Constitutional Assistance in Post-Conflict Countries The UN ...

More documents

Recommendations

Info

Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtAssembly; (2) the drafting of the constitution; and (3)the adoption of the Constitution. The process did notinclude a nationwide civic education campaign onconstitutional issues or public consultation. Althoughparticipatory constitution-making is widely practicedtoday (see e.g., South Africa, Rwanda, Afghanistan),in 1993 the focus of the international community andpolitical elite was more on the final content of theconstitution as a way to create democratic governanceand on how the process could contribute to that goal.The broad timeline and structuring of theconstitutional process was as follows:April 1993:May 1993:June 1993:Sept. 1993:Political campaignConstituent Assembly electionsInauguration of ConstituentAssemblyPromulgation of newConstitutionThe sequencing of events was to include thedemobilization of seventy per cent of all forces beforethe end of the voter registration period. All armedforces were to be placed in cantonments after theelections, demobilized or absorbed into a nationalarmy. These efforts were unsuccessful and provedone of the greatest weaknesses of the process, as thepolitical campaigning and the elections in the endtook place with neither of the largest of the armedfactions—the Khmer Rouge forces or the CambodianPeople’s Party Forces—demobilized and the twosmaller parties only partly demobilized.On 7 April 1993, the political campaigningperiod began, although the Khmer Rouge had alreadyannounced that it would not participate, ostensiblybecause the political environment was not neutral.Despite high levels of violence and intimidation, theelectoral process continued. UNTAC organized itspolitical officers, military observers and civilian policeto attend the political rallies. Some areas of thecountry were off limits because of high security risks.Despite the risks, the Security Council on 20 May1993 agreed that security measures were sufficient andthat the elections should go ahead as planned, and togeneral relief the elections were largely peaceful.Moreover, close to 90 per cent of the registeredvoters turned out to vote.Nonetheless, the central objective of theParis Agreement—establishing a legitimategovernmental authority and constitutional orderthrough elections—began to unravel shortlythereafter. It was understood that the party that wonthe elections would form the government. Althoughthe National United Front for an Independent,Neutral, Peaceful and Cooperative Cambodia(FUNCINPEC) won, the Cambodian People’s Party(CPP) retained dominant military power, was firmlyentrenched at every level of government in much ofCambodia and was not willing to accept the results ofthe elections. Under threats of civil war, PrinceSihanouk brokered a power sharing arrangementbetween CPP and FUNCIPEC, resulting in co-PrimeMinisters.The 120 seats of the constituent assemblywere distributed as follows: FUNCINPEC (58), CPP(51), BLDP (10), MOLINAKA (1). A key faction inthe conflict, the Khmer Rouge, was not involved indrafting the constitution. The Constituent Assemblydid not have mechanisms for representation or inputfrom a broader set of stakeholders in society, such asyouth, women, and minorities, and hence was notinclusive in that sense. Women in particular werepoorly represented in the political parties, with onlyfive per cent of all candidates being women.There was no requirement in the Paris PeaceAccord that the public participate in the constitutionmakingprocess—other than to vote in the elections.Traditionally, this may have been consideredadequate, not only by political elites in Cambodia, butalso by the international community. This was not theposition taken by civil society, the media and thepublic, who wished to have input into the process butwere precluded because no mechanisms were in place.A coalition of 14 civil society groups calledPonleu Khmer formed to encourage public participationin the drafting of the new constitution. However,because the process did not incorporate mechanismsfor the public to participate and the drafting processwas so short, the coalition struggled to understandbasic issues of constitutionalism. xxv The coalitionrushed to translate other constitutions, share whatthey learned with other civil society members andmeet with as many nearby communities as possible todiscuss constitutional issues and consult with themabout their aspirations for the future constitution.11
Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtThe coalition shared the results of their consultationsand suggested human rights provisions but they didnot feel that their input was considered and werefrustrated by the lack of transparency with theprocess. xxviOn 14 June 2003, on the first day of theConstituent Assembly, Ponleu Khmer members,numbering in the thousands (many of them monksand nuns), gathered in front of the Assembly andrequested that Ponleu Khmer be granted observer statusto make the process of drafting the constitution moredemocratic. The group read a statement, whichunderscored that the constitution should be areflection of the will of the people. xxviiHowever they felt shut out from the processand just as in East Timor, the coalition wrote a letterto the SRSG stating the following:We have the right to ask all theelected representatives about what they aregoing to include in the constitution. Theyshould let us know openly what theirintentions are. The drawing up of theconstitution is not a secret thing. All citizenshave the right to know about what will bewritten in the constitution. The people havethe right to oppose what they think isinappropriate or should not be in theconstitution. xxviiiThe SRSG replied that they had a“democratic right to lobby the members of theConstituent Assembly and the political parties towhich they belong, on any matters of concern relatingto the Constitution,” but emphasized that it was theresponsibility of the Constituent Assembly to prepareand adopt the constitution. xxixHowever, from the outset, the process washighly secretive. Rules of procedure were introducedto the Constituent Assembly and they were voted onin secret, with no debate and no public tally of thevote on the rules. xxx These rules provided for theappointment of a twelve-member DraftingCommittee. The composition of the DraftingCommittee closely followed the results of theelections: FUNCINPEC (6), CPP (5) and BLDP (1).The Drafting Committee largely conducted its workin secret. Not only were drafts of the constitution notshared with the public but also they were also notshared with the full Constituent Assembly.Although the Drafting Committee didattempt to prepare a draft, it was leaders ofFUNCIPEC and CPP who each presented PrinceSihanouk with a draft for his approval. He chose themonarchist model prepared by a Frenchconstitutional expert. The press was reporting as earlyas 26 August 1993 that a consensus had been reachedto restore the monarchy. xxxi The ConstituentAssembly reviewed the draft selected by PrinceSihanouk and adopted it with little debate on 21September 1993 by a vote of 113 to 5, with 2abstentions. Approximately five days later, with theParis Agreement fulfilled, the SRSG departed thecountry.On the ten-year anniversary of the signing ofthe constitution, the former UNTAC translator forthe SRSG lamented that the government still lackedaccountability and there is no public participation ingovernment. Moreover, the people are ill informedabout their rights and responsibilities under theConstitution. xxxii Those that participated in thedrafting of the constitution and others in society feelthat although it initially brought a “sense of order andstability,” it did not live up to its potential, as much ofit was never implemented. xxxiii Those provisions thatwere to lead to greater participation of the people ingovernment and transparency have been ignored.One of these is the establishment of the NationalCongress as an annual meeting that was to raiseconcerns and be informed on matters of nationalinterest.The political elite’s lack of will to considerthe views of the public or even other members of theConstituent Assembly and the closed door debates onthe constitution established an antidemocraticprecedent; Cambodia’s National Assembly currentlyhas little or no contact with its constituency, genuinedeliberations on legislation do not occur and there islittle transparency in government.East Timor: A Missed PeacebuildingOpportunityThe broad structure of the East Timorprocess was similar to that of Cambodia. The tight12
Page 5 and 6: Constitutional Assistance in Post-C
Page 11: Constitutional Assistance in Post-C

Constitutional Assistance in Post-Conflict Countries The UN ...

Create successful ePaper yourself

Delete template?

Save as template?