Both houses of the Parliament have started in earnest the year 2001 as they were
working hard and very fast to enact three long-awaited pieces of legislation: the
Khmer Rouge trial law, the commune administration law and the commune election law.
Their performance was much appreciated, and they went into recess well contented.
It has not been quite so, though. The Khmer Rouge trial law has attracted widespread
criticisms, and after some minor objections from the Constitutional Council has now
headed back where it had started. As to the enactment of the other two laws, the
Government and the Parliament have ignored all requests for changes and bulldozed
their way to have them adopted as proposed by the Government.
One such unmet request was submitted by the three election monitoring coalitions,
the Committee for Free and Fair Elections in Cambodia (COMFREL), the Coalition for
Free and Fair Elections (COFFEL) and the Neutral and Impartial Committee for Free
Elections in Cambodia (NICFEC). During the 1998 general elections these three organizations
had been working hard and well to earn worldwide credibility as independent, competent
and credible election monitoring organizations. Actually, they were the only ones
officially recognised to monitor the 1998 elections.
Now COMFREL, COFFEL and NICFEC did not like the idea of having a committee for the
coordination of NGOs monitoring the commune elections as provided for in the draft
legislation. This committee is to be attached to the National Election Commission
(NEC) which will in effect have the final say on the monitoring of the elections.
The three coalitions requested the removal of the provisions for the creation of
that committee from the legislation. They have stated that they would not join that
committee and wish to preserve the right to monitor the elections as independent
election monitoring organisations in cooperation with the NEC.
By adopting such a position, the three election monitoring coalitions have caused
a stir and have now been seen as "boycotting" the commune elections. Prime
Minister Hun Sen confronted them with derisive remarks: Those coalitions were the
creation of four or five persons only and then they pretended to determine the destiny
of the nation in place of the National Assembly and the Senate who had been duly
elected by the people. They arbitrarily wanted to make laws this way or that way.
They wanted the first-past-the-post system of election, not the proportional representation.
He further said that whether they wanted to participate or not, it is up to them.
Now that the law had been passed "we cannot wait; we have not invited you; regardless
whether you come or not, the government will proceed with the elections anyway."
For his part, the President of the National Assembly, Prince Norodom Ranariddh, expressed
disappointment with the position of the three election monitoring coalitons and saw
it as a "threat" to the supreme democratic institution which represents
the opinion of the people of the whole country.
The position of the three coalitions has caused concern within the donor community.
Efforts have now been made to prod them into participating in that Coordinating Committee
of Election Monitoring NGOs (CCEMNGO) now that "the law has been adopted and
cannot be changed". The three coalitions have held stead fastly to their position.
They have put forth a number of arguments in support of their position.
First, their independence would be put in jeopardy when they participate in the CCEMNGO
as they will in effect be placed under the control of the NEC which fixes, or has
a final say over, the rules and regulations for the election of the members of the
CCEMNGO, and for the accreditation of election monitoring NGOs and their deployment
across the country. They have shown particular concern over the channeling of funds
for monitoring through, and the control of these funds by, the CCEMNGO and finally
by the NEC itself. Such channeling and control would jeopardize their independence
and finally their credibility. Without independence and credibility their raison
d'être simply disappears.
Secondly, the NEC is in control of the CCÉMNGO. This means in effect that
it organizes the elections and monitors them at the same time. These two functions
are incompatible, and must be carried out by two separate bodies, one organizing
and the other monitoring, in order to lend credibility to the elections.
The three coalitions have made it crystal clear they wish to participate in the electoral
process as monitors and have no intention to "boycott" it or stay out as
has been charged. But they want to participate as independent monitors as they had
been doing during the 1998 general elections.
The two Cambodian leaders seem to have overreacted to their position. It is bad governance
when top leaders take up all issues and address them themselves. Their decisions
or even statements such as the ones mentioned above are deemed final. There would
be no room for lower ranking leaders to address the issues and reach different conclusions
or solutions. Top leaders should act more as arbiters or decision makers of last
resort whenever their subordinates could not reach any agreement or cannot resolve
conflicts. The case of the three coalitions could and should have been dealt with
in the first place by the NEC and then by the Ministry of Interior before going to
the Prime Minister and the President of the National Assembly.
Cambodia does need foreign assistance in the organization of the commune elections
and in other efforts. It does need to speed up the electoral process to materialize
the Government's long-standing decentralization policy. But donor officials do not
seem to have thought through their pressure on the three election monitoring coalitions.
Both the Cambodian top leaders and donor officials, when they resorted to the commune
election law to coerce the three coalitions to participate in the CCEMNGO without
considering the rationale of that law, may inadvertently help establish the rule
by law instead of the rule of law in Cambodia. And this could be very dangerous indeed
as the Khmer Rouge also had their laws.
Is there any rationale or raison d'être at all behind the creation of CCEMNGO?
At the 1998 general elections there was no such creature and yet the three coalitions
were recognized as the only credible independent election monitoring NGOs in the
country. Their performance has not been questioned ever since. Why not continue the
same way as before, now that that way was good already ? Why change it ? What for?
Would they perform better? Why deny those coalitions their freedom of choice to join
or not to join, their right to participate in the forthcoming electoral process as
independent monitoring organizations and to receive direct funding from donors? Great
rulers are proud to rule over independent and free people.
As to the NEC, first, it has already a "representative" of NGOs as a member
already. It should not need CCEMNGO at all. It is a duplication of work, at least
Secondly, the NEC should devote itself to and concentrate its efforts on organizing
and solving conflicts that arise during the electoral process. Indeed it was much
praised for its performance in the organization of the 1998 elections. But its shine
was quickly dimmed when it was unable to resolve election conflicts that eventually
led to prolonged demonstrations against the election results and against the regime
of the day. Demonstrators as well as the reputation of the NEC leader came out very
badly bruised in the end. The NEC should devote itself to correcting these weaknesses
instead of spreading itself thin to cover the monitoring.
Thirdly, the NEC, however much money it needs for itself, should not be so selfish
vis-à- vis the independent election monitoring NGOs and should support their
search for funds for their work. After all both organizers and monitors should cooperate
to achieve a common objective, that is, credible elections.
If a law has no rationale behind it, it is not really a law under the rule of law.
It is simply an arbitrary order with a parliamentary rubber stamp. It should be repealed
or amended. Furthermore, if its enforcement encounters so many practical difficulties
or violates some deeply held principles, this enforcement should be suspended. Such
practices have been done in democratic countries. Such a law is not sacrosanct. After
all how many bona fide laws are being fully enforced in Cambodia? Simply look at
the traffic law !
The three election monitoring coalitions like other NGOs are powerless vis-à-vis
the Government, the Parliament or donors. But no civilized man would side with the
great against the powerless.