Suparation power
The Separation of Power
Introduction:
Separation of power is one of the most important elements of liberal democracy. It refers to the division of power within the three branches of government- The Legislative, The Executive, and The Judiciary. The idea is that the member of one of these three branches can not be the member of the other two branches. Each of these three branches has role and obligation separately. For example, the legislative branch has the power to make law; the executive has the power to determine policy (within the limits allowed by the legislature’s laws) and to implement the laws. The Judiciary is the power to apply the law in resolving disputes and punish those who breach the law. This separation of power creating new concept that is check and balance. Each of the branches might eye each other jealously. If there was a reality separation of power, we would see the improvement, development, and straitening of each branch to protect against being dominated by the other branches and also the people can enjoyed with separation. The following we would discuss more deeply about the separation of power in Cambodia that defined by the constitution and in real practice. In addition we would discuss the concept check and balance defined by constitution and in real practice too. So let see together.
The description above focuses on the purest form the separation of power. In reality most countries can not follow the concept very well. Especially the developing countries or example:
The Legislative Branch:
It refers to the National Assembly and Senate. Although Article of the constitution state that all tree branches of the government shall be separated. Other articles (Ex Article 119) state differently. One person can be a member both the Royal Government and The National Assembly. For example, prim minister. Article 90- state that the National Assembly is the only an organ which has legislative power, and perform its duties as provided for the constitution and laws. This power shall not be transferable to any other organ or individual. This article added that the National Assembly shall approve administration account a adopt the law on the general amnesty; approve the nation budget, state planning, loans, financial contracts, and the creation, modification, and annulment of tax.
To check and balance between legislative branch and executive branch, article 96 state that the deputies has the right to put a motion against the Royal Government through the chairman of The National Assembly. The verbally or writing replies shall be given by one or several minister depending on the matter related to the accountability of one or several ministers within 7 days after the day when the question is received. This becomes a problem in real practice in Cambodia. Some of the executive member did not answer the questions and on the other hand the legislative branch has no power to punish them, because there was no specific article speaking about this punishment in the constitution. Most motion against the Royal government was raised by the deputies of opposite party rather then the deputy of rolling party. So it’s hard to say that legislative branch is separated from executive. Most of the deputies are the members of ruling party. Draft laws and decision of executive were approved by the legislative branch. It sounds like the executive suggested themselves to get approval from themselves. There was no much debate raised by deputies of one political party on any draft laws submitted by minister from the same party. These practices, the people, the owner of the power feel that executive branch are not representative of the people, but are representative for their party.
The Executive Branch:
The king is the head of state for life and shall reign, he shall not govern. So, he does not involve with the executive. Article 7 states that the executive is the council of ministers which refer to the Royal Government of Cambodia that shall be led by one prim minister assisted by deputy prim ministers, by state ministers, ministers, and state secretaries, as members. Each member of the Royal Government shall be individually responsible to the prim minister and legislative for his/ her own conduct (Article 121 new). There was no sign that the other two branches interfere the executive branch.
The Judiciary Branch:
Under article 128, and article 130, judicial power shall be an independent power and shall not grant to the legislative or executive branches. The Judiciary shall guarantee and uphold impartiality and protect the rights and freedoms of citizens. Under article 130, the king shall be the guarantor of the independence of the judiciary. The supreme council of Magistracy shall assist the king in this matter. It means that the king h as power to supervise the Judiciary and Magistracy council shall assist him to control the judiciary. But from 1993 till now the king has not done anything at all with judiciary. Therefore, the ministry of justice still controls the judiciary. For example we can see that in March 1998 the ministry of justice suspended three judges of the court of appeal because they dismissed an accused. According to article 133 state that judges shall not be dismissed. The supreme council of Magistracy shall take disciplinary actions against any delinquent judges. The action above of ministry of justice shows that judiciary is not independent; it was controlled by the executive. Actually under article 134 the king through the supreme council of the Magistracy h as the right to appoints any judges and prosecutors to all courts. The supreme council of Magistracy shall meet under the chairmanship o the president of the Supreme Court or the general prosecutor of the Supreme Court to decide on disciplinary actions against judges or prosecutor. The judiciary has not been allowed to be independent. The court does not function in an independent manner. For example when there was complaint from the opposition party member, the court seldom does on this matter, if the court does on this complaint it might take long time. If the prim minister or high ranking officer make a complaint of any other people that was not in the group of executive to the court today, the court do on this matter in the next day. So, close your eye and start consider whether the judiciary is independent.
Conclusion:
In a democratic society all powers belong to the people and these powers were exercised through the three branches, the legislative, the executive, and the judiciary. From all above description we clearly see that all the three branches has clear separation of power between each other. Even though, it was defined by the constitution that all the three branches must be independent from each other. These do not mean that all are bad for Cambodian people. Cambodia is on the way to go and improve.
Recommendations:
1. Prevent dictatorship from happening by limiting the mandate for prim minister. One person can hold position as a prim minister only for two mandates.
2. To ensure that one person can not have a membership more than one branch among the three branches. If one deputy has been chosen as a minister of the Royal Government, he/ she should resign from parliament.
3. There should be had more election, such as election for district chief, Province chief, election prim minister, and election for the member supreme council of Magistracy.
4. Political party especially the ruling party should stop appointing judges. They should respect the constitution article 134. The ruling party should make it possible for the king to do this work independently.
5. All member of the supreme council of Magistracy, members of constitutional council, judges, and prosecutors should not be a member of any parties. If they want to be a member of the party, they should resign from the judiciary or the legal authorities.
6. Police and armed force should not be the member of any parties. If they want, they should resign.
7. The law needs to be enforced in order to eliminate the rule of man and begin the rule of law.
8. Police reforms are emergency needed. All of the police officer should be trained for specific position.
9. All national institutions must be able to function without undue interference of powerful persons.
10. Armed forces must be neutral and function according to the principles recognized in the liberal democracies. Powerful personality or political party should not have any power over the armed force. All personnel of armed forced- from high to low must need to be trained.
11. Salary of officer, police, armed force, teacher, judge, executor, should be the start point to reduce corruption. If they have enough food, enough money to pay for their own selves and their children, they will think about the nation eagerly.
12. The interpretation of law must be done fairly without the impact of other people. It must be made only by the judiciary and the constitutional council.
13. The executive should stop making law by issuing decrees and sub-decrees should not be regarded as law. All branches should bear in mind that only the National Assembly has power of making the law.
