KRAM DATED APRIL 8, 1998

ON THE ORGANISATION AND FUNCTIONING OF THE CONSTITUTIONNAL COUNCIL

 

N CS. RKM 0498.06

 We,

Preah Bat Samdech Preah Norodom Sihanouk,

King of the Kingdom of Cambodia

 

 

upon proposal of H.E. First Prime Minister and Samdech 2nd Prime Minister and of the Minister of Justice.

hereby promulgate the Law on the organization and functioning of the Constitutional Council adopted on 19 March 1998 by the National Assembly during the 8th session of its 1st legislative term, which whole content is as follows:

CHAPTER ONE

ORGANIZATION OF THE CONSTITUTIONNAL COUNCIL

 Article l.

This Law has for purpose to create and to determine the organization and the functioning of the Constitutional Council which has for competences to ensure the respect of the Constitution, to interpret the Constitution and laws, to examine and to rule on litigation related to the election of members of the National Assembly.

Article 2 .

The Constitutional Council shall be a neutral and independent institution in matters falling within its competence.

The Constitutional Council shall be composed of nine members appointed by Preah Reach Kret.

The mandate of members of Constitutional Council shall last for nine years.

Article 3:

Nine members of the Constitutional Council shall be chosen among high personalities being Khmer from birth, aged 45 years or over, and possessing a diploma of superior studies in the areas of law, administration, diplomacy or economy and having at least 15 years of professional experience.

Three members of the Constitutional Council shall be appointed by the King, three shall be appointed by the Superior Council of Magistrature, and three others shall be elected by the National Assembly at the absolute majority of its whole members.

This vote of the National Assembly can intervene in two rounds of ballot.

For the first mandate and where an absolute majority has not been obtained during the first round of ballot, the National Assembly shall proceed to a second round to come to a decision on the only five persons who obtained the greatest number of votes. This second round of ballot shall be undertaken at the relative majority. By decreasing order of votes, the first person shall be elected for 9 years, the second for 6 years and the third for 3 years.

For next mandates, where an absolute majority shall not have been obtained during the first round of ballot, a second round shall be undertaken to come to a decision on 2 persons. This second round of ballot shall be undertaken at the relative majority. In case of equality of votes, the oldest candidate shall be elected.

Each member susceptible to be elected by the National Assembly shall have to receive, as a preliminary, endorsement signatures of one tenth of whole members of the National Assembly. Each member of the National Assembly can support only one candidacy.

Article 4:

Every three years, three members shall be renewed, one designated by the King, one designated by the Superior Council of the Magistrature and one elected by the National Assembly.

The President of the Constitutional Council shall be elected every 3 years at the absolute majority of the totality of members of the Council, after the 3 new members took up their duties.

The former President of the Constitutional Council can be reelected.

The President of the Constitutional Council is appointed by Preah Reach Kret.

The President of the Constitutional Council has rank and prerogatives of the President of National Assembly.

Members of the Constitutional Council have rank and prerogatives of Vice-President of the National Assembly.

Article 5:

The function of member of the Constitutional Council is incompatible with those of member of the Government, member of the National Assembly , President, Vice-President of a political party, President or Vice-President of a trade-union and magistrate in office.

Members of the Constitutional Council may not exercise any other function or profession during their mandate.

A person appointed member of the Constitutional Council shall, before taking up his duty, provisionally resign of all functions and professions stipulated at the above paragraph.

The President of the Constitutional Council shall inform in writing all members of the Council exercising functions and professions stipulated above of the obligation to resign.

Members of the Constitutional Council shall retire from any businesses in which they have personal interest. The resignation or the dismissal shall be decided by the Constitutional Council with an absolute majority of the totality of its members.

Article 6:

It is provided to the replacement of members of the Constitutional Council 30 days at least before the normal expiration of their mandate.

In case of resignation, dismissal or death of a member, it is provided to a replacement within 30 days after the resignation, repeal or death, according to modes defined by the article 4.

Article 7:

Before entering in functions, members of the Constitutional Council take an oath.

Members of the Constitutional Council shall keep their deliberations and vote secret and shall express no opinion outside meetings of the Council.

Article 8:

Members of the Constitutional Council designated in replacement of these whose functions have come to an end before their normal term complete the mandate of these that they replace.

However, if this mandate has a duration equal or inferior to three years, these members can be appointed or elected for a new mandate.

Article 9:

A member of the Constitutional Council can resign simply by addressing a written request to the Constitutional Council.

Article 10:

The Constitutional Council can dismiss any member who violated dispositions of articles 5 and 7 of the present Law or who did not attend to over 3 consecutive meetings without informing in advance the Council, or any member being no longer able to fulfill its duties for physical or mental incapacity cause.

The decision of dismissal of any member of the Council shall be taken by a vote by 2/3 of votes of the whole members of the Council.

Members of the Constitutional Council who have been sentenced to imprisonment for felony or offense shall be automatically dismissed.

Article 11:

Members of the Constitutional Council shall not be liable to civil or penal sanctions for decisions taken while fulfilling their functions of members of the Council.

CHAPTER II

THE FUNCTIONING OF THE CONSTUTIONAL COUNCIL

Section 1

Common provisions

 Article 12:

The Constitutional Council shall determine its own internal rules.

The internal rules of the Council shall be voted at the majority of 2/3 of votes of its whole members.

It will be assisted by a General Secretariat. The organization and the functioning of the General Secretariat will be determined by Anukret.

Article 13:

The Constitutional Council shall have its own appropriations registered to the general budget of the State.

The President of the Constitutional Council shall be the person entitled to make payments on its behalf.

Article 14:

The Constitutional Council meets on convocation of its President or, in case of hindrance of the latter, on convocation of its oldest member.

Meetings of the Constitutional Council are valid only when at least 7 of its members participate.

Section 2

The competence of the Constitutional Council concerning the constitutionality of laws

Article 15:

The Constitutional Council is competent to ensure the respect of the Constitution and to interpret the Constitution and laws voted by the National Assembly in the framework of the control of constitutionality of laws.

Article 16:

Once voted and before their promulgation, organic laws, internal rules of the National Assembly and amendments to organic laws and to internal rules of the National Assembly shall be compulsorily submitted by the President of the National Assembly to the Constitutional Council, for control of their conformity to the Constitution.

Article 17:

The King, the President of the National Assembly , the Prime Minister or a tenth of members of National Assembly may submit to Constitutional Council all other laws voted by the National Assembly, before their promulgation,

Article 18:

A promulgated law may be submitted to the Constitutional Council for control of its constitutionality by the King, the President of the National Assembly, the Prime Minister, one tenth of members of the National Assembly or any jurisdiction.

Any citizen shall be entitled to raise the unconstitutionality of a law upon the Constitutional Council through the President of the National Assembly or members of National Assembly, as stipulated in the above paragraph.

Article 19:

A party to a trial, who considers that a law enforced by a court or a decision of an institution violates his fundamental rights and liberties, may raise the unconstitutionality of this Law upon the court.

The court, where it finds the request grounded, shall to submit the case to Supreme Court in within 10 days.

The Supreme Court shall examine and submit the law to the Constitutional Council in a maximum period of 15 days, except if request is judged inadmissible.

Article 20:

In the case where the Constitutional Council declares that the law includes a disposition which does not comply with the Constitution:

A. if this disposition is inseparable from the totality of the law, the law in its totality can not be neither promulgated nor applied.

B. if this disposition is separable from the remaining text, only dispositions which do not comply with the Constitution cannot be neither applied nor promulgated.

Article 21:

The Constitutional Council may summon all concerned person, susceptible to provide it information or documents relating to the case.

Any person and public or private institution has to respect and comply with convocations and requests of the Constitutional Council.

Article 22:

The Constitutional Council shall rule in writing within 30 days on any affair that has been submitted to it. In case of emergency this period is brought down to 8 days.

The appraisal of the conformity of a text to the Constitution shall be made on the report of a member designated to this end by the President of Constitutional Council.

Decisions of the Constitutional Council shall be taken at the absolute voice majority of the votes of its whole members. In case of equality of votes, the vote of the President shall be preponderant.

Decisions of the Council shall be grounded.

Article 23:

Decisions of the Constitutional Council shall be final and shall have res judicata vis a vis any power established by the Constitution.

Article 24:

Decisions of the Constitutional Council shall be conveyed to the King, to the President of the National Assembly, to the Prime Minister, to the President of the Supreme Court and shall be published in the Official Gazette.

The President of the National Assembly shall inform all members of National Assembly.

The Prime Minister shall inform all members of the Government.

The President of the Supreme Court shall inform the concerned court.

Section 3

The competence of the Constitutional Council concerning election of members of National Assembly

Article 25:

The Constitutional Council shall rule on litigation related to the election of National Assembly members.

Article 26:

The Constitutional Council shall examine and rule on:

  1. any complaint of a political party or a candidate who contests the decision of the National Electoral Committee to reject its recourse related to the candidacy or to the list of registered candidates. This complaint shall be lodged within 7 days from the date of reception of the letter of notification of the National Electoral Committee;
  2. any complaint of a person contesting the decision of the National Electoral Committee to reject its request for registration on the voters list. This complaint shall be lodged within 5 days from the reception of the letter of notification of the National Electoral Committee;
  3. all recourse formed by a person or his representative against a decision of reject of the national Committee of Elections related to the absence of the name, to the opposition against the registration of the name or to the upholding of the name in the voters list of an individual whose he estimates that does not comply with conditions fixed by the electoral law. This complaint shall be lodged within 5 days from the date of reception of the notification of reject of the National Electoral Committee.
    The Constitutional Council shall deal with the above cases within 10 days from the date of recourse receipt.
  4. All complaint of a political party contesting the refusal of its registration. This complaint shall be deposited within 5 days from the date of reception of the letter of notification of the Ministry of the Interior.

The Constitutional Council shall deal with the above case within 30 days from the date of reception of the recourse formed by the party concerned.

Article 27:

The Constitutional Council shall examine and rules on:

  1. any complaint directly formed by a person or a political party candidate to the election and who contests the results. This complaint shall be lodged within 72 hours from the provisional result proclamation.
  2. any complaint of a person or a political party who contests the decision of the national Committee to reject its recourse against the result of elections. This complaint shall be lodged within 48 hours from the date of notification of the National Electoral Committee.

The Constitutional Council shall deal with above cases in a maximum period of 20 days after the date of reception of the recourse.

Article 28:

All person or all political party contesting a decision of the National Electoral Committee or contesting results of elections shall lodge a written recourse to the Constitutional Council. This recourse has to specify:

  1. the name of plaintiff person or party,
  2. the entitlement of the plaintiff (as registered on voters list, as candidate or as representative of a political party),
  3. the name of the concerned constituency,
  4. the name of the person or the political party proclaimed elected and whose election is contested by a third person,
  5. all document or proof sustaining the recourse.

The Constitutional Council may discretionary grant a time extension of 5 days to the plaintiff person or political party so as to provide evidences.

The Constitutional Council may decide not to proceed to investigations if it estimates that the complaint does not fill conditions stipulated in this article.

All recourses lodged with the Constitutional Council are gratuitous.

Article 29:

Recourses shall have no suspensive effect. However, pending a final decision and when estimated necessary, the Constitutional Council may specifically order a provisional suspension of the result of the election of a member of National Assembly or a political party whose election has been contested. Such an order shall terminate upon the final decision of the Constitutional Council.

Article 30:

To carry out investigations on litigation related to elections of members of National Assembly, the Constitutional Council shall be subdivided in 3 groups. Each group shall be composed of three members, whose one from the contingent designated by the King, one from that of the Superior Council of the Magistrature and an other from that of the National Assembly.

Each member of these 3 groups shall be assigned according to a random selection presided over by the President of the Constitutional Council.

Article 31:

After receipt of a recourse, the President of the Constitutional Council shall delegate to a group the power to carry out investigations. This group shall immediately inform in writing the plaintiff and the person or the party whose election is contested and to inform them that they have ten days to appraise the complaint and evidences provided by plaintiffs as well as to prepare in writing their pleas of defense.

Article 32:

On receipt of reception of pleas of defense above mentioned or after expiration of a period of ten days and after having carried out investigations, the group having received delegation shall submit the result of its investigations as well as its opinion to the Constitutional Council gathered in plenary sitting. The Constitutional Council may ask to carry out supplementary investigations and may directly hear plaintiffs and defendants.

Article 33:

During investigations, Constitutional Council or one of its groups can proceed to all hearings on any subject, demand any documents and reports and to summon any person concerned by the election.

The Constitutional Council or one of its groups may appoint its own staff or all other person to assist in its investigations, notably to receive depositions under oath of witnesses. The report of witness declarations shall be preserved and held at the disposal of all parties.

If it appears to the person in charge of the investigation or to one of the members of a group that a witness feels a fear for his person, he may decide to hold secret, except for the Council, the name of this witness. Only the content of the deposition of the witness shall be accessible.

Article 34:

The Constitutional Council disposes of recourses related to the regularity of the election, the eligibility of a candidate to the election and the eligibility of a candidate proclaimed elected.

The Constitutional Council can confirm or invalidate decisions of the National Electoral Committee, to proclaim the nullity of the election that has been contested, or to proclaim the legality of the election of a candidate.

The Constitutional Council shall take its decision to the absolute majority of its whole members. The decision of the Council shall be grounded.

The decision of the Constitutional Council shall be final.

These decisions shall be notified to the King, to the National Assembly , to the Royal Government and shall be published in the Official Gazette.

Article 35:

The Constitutional Council shall have the right to set back to competent organs complaints that do not fall within its competence. 

CHAPTER III

PENALTIES

 Article 36:

Any person guilty of perjury or subornation of witnesses in the framework of investigations of the Constitutional Council, or any person who fails to respect decisions of the Council or who interferes with activities of the Constitutional Council shall be subjected to a prison term of 1 month to 1 year of prison and a fine of 100,000 to 600,000 riels, or one of the two sanctions.

Article 37:

Members of the Constitutional Council who do not respect dispositions of this law shall be subject to disciplinary sanctions, regardless to any criminal penalty. Disciplinary rules will be determined by internal rules of the Constitutional Council.

CHAPTER IV

TRANSITIONAL PROVISIONS

 Article 38:

For its first mandate, the Constitutional Council comprises 3 members designated for a term of 3 years, 3 others for a term of 6 years, 3 others for a term of 9 years.

The King shall appoint a member for 3 years, a member for 6 years, a member for 9 years. The Council superior of the Magistrature shall appoint a member for 3 years, a member for 6 years, a member for 9 years.

The National Meeting shall elect a member for 3 years, a member for 6 years, a member for 9 years.

Article 39:

The first convocation of the Constitutional Council shall be made within 7 days from the signature of the Preah Reach Kret appointing its members. The convocation and the precedence of the first meeting, which will elect the President of the Constitutional Council, shall be undertaken by the oldest of the present members.

CHAPTER V

FINAL PROVISIONS

 Article 40:

Any provision that is in conflict with the provisions of this law shall be abrogated.

Article 41:

This law shall be immediately promulgated.

 

This law has been adopted by the National Assembly of the Kingdom of Cambodia on March 19, 1998 during the session No. 8 of the first legislative term

Made in Phnom Penh the 23rd march 1998

The President of the National Assembly

Loy Sim Chheang