…, public order or morality’. Such comparisons, as will be explained below, are deeply indicative of the ‘abusive’ or ‘authoritarian’ mode of constitutional practice in Cambodia. Specifically, by equating the formal text of the law with those of Western democracies, the Ministry of Foreign Affairs could present a seemingly convincing case for the legitimacy of the amendments. However, it is ultimately at the level of implementation, either by the administrative or the judicial organs of the state, that a law's authoritarian potential is manifested.Footnote 65
Admittedly, the document was written well in advance of the legal proceedings that led to the dissolution of the CNRP, and the remainder of the document focuses on explaining the government's suspension of parliamentary immunity and defending its human rights record more generally. Nevertheless, the explanation of the amendments to the Law on Political Parties appears, particularly in hindsight, to be a pre-emptive attempt at outlining the legal basis for, and therefore justifying, the Supreme Court's decision to dissolve the CNRP later the same year. Though it would be easy to dismiss the government's attempts to place the legislative changes within a rule-of-law discourse through the use of international comparisons as the obfuscatory rhetoric of ‘sham’ constitutionalism,Footnote 66 it is interesting to note the extent to which this discourse was also adopted by some of Cambodia's other, admittedly much smaller and more CPP-friendly, political parties. That the once-widely popular royalist opposition, FUNCINPEC, along with the Khmer Youth Party, were the parties that ultimately lodged a formal complaint against the CNRP with the Ministry of Interior goes some way to demonstrating this. However, the uptake of rule of law discourse by these parties was even more notable. When submitting their complaint on 1 October 2017, for example, FUNCINPEC released a statement citing Articles 6, 7, and 44 of the newly amended Law on Political Parties, and requesting the Supreme Court to consider dissolving the CNRP ‘in accordance with [the] principle of rule of law.’Footnote 67 It was ultimately in response to this request, which suggests that the ruling party's conception of rule of law may have been shared by other opposition parties that were in competition with the CNRP, that the Ministry of Interior filed a case with the Supreme Court.
Similarly, as they were being allocated the National Assembly seats vacated by the CNRP after the dissolution decision by the Supreme Court, a FUNCINPEC spokesman described the process as ‘very clean, legally speaking,’ noting that ‘you can accuse [that there is] only one party making the law, but it doesn't matter, the law is the law.’Footnote 68 Likewise, other parties benefiting from the redistribution of National Assembly seats also deferred to a perceived legal obligation. For example, the Khmer Economic Development Party argued that ‘if we do not accept or boycott the distribution of those seats, it means we are not respecting the rule of law.’Footnote 69 In both instances, we see the rule of law being understood neither as a principle of equality before the law, nor as a state of non-arbitrariness in the drafting or implementation of law, but instead as an obligation or compulsion – imposed from above – to follow or obey the law. Though clearly a deviation from the meaning traditionally assigned to rule of law, this understanding is reminiscent of that described by Nick Cheesman; namely, one in which rule of law discourse often elides with, and comes to represent, the exigencies of law and order. As such, while bearing many of the hallmarks of what Randall Peerenboom and others have characterised as a ‘thin’ rule of law, which entails merely a formalistic or even instrumentalist commitment to legal procedures, it may instead be helpful to understand Cambodia – like Myanmar and Singapore – in terms of competing ‘thick’ versions of rule of law.
As is typical of Supreme Court cases, and those of the lower courts in Cambodia, the 16 November 2017 decision to dissolve the CNRP, ban 118 of its members from political activity, and ultimately precipitate the removal of its elected officials from office was not officially made public. Neither, in fact, were any of the documents presented to the court made available for public examination. As such, a detailed analysis of the decision, or the basis on which it was officially made by the Court, cannot be adequately or fairly provided in this article. As noted in the introduction above, however, this limitation does not prevent an understanding of the significance of the decision from the perspective of public constitutional discourse. Most notably, for example, the day of the Supreme Court's decision also saw Prime Minister Hun Sen give an evening address to the nation, in which he called for calm in the wake of the CNRP's dissolution. Specifically, the Prime Minister appealed to the Cambodian people to ‘participate in implementing the Supreme Court's decision to continue safeguarding peace, political stability, security, social order, and rule of law in Cambodia’.Footnote 70 The dissolution, he continued, had been decided ‘in conformity with the Constitution.’ As such, in what would be the first of many attempts to justify the Supreme Court's decision to international and domestic audiences, the Prime Minister paid explicit deference both to the concept of rule of law and to the normative power of constitutional procedures, aligning the imperatives of stability and those of law and order.
Continuing in the same vein, the Ministry of Foreign Affairs released a second long-form English language document, and an accompanying video in Khmer in February 2018. Titled ‘Stability and Development First’, the document attempted to rebuff international criticism of the Supreme Court's decision and, at the same time, assert national ownership over the meaning and validity of constitutional principles and procedure. Describing the 1991 Paris Peace Accords, which first laid out the requirements for Cambodia's liberal democratic system, as an ‘imposition’ written by ‘Western authors’ who imagined a ‘pure and perfect democracy’ in Cambodia, the document presents this vision as being at odds with ‘the gradual quest for improving the well-being of its citizens.’Footnote 71 While a full explication of this dichotomy is beyond the scope of this article, it is strikingly relevant that the obstacles to democracy were largely presented as cultural barriers. Most notably, Cambodia is presented as being ill-equipped for democracy due to the population's low levels of education and pervasive, society-wide disregard for law. With regard to the latter, the document explains that:
politicians from the opposition are unable to express their opposing views through democratic means; the common understanding of the ‘rule of law’ remains weak; the basic principles underlying law and order are largely ignored.Footnote 72
The dissolution of the opposition, in other words, is directly and very intentionally aligned with the conflated imperatives of upholding public order and educating the public about the rule of law. In much the same way as Cheesman suggests that the rule of law is widely but mistakenly seen as dependent upon (and therefore intertwined with) law and order, Cambodia's state-led discourse conflates liberal democratic constitutionalism with a version of political stability that, at times, necessitates illiberal and anti-democratic practices. The careful construction of this discourse, I argue, was part of a conscious attempt to facilitate and legitimize the dissolution of the CNRP by the Supreme Court, and thus represents a key feature of constitutional practice in Cambodia.
V. CONCLUSION
The association of rule of law and the Constitution with the exigencies of law and order, not to mention stability, is not confined to the thinking of Cambodia's political leadership. In many of my interviews, a variety of respondents made this connection quite explicitly, regardless of their relation to the government or opinion of the ruling party. A young trainee lawyer at a Phnom Penh firm, for example, explained that ‘law plays an important role because when our country has law it creates order and stability’.Footnote 73 Meanwhile an NGO worker and land rights advocate similarly asserted that ‘firstly it is to keep peace and order in society, this is the role of the Constitution’.Footnote 74 This, of course, is not an uncommon role assigned to law, or even a constitution, especially in a country that has so recently experienced civil conflict. However, this understanding and approach to constitutional law seems also to be the foundation for the more top-down approach to ensuring order and stability taken by the ruling party. When discussing the status of human rights in the country, for instance, one local Director of Women's Affairs in Kandal province argued that there had been significant progress towards civil and political freedom, before noting: ‘This is according to the Constitution. It is also written to give the country rule of law; obey the law, receive peace and security. We [Cambodian citizens] receive freedom if we obey the Constitution.’Footnote 75 This was preceded, in fact, by an explanation of Cambodia's two decades of peace as a corollary of government policy, in which the respondent suggested the government had ‘clearly gone on the right track, meaning they … control the stability of the political situation and the general situation from village level to national level.’Footnote 76 As many other scholars have noted, then, Cambodia's recent experiences of political instability and conflict are often viewed as justifications or explanations for the persistence of authoritarian rule. What the above interviews suggest, especially alongside the data presented earlier in this article, however, is that these historical experiences also provide the basis for an understanding of constitutionalism that legitimizes the weaponization of law, as the Constitution and the rule of law (understood as synonymous with law and order) are seen as things that must be obeyed by ordinary citizens and political opponents before peace and stability can be bestowed upon them by the government.
Hence, rather than understanding the Constitution as a check on government power, or as the foundation of formal public institutions through which conflicting views and interests can be addressed, there emerged from these interviews a very different impression of the Constitution, and of law more generally. Multiple interviewees appear to share a perspective on constitutionalism and the law that views both as tools for the top-down control through the enforcement or imposition of order. Again, returning to Cheesman's work on rule of law, it is possible to see state-level constitutional practice in Cambodia as creating rather than flattening hierarchy, and doing so based on the facilitation and monopolization of coercive power by the state, rather than a limiting of that power. In other words, rather than ensuring that those in power are subject to the same limitations as citizens, and creating institutions through which political, social, or economic conflicts can be expressed and resolved, Cambodia's Constitution appears to be understood – at least by the ruling party – as one that instead limits the actions of the governed by enhancing the state's ability to define and then impose stability and order. The ‘abusive’ or ‘authoritarian’ strain of constitutionalism in Cambodia, in other words, is deferential to an ideology of law and order that, in Cheesman's words, ‘naturalizes a similar kind of order to police … one with an emphasis on exogenously imposed discipline.’Footnote 77 While this conclusion may seem somewhat particular to Cambodia – ignoring, obviously, that it draws on ideas developed in Myanmar – it does have wider significance for academic understandings of constitutionalism. Firstly, the above discussion demonstrates that, even in authoritarian contexts where such contestations are perceived to be ‘muted’,Footnote 78 there are often still complex constitutional dynamics at play. Secondly, it is evident that such dynamics can only begin to be understood when constitutions and constitutional practices are viewed in their socio-legal context, in which the discursive acts that surround constitutional processes can be understood to facilitate and legitimize them.
Likewise, it is also enlightening to understand the phenomenon of authoritarian constitutionalism with the help of insights provided by Sarah Biddulph in The Stability Imperative. Notably, Biddulph draws a distinction between ‘rigid’ and ‘resilient stability’: the former being based on a view of society as ‘inherently unstable and therefore in need of active state intervention’, as opposed to the latter, which ‘sees stability as being based on norms of justice and equity, or at least mitigating injustices’.Footnote 79 From this perspective, it is possible to see that the ‘imperative’ underlying state-led constitutional practice in Cambodia is largely associated with the former: a view of society as inherently chaotic and unruly, requiring the top-down enforcement of ‘order’ for it to function. On one level, of course, this understanding of society is again unsurprising, given Cambodia's tragic recent historical experiences of mass killing and civil war.Footnote 80 In fact, the relative lack of public participation in the drafting of the Constitution was explained by many international participants in the country's UN-sponsored transition in 1993 on the basis that a greater degree of public participation might have led to greater political instability.Footnote 81 It was of course far from inevitable that Cambodia's liberal, democratic Constitution would come to be understood as a guarantor of rigid stability characterized by law and order. Rather, this was a pragmatic and context-specific response to an opposition party that ultimately threatened the CPP's decades-old grip on power,Footnote 82 which the ruling party itself still claims is the only bulwark against a return to civil war in the country. It is nonetheless clear that the prominence of ideas of stability and order, both in the formal text of the Cambodian Constitution and in the historical context in which the document was written, may provide additional salience to interpretations of the Constitution that privilege a rigid idea of stability that is in turn conducive to authoritarian practices. Ideas of order and stability, in other words, may provide a hidden subtext for understanding the written Constitution. Such a conclusion, meanwhile, raises critical questions about the increasing tendency to embed constitution-making processes within peace processes and post-conflict transitional arrangements, as the resulting documents may implicitly lend themselves to interpretations that privilege stability over other, equally important constitutional principles.
The authoritarian strain of constitutional practice that ultimately appears to manifest in Cambodia, meanwhile, is characterized by what could be described as an inverting of the hierarchy of laws. While the Constitution remains largely untouched, despite significant shifts in the political and legal landscape, its normative meaning is shaped – or perhaps hollowed out – in the everyday practice of the state. This is achieved through the drafting of vaguely worded legislation that allows significant room for administrative or judicial discretion, and then through the construction of legal meanings and discourses that justify – or even demand – the use of this discretion for the pursuit or legitimation of authoritarian ends. To a large degree, this process is also made possible by the fact that Cambodia's Constitution, like many others, provides only vague commitments to relatively ambiguous and malleable concepts. This, one legal expert suggested during our interview, may well have been a purposeful strategy on the part of the ruling party:
If you look at our Constitution: yes, [there is a] a very democratic style. But the ones that drafted it are gone … They are gone but after that we can see that the ruling party is very clever because they change the constitutional concept by drafting legislation.Footnote 83
As a result, the same respondent went on to suggest, constitutional practice is shaped by legislation and, at an everyday level, by executive sub-decrees, ministry-level prakas (circulars), and even public statements by the Prime Minister, which clarify the way that legislation is to be interpreted and implemented at an administrative or judicial level. ‘Even what the Prime Minister says can become the law’, the expert explained, and ‘what he says about the Constitution even’.Footnote 84 This trend can be seen in the examples described above, as Prime Minister Hun Sen himself called for the arrest of specific MPs based on the concept of flagrante delicto, overriding their parliamentary immunity; further suggested that the Constitution allowed the dissolution of political parties, as in Thailand; and in fact predicted the dissolution of the CNRP.
The aforementioned data suggests that it is through the otherwise routine procedures of government, and the discursive acts that often surround those procedures, that ‘abusive’ or ‘authoritarian’ constitutionalism is manifested in Cambodia. These everyday processes, in turn, allow for the Constitution itself to continue to appear relatively untouched (and to some extent untouchable), while its normative content is quietly eroded from within. Further, it should be noted that this simultaneous veneration and erosion of Cambodia's Constitution by the ruling party appears to have led most scholars to dismiss the document as an irrelevance, or to describe constitutional contestation as ‘muted.’Footnote 85 Yet, a closer study of constitutional practice in Cambodia suggests that the document is actually animated by constant contestations over its meaning, as the ruling party seeks to develop, assert, and assure the hegemony of understandings of the Constitution that can facilitate the weaponization of law and, thus, the perpetuation of CPP rule. Finally, such findings are notable for multiple reasons. Firstly, the extent to which the Constitution's promises of liberalism, rights, and democracy have remained untouched, at least in formal terms, suggests those guarantees – and the Constitution more broadly – may enjoy a level of legitimacy that inhibits the kind of reform or replacement that is common in regimes that practice what Landau calls ‘abusive constitutionalism’. This, it seems, may well be a characteristic of ‘hybrid’ or ‘competitive authoritarian’ regimes, where ruling elites may have the ability to control existing institutions but may fear that they lack the legitimacy to completely reshape the system in their favour. Equally, while the absence of formal constitutional overhaul is also indicative of the fact that authoritarian constitutional practices can be pursued below the macro-level of constitutional reform or replacement through ordinary legislative and judicial processes, it is notable that these processes are themselves embedded within a constitutional discourse that legitimizes their weaponization. This final point, I argue, highlights the significance of socio-legal approaches to the study of ‘authoritarian constitutionalism’.
Clearly, Cambodia offers a unique opportunity to develop academic understandings of how constitutions function, albeit in a nonliberal context. While constitutional amendments have undoubtedly helped the ruling Cambodian People's Party to consolidate its hegemony by making legislative and judicial institutions more amenable to the influence of the executive, a focus on formal constitutional change (whether it be through reform or replacement) does not tell the entire story. Instead, the extent to which constitutional practice in Cambodia is ‘abusive’ can be more comprehensively understood when one considers the everyday practices of legislation, constitutional interpretation, and administration. It is in these arenas that the vagaries of constitutional language are refined and decided, or alternatively, where the normativity of constitutional provisions is neutralized, as the de facto inversion of the traditional hierarchy of laws enables the demands of rigid stability and law and order to become the operative paradigm for constitutional governance. However, this should not distract from the extent to which the tools of ‘abusive’ constitutionalism are themselves contained within constitutional texts; legislators and bureaucrats in Cambodia, Myanmar, or China have not invented the norms of order and stability, but have in fact drawn them directly from the relevant constitutional documents.
This article has demonstrated how constitutional provisions and procedures have been interpreted by the legislative and executive branches to facilitate and then legitimize a series of acts that, seen together, represent what many have described as a campaign of legal harassment against Cambodia's political opposition. While clearly undermining constitutional guarantees of democracy and the right to political participation, this campaign has nonetheless been conducted with a relatively consistent attention to constitutional procedure. More interestingly still, it has been conducted using the lexical tools provided by the Constitution, and with the protection rather than the destruction of legality – defined as rigid stability or law and order – as its central normative claim. In so doing, the ruling party has attempted to ‘hollow out’ the normative power that would otherwise be inherent to the wording of the Constitution. Creating a public discourse in which acts of questionable constitutionality – if not patent unconstitutionality – are presented as the ‘enforcement’ or even protection of the Constitution can be understood as an attempt to neutralize the document as a source of, or a vehicle for, opposition politics and public critique. What is particularly notable, finally, is that even in the case of Cambodia's most high-profile court case in recent memory, an undoubtedly ‘megapolitical’ case heard by the Supreme Court, much of the evidence and argumentation of the case were simultaneously presented to the public outside of the courtroom, by state and even non-state actors. Such findings not only call for greater attention to be paid to the Cambodian Constitution, and the role of constitutions in authoritarian contexts more generally; it also highlights the benefits accompanying a socio-legal approach to constitutionalism, and the need to attend to the significance of constitutions beyond the courts.
