Acting Head of State may be able to declare emergency

Senior officials said yesterday Acting Head of State Say Chhum is not only able to sign the “State of Emergency” draft into law but also declare an emergency while King Norodom Sihamoni is absent from the Kingdom.

While the King is away in China for a medical check-up and treatment, the draft law has been sent to the Royal Palace awaiting his consent. The draft law was unanimously approved without change by the Constitutional Council of Cambodia on Monday following unanimous approval by both legislative bodies.

Justice Ministry spokesman Chin Malin said yesterday the Acting Head of State would sign the draft law soon instead of the King for it to become legislation.

“The Constitution states that the Acting Head of State can fulfill any function when the Head of State is absent,” he said.

According to a senior palace official, King Sihamoni will not be able to return to the country anytime soon. This leaves the draft in the Mr Chhum’s hands.

“Article 22 new” of the Constitution states: “When the nation faces danger, the King shall proclaim to the people, putting the country in a state of emergency after agreement with the Prime Minister and the President of the National Assembly and President of the Senate.”

But it does not cover a situation in case the King is away from the country which raises the question of who can declare a state of emergency since King Sihamoni is still in China.

Some senior officials say this can still be done if the King delegates the power to declare a state of emergency.

Sok Eysan, a senator and CPP spokesman, said yesterday although “Article 22 new” of the Constitution does not mention about the power of the “Acting Head of State” to declare a State of Emergency, he believes there exists a way if the need arises.

He cited “Article 28 new” of the Constitution amended in 1999 which states: “The King shall sign the law promulgating the Constitution; laws adopted by the National Assembly and laws completely reviewed by the Senate and shall sign the Royal decree presented by the Council of Ministers.”

“In the case that the King has a serious illness and is hospitalised abroad, the King has the right to delegate the power of signing of the above laws and royal decrees to the Acing Head of State through delegating writs.” the law adds.

Mr Eysan said based on this Article the King could delegate the power of signing of a royal decree to declare the “State of Emergency” to the Acting Head of State.

“His Majesty, the King needs to send a signed letter to delegate the power to the Acting Head of State to sign the royal decree [to declare the State of Emergency] instead,” he said. “Based on what I know, one letter is effective only once.”

He said the Acting Head of State could not use the King’s letter to delegate the power for a second time and the King will need to sign another letter.

“The thing is not easy, that is why we need to conduct in-depth consultations before doing it,” he added.

Oum Daravuth, an adviser to the Queen Mother’s secretariat said on Monday that the content of the Constitution which mentions about the state of emergency is very general and that is why the government needed to draft a specific law.

Mr Daravuth agreed with Mr Eysan, saying the acting Head of State could declare a “State of Emergency”.

Asked by a reporter during a previous press conference to explain the legal procedures and whether the “acting head of state” will be able to declare a state of emergency instead of the King, Prime Minister Mr Hun Sen said only the Constitutional Council can interpret the law.

But he believes the Acting Head of State is not authorised to declare a State of Emergency instead of the King.

Mr Hun Sen said only the King can put the country in a state of emergency after agreement with the Prime Minister and the Presidents of the legislative bodies.

CCC Secretary-General Taing Ratana said on Monday repeatedly said the council could not provide any interpretation unless an official request is made by the Prime Minister, Senate President or National Assembly President.

Legal expert Sok Sam Oeun said yesterday that the power to declare a “State of Emergency” should be only for the King if he was not in serious illness, saying it was the most important thing for Cambodia.

However, he said “Article 11 new” of the Constitution also mentions that in case the King cannot perform his normal duties as Head of State owing to a serious illness, as certified by doctors chosen by the presidents of legislative bodies and the Prime Minister, the president of the Senate or Asembly shall perform the duties of Head of the state as “Regent”.

“In my personal opinion, I wish to see the King declare [State of Emergency] by himself because it is very serious except if the King has a serious illness,” Mr Sam Oeun said.

He said in case the King could not return to the King in time, officials could bring the documents for him to sign while he is abroad or do it online with his agreement.

“The state of emergency is a special case because it involves the prohibition and restriction of people’s rights and also changes the regime of the country from a liberal democracy to a martial one ,” Mr Sam Oeun added.

He said urged the government to conduct in-depth consultation before putting the country in a “State of Emergency”.