By Yin Sarom*
22 August 2011
Since it appeared in 1971, John Rawls's A Theory of Justice has become a classic and it has especially shared with American conservatives one fundamental principle: the inviolability of the individual. A "Theory of Justice" is a technical work aimed at professional philosophers, political scientists, and constitutional law specialists. Rawls aims to express an essential part of the common core of the democratic tradition--justice as fairness--and to provide an alternative to utilitarianism, which had dominated the Anglo-Saxon tradition of political thought since the nineteenth century. Rawls substitutes the ideal of the social contract as a more satisfactory account of the basic rights and liberties of citizens as free and equal persons. Advancing the ideas of Rousseau, Kant, Emerson, and Lincoln, Rawls's theory is as powerful today as it was when first published[1].
A Theory of Justice is known as "justice as fairness"[2] of John Rawls comprises two main principles of liberty and equality. First, Rawls believes that each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. That means the basic liberties of citizens are, roughly speaking, political liberty (i.e., to vote and run for office), freedom of speech and assembly, liberty of conscience, freedom of personal property; and freedom from arbitrary arrest. As basic liberties, they are inalienable: no government can amend, infringe or remove them from individuals—legal rights. Second, Rawls states that the equality is the component of justice as fairness establishing distributive justice. Rawls presents that "social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity." This principle maintains that "offices and positions" should be open to any individual, regardless of his or her social background, ethnicity or sex. It is stronger than formal equality of opportunity' in that Rawls argues that an individual should not only have the right to opportunities, but should have an effective equal chance as another of similar natural ability. And inequalities are permitted only if it works to the benefits of the least advantaged members of society. [3]
Reflecting the above John Rawls's A Theory of Justice to Cambodia’s existing supreme law, it’s clear that liberty or basic rights and obligations, and equality are guaranteed.[4] Principles of educational freedom and equality to ensure that all citizens have equal opportunity to earn a living, receive equal pay for equal work, the right to vote and to stand as candidates for the election are fundamentally safeguarded. [5] Among other, key international human rights law to which Cambodia is a party, namely: the International Covenant on Civil and Political Rights (ICCRP) was partly influenced by John Rawls’s theory of justice. Hence given the contents enshrined in Articles 31, 36, 44, 66 and 76 of the Cambodian Constitution, it is correct to conclude that John Rawls’s theory of justice is clearly expressed in Cambodia’s supreme law. Although, the provisions to some extents are considered as narrowing, broadening and inconsistent to scope and meaning expressed in international law, ICCPR.[6]
Since democratization process incepted in 1993, Cambodia has relatively enjoyed peace, political stability and economic development, and reintegrated to regional and international communities. As provided by law, Cambodian citizens have also enjoyed both their civil and political rights. However with notable progress made, challenges are also being faced especially concerning the political rights and property rights. Some of these challenges are contrary to the Cambodian constitution and John Rawls's A Theory of Justice. For instance, according to the recent findings of a study into land conflicts, 223 land conflicts have been reported on in Cambodia since 2007. These cases affect at least 5% of Cambodia’s total land area of 181,035 square Kilometers, and Phnom Penh has the highest number of land conflicts.[7] At the same time, the violations of citizen’s rights resulting from land conflicts were widely reported as well. Excessive armed police clashed with villagers in Kampong Speu in June 2001 which ten people were seriously injured. Whereas peaceful Beoung Kak lake protesters were beaten and arrested by armed anti-riot police and military police officers in Phnom Penh.[8] These few cases mentioned, if not properly solved, can potentially cause social injustice which might lead to anger, greed and disharmony. The right to confiscate properties from any person shall be exercised only in the public interest as provided for under the law and shall require fair and just compensation in advance.[9]
When liberty or basic rights and equal opportunity are respected and recognized as legal rights and guaranteed by the supreme law—Constitution, therefore they are absolutely protected and cannot be subject to abuses. As mentioned early, American individual liberties and democracy were influenced by John Rawls's A Theory of Justice and Cambodia has optimism as it has fundamentally embodied this powerful legal theory into its supreme law. For decades, Cambodian citizens have pursued justice and fairness to be prevailed in their society but the full realization remains to be seen as the application process for this young democracy faces challenges along the way.
*YIN Sarom is an LL.D Student at PUC, he can be reached at yinsarom@gmail.com
Disclaimer: The view points from the articles posted in this academic forum do not reflect the the opinions or ideas provided by the Nokor Khmer. They are genuinely the opinions of the article author.
Reference
1. John Rawls, A Theory of Justice: Revised Edition (Belknap), 1999
2. Phillip Schuchman, Readings in Jurisprudence and Legal Philosophy, 1979
3. Cambodian Yearbook of Comparative Legal Studies, Volume 1, 2010
4. Cambodian Center for Human Rights, www.sithi.org
5. Press Releases, Cambodian League for the Promotion and Defense of Human Rights (LICADHO), www.licadho.org
[1] John Rawls, A Theory of Justice: Revised Edition (Belknap), 1999, Abstract
[2] Phillip Schuchman, Readings in Jurisprudence and Legal Philosophy, 1979, p.1004
[3] Ibid. 1979, p.1007
[4] The Constitution of the Kingdom of Cambodia, Article 31
[5] Ibid. Article 34, 36, 66, 76
[6] Cambodian Yearbook of Comparative Legal Studies, Volume 1, 2010, p. 134
[7] Cambodian Center for Human Rights, www.sithi.org
[8] Press Releases, Cambodian League for the Promotion and Defense of Human Rights (LICADHO), www.licadho.org
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