Authoritarian Constitutional Borrowing and Convergence in Cambodia.

AuthorLawrence, Benjamin

The weaponization of law, even of the Constitution, by the ruling Cambodian People's Party (CPP) is far from a new phenomenon in Cambodia. Since the country's purported "triple transition" was formalized in a largely liberal-democratic Constitution in 1993, (q) the CPP's political rivals have frequently been forced to defend themselves before Cambodia's politically pliant courts, with little success. (2) This, coupled with the judiciary's persistent corruption (3) and chronic lack of resources and capacity, (4) has caused Cambodia to routinely appear at the lower end of the rule of law league tables. (5) It has also been dismissed as a country failing to meet even the minimum standards of a "thin" rule of law. (6) As I explain elsewhere, (7) what has long been characterized as the absence of a culture of constitutionalism in Cambodia can be better understood as a pervasive and persistent practice of authoritarian constitutionalism. This authoritarian constitutional practice has notably accelerated in recent years as the CPP seeks to re-consolidate its rule in the face of resurgent opposition politics. (8)

A key feature in the acceleration of authoritarian constitutional practice in Cambodia is the CPP's increasing willingness to borrow constitutional provisions and practices from other authoritarian regimes. This trend appears to have supplemented--rather than supplanted--the practice of borrowing from liberal democratic models in the West that characterized much of the legal and constitutional change that occurred in the early days of post-conflict Cambodia. (9) While this change is significant, it is more a change in form than substance. Indeed, past and present borrowings from the West have mostly been pursued with an "a-contextual" and "anti-purposive" intent that has actually undermined the liberal and democratic character of the legislative or constitutional models being borrowed. (10)

Cambodia's new trend of "abusive constitutional borrowing" is reflected not only in formal constitutional amendments but also in legislative and institutional changes. These latter changes directly impact on constitutional practice, which involves "the acts of drafting, debating, implementing and invoking constitutional law". (11) While macro-level amendments to the actual wording of Cambodia's Constitution have been relatively rare in the document's short history, legislation and administrative or judicial decisions have been a far more common vehicle for the ruling party to assert its control over Cambodia's constitutional order since 1993. This article highlights four notable examples of "abusive constitutional borrowing" that have had an impact on Cambodia's constitutional practices since 2017: first, the two 2018 amendments to the Law on Political Parties that were explicitly identified by Prime Minister Hun Sen as borrowed from Thailand's 2008 Constitution; second, amendments to the Criminal Code that introduced the crime of lese majeste; third, a contemporaneous set of amendments to the formal text of the Constitution, in which Article 49 is of particular interest because of its resemblance to provisions in China's Constitution; and fourth, the creation of the Supreme Council for Consultation and Recommendation, which has marked similarities in function and form to China's People's Political Consultative Conference. Of these four examples, only one is a formal constitutional amendment. The remaining three examples involve two ordinary legislative changes and one institutional innovation.

In order to elucidate this new trend in constitutional practice in Cambodia, this article employs a combination of methods. While close, comparative reading of the legal contexts involved in each above-mentioned example forms the foundation of this article, this analysis is supplemented by additional attention to the social and political context in which those examples emerge. Here, I rely on a combination of newspaper reporting and the public statements of government officials regarding each of the four examples. This is supplemented by data gathered from my own fieldwork in Cambodia, which spanned two years from 2016 to 2018 and involved 45 formal interviews and countless off-the-record conversations with senior government officials and advisors, former and current lawmakers, and numerous independent legal experts. The result is an empirically grounded, socio-legal analysis of constitutional practice in Cambodia that highlights, through the four examples cited above, the extent to which the CPP's consolidation of power has been expressed in the form of constitutional borrowings.

Rather than focusing on legal doctrine or assessing the constitutionality of recent events, this article highlights the social and political significance of legal--and particularly constitutional--developments in Cambodia. In other words, this article follows the spirit of law and society scholarship in viewing changes to the constitutional order not only as interesting legal phenomena, but also as manifestations of broader socio-political shifts in Cambodia. In the case of Cambodia, the borrowing of authoritarian constitutional practices has enabled the shift from competitive to hegemonic authoritarianism; that is, from a situation in which "the coexistence of meaningful democratic institutions and serious incumbent abuse yields electoral competition that is real but unfair" to one in which the ruling party's dominance is assured by the pre-empting of genuinely pluralistic and competitive political processes. (12) While the CPP's continued political dominance is underwritten by its monopoly on coercive power and its leadership's willingness to use all the means available to them, (13) the weaponization of law can be seen as part of the party's transition towards the increasing use of tactics that "appeal to liberal ideas about the sovereignty of law", in pursuit of what Lee Morgenbesser has described as "sophisticated authoritarianism". (14)

This article starts by providing an overview of two distinct but complimentary bodies of literature: first, the growing body of work--largely in political science--on the topic of authoritarian learning, and second, the more disparate work in legal studies that is trying to map and understand the way authoritarian constitutional norms are diffused and borrowed. After tying together these two strands of literature, their lessons are woven throughout the subsequent empirical discussion of the four case studies: the 2017 amendments to the Law on Political Parties, the introduction of lese majeste to the Criminal Code, the contemporaneous amendments to Articles 34, 43, 49 and 53 of the Constitution, and the establishment and functioning of the Supreme Council for Consultation and Recommendation. Finally, the article discusses these four cases of constitutional borrowing in the broader context of constitutional practice in Cambodia, comparing them to other examples of legal borrowing in order to highlight both their sense of novelty and familiarity.

Authoritarian Learning and Constitutional Convergence

In much the same way that the "third wave" of democratization at the end of the Cold War prompted the literature on democratization to blossom, the more recent realization that many democratic transitions have either stalled or reversed has led to more attention to the study of authoritarianism. (15) Meanwhile, as Julia Bader explains, "discussions about the external determinants of regime type display a long-standing bias toward democracy". (16) This bias is currently being redressed by the increasing interest in authoritarianism in general, and the notion of "authoritarian cooperation" in particularly. (17) The work that has emerged, however, tends to focus on global "black knights" such as Russia and China, (18) and the role of such large and influential authoritarian regimes in supporting, legitimizing and protecting other authoritarian states around the world. (19) At the same time, a separate subset of literature focusing on "authoritarian learning" has also emerged which examines the extent to which authoritarian regimes around the world are learning techniques and strategies of governance or legitimation from one another, either through direct interaction or distant observation. While recent accounts of Cambodian politics have generally focused on China as a "black knight" that functions as a contributing, if not causational, factor in Cambodia's "descent into outright dictatorship", (20) there has been little attention paid to the extent to which the CPP's techniques of authoritarian governance might also be the result of authoritarian learning.

The lack of attention to possible processes of authoritarian learning in Cambodia is understandable. Scholars of the subject frequently note the difficulty of empirically proving instances of direct "learning", even at the best of times. As Bertram Lang explains, the lack of transparency in authoritarian contexts means that "transfer processes often remain a 'black box' empirically, with analyses focusing mostly on [the] output convergence between regimes". (21) As such, scholarship has tended to focus on theorizing and topologizing the phenomenon of authoritarian learning, rather than documenting it empirically. (22)

A relatively sophisticated framework has thus emerged, which broadly classifies the types of interactions between authoritarian regimes into four categories: namely, "diffusion, learning, collaboration and support". (23) Within the specific category of "authoritarian learning", scholars have identified both direct and indirect learning processes. Direct learning involves a regime consciously seeking knowledge and/or strategies from another, while indirect learning happens when a regime studies the experiences and strategies of others from a distance. Moreover, these direct and indirect learning processes can come in the form of either positive...

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