A MATHEMATICAL formula used to determine seat allocation
in the next National Assembly has become the fulcrum of a
messy argument between the opposition and the National
Election Committee, with each side claiming a different
variant is the correct one.
The debate has torn through the NEC - which ceased work
on Aug 5 - and moved on to the Constitutional Council
(CC), whose ruling on Funcinpec's formula complaint will
be crucial. Hanging in the balance is whether the
Cambodian People's Party (CPP) or the opposition will
control an absolute majority in the 122-seat National
The council, formed this year amid allegations of
illegality and political bias, must now prove to its
critics that it can act in a neutral and professional
manner. Some claim it has already erred in refusing to
receive a formula-related complaint from the opposition
Sam Rainsy Party (SRP).
On Aug 13 and 14, clerical staff at the CC turned away a
thick stack of SRP election complaints, accepting only
one complaint about recounting. An angry Sam Rainsy said:
"You cannot reject my appeal at this receiving
letter desk level!"
But CC member Say Bory said later that the clerks acted
under orders: "I asked [CC President] Chan Sok why
they were rejected. He said, 'I ordered the clerk to say
that, but maybe the clerk did not explain well to Sam
Bory explained that it was indeed an administrative
matter: that any complaints forwarded from the
now-inactive NEC had to be accompanied by a comprehensive
cover letter from the complainant, and that Rainsy's
letter only mentioned the recount.
One Cambodian legal expert said the council itself should
have weighed the complaints. "The CC should receive
and consider them... According to civil law, any judge
who fails to consider a complaint lodged by a citizen
should be punished."
However, while the kerfuffle between the council and
Rainsy grew heated - with CC member Binh Chhin telling
Rasmei Kampuchea that his clerks knew the law better than
Rainsy, who is a lawyer - Funcinpec quietly submitted its
own formula complaint on Aug 13 with a correct cover
letter, which was accepted.
Diplomats and legal experts will be watching closely to
see how the Constitutional Council handles the case. Most
are not optimistic.
"We have to wait and see," said several
Espousing a view shared by many critics, a foreign lawyer
was blunt: "There is no reason to believe the
council will act legally."
Rainsy has declared that he will only respect the verdict
of the three Royal appointees on the formula question,
claiming the other six members are not impartial,
according to an Aug 18 statement.
Say Bory, who is not seen as close to the CPP, said he
would be vigilant about possible bias. "If there is
a violation of the law because of some political
motivation, you will hear about [it from] me," he
One Western diplomat thought the opposition was pinning
too much hope on the formula question, regardless of the
council's competency: "On that particular issue, I
don't think there is that much sympathy compared to other
things they had to put up with" such as pre-election
intimidation and unequal media access.
In any event, the council has 20 days from Aug 13 to rule
on the formula. A tangle of testimony and evidence
Legal analysts, opposition politicians, diplomats and
election specialists have all put in their two-cents over
the issue, but the major players involved are the
National Assembly, the NEC and the NEC's top foreign
election technician, Canadian Theo Noel.
The seat allocation formula was first discussed within
the Interior Ministry's Election Bureau, the forerunner
to the NEC, as the ministry prepared the national
election draft law that would later be sent to the
Assembly for approval.
Many of the senior Cambodian and foreign election
planners - including NEC member Chhay Kim, NEC
Secretary-General Im Suorsdei and Theo Noel - continued
with the election process from start to finish and were
the individuals most familiar with the technical details
of the election.
In late 1997, before the election law was sent to the
full parliament for debate, Chhay Kim and Noel said they
presented a seat allocation formula to the Assembly's
legislative committee, led by CPP member Chor Leng Huot.
Kim and Noel contend that the formula agreed upon - a
"highest average method" chosen from a 1994
French-language textbook "Electoral Systems" -
was the exact formula that eventually found its way into
the final version of the NEC regulations, passed on May
29. The formula yields exactly the same results as the
much mentioned d'Hondt system.
"During the review of the election law by the
legislative committee, various formulas were discussed,
among which the d'Hondt method was discussed and used as
an example," Noel explained in a now controversial
Aug 9 memo to his employer, the Canadian International
Development Agency (CIDA), and Canadian Ambassador Gordon
"Other methods such as d'Hondt, giving identical
results, were displayed as well but the last was retained
for its simplicity," Noel wrote. Another expert has
argued, however, that the formula from the textbook is
much more complicated than the d'Hondt method.
The election law was passed by the Assembly on Dec 19. It
called for a "proportional representation with
provincial/municipal constituencies" election.
Article 118 required the NEC to "make public the
official results validated by the Constitutional Council
and determine the distribution of seats among the
political parties for each constituency. Any remaining
seat(s) shall be allocated to the political parties
according to the formula of the highest average."
Legal analysts have debated whether the National Assembly
passed the decision on the seat allocation formula to the
NEC, or whether the legislature called for a specific
formula that was discussed in full session.
Assembly Secretary-General Than Sina told the Post that a
review of the minutes from the Assembly debate revealed
no specific formula. Sina, an MP-elect for Funcinpec -
contended that no discussion meant that the law was left
for interpretation by the NEC.
"There was no clear explanation on what formula
should be used except for them to use the highest average
formula," Sina said. "The key issue is whether
the National Assembly requested the use of the d'Hondt
formula. The answer is no."
A legal expert agreed and warned that any attempt to use
the legislative committee's debate as evidence of a
specific formula being accepted could set a dangerous
precedent for the interpretation of all Cambodian laws.
"The bottom line is that it is up to MPs to put into
writing exactly what they mean," the foreign lawyer
said. "To go back and see what they discussed is
useless... If they do, it is wrong and leaves too much
open to manipulation."
Many agree that the interpretation of "highest
average" was legally left to the NEC by the
Assembly. The exact formula was entered into the NEC's
regulations, a 200-page document written mostly by Noel
and approved by the entire NEC - apparently a number of
times during the course of election preparations.
Two NEC members said they remembered passing the
regulations before the March recruitment of the
provincial election commissions and that amendments were
made to the rules in several NEC meetings before polling
day, the last occurring on May 29.
Copies of the regulations were distributed to local NGOs
during the pre- polling period. The election watchdog
COMFREL obtained the regulations and applied the formula
to the results its observers gathered after the July 26
The estimated seat allotments reported by COMFREL after
the election sharply contrasted with the NEC's internal
count, and the NEC informed the observer group that it
was apparently using the wrong formula.
The NEC and Noel contend that COMFREL received a copy of
the draft regulations that contained an incorrect example
on how to use the formula.
"During the review of the draft of the regulation in
May, after being informed by two NEC members that the
[seat allocation] example was not in accordance with the
method, he discovered that the example given was not
consistent with the method as described in the text book
because he had run the formula only once for the
remaining two seats...," Noel wrote in his memo.
"So the consultant, in accordance with the election
law, revised the example...
"As for the versions of the Regulations and
Procedures, there were as many as days and a footnote
will indicate the day it was reviewed. The NEC passed
first chapters five and six for the registration of
electors, then progressively other chapters and finally
the whole draft."
Opposition leaders contend that the original formula
contained in earlier versions of the NEC regulations
should be used.
They argue that the formula in the final version was
altered by Noel and a few NEC members with ties to the
CPP and was never officially passed by the entire NEC -
which by law is supposed to make decisions by majority.
In a bid to prove its position, the opposition obtained
copies of the minutes to the May 29 NEC meeting when the
regulations were approved for the last time.
The minutes show that the NEC discussed the regulations
"that have already been revised" and tabled
them for promulgation. But the minutes state that Chhay
Kim took an extra day to review the regulations one last
time before final approval the next day.
"At the beginning of the talk on this agendum, His
Excellency Chhay Kim suggested that this meeting should
give him one night to check over thesubject. Then it
would be brought tomorrow for approval," the minutes
NEC member Do Kong Nguon, the election official in charge
of recording the minutes, has denied all requests for
copies of the next day's minutes - or any other meeting's
- on the grounds that "the NEC must maintain its
The denial has sparked suspicion and defiance from the
opposition. "The NEC should adopt decisions by
majority vote," opposition party leader Sam Rainsy
told the Post. "If there is a vote, there should be
a meeting. If there is a meeting, there should be
Fuel was fed to the fire when Noel's memo to CIDA was
leaked to the opposition and the press. In it he gave a
conclusion to the seat allocation controversy that the
opposition says proves the foreign technician has not
acted in an unbiased fashion.
"There has never been any intention or attempt to
favor a party or another," Noel wrote. "Those
who have insinuated that, are the ones who broke away
from their former parties and those, due to bad
leadership, have engeneered (sic) the split of the
opposition... Why have they not complained before the
"The opposition parties, in my view, should now
accept the results of the election gracefully and should
stop identifying scapegoats to cover up their divisions
and their weaknesses. I also think that the international
community should cut short supporting the opposition
claims, which up to now, were proven groundless."
After the memo was leaked, Sam Rainsy and Funcinpec
President Prince Norodom Ranariddh fired off a blistering
letter to Canadian Foreign Minister Lloyd Axworthy
saying: "Noel's letter indicates that he sides with
the ruling party and has sided with them for some time.
"Mr Noel's account of the sequence of events
surrounding the formula is riddled with technical
inconsistencies. Worse, Mr Noel concludes with highly
politicized statements attempting to clear the ruling
party of charges it manipulated the election results, and
criticized the opposition and its past policy
decisions... He claims that the split [in the
oppositionbetween Rainsy and Ranariddh] gave the CPP the
majority, as if the formula (and a multitude of other
factors) had no effect."
Noel told Agence France-Presse on Aug 17 that his
comments in the memo were his "opinion", but
said the opposition could not dispute the conclusion.
"They would have a hard time saying the
opposite," he said. "When you look at the
results, look at the mathematics, the vote was split
between the opposition."
Ambassador Longmuir said he was not prepared to comment
about the controversy. However, diplomatic sources said
that Noel enjoys the full confidence of the Canadian
An NEC member, speaking on condition of anonymity,
defended Noel and the NEC, saying that although some
individual NEC members did not understand the nuances of
"highest average" formulas until after the
election, neither did the opposition. The NEC member
contended that it was unfair of the opposition to accuse
the election body of being sloppy, when the opposition
was also not keeping a close eye on the formula.
One diplomat interviewed by the Post said the incident
has so far shown that neither the NEC nor the opposition
have handled the situation well.
"The only thing one can state with any degree of
certainty is that the NEC, in issuing the regulations,
and in particular the formula of the seat allocation,
behaved ineptly and without transparency," the
diplomat said. "But conversely, the opposition has
little excuse for not reading thoroughly the documents
they were given many weeks before the election."
But when the Constitutional Council reviews the case, the
legal expert argued that the burden of proof should fall
on the NEC instead of the opposition because the NEC has
so far not proven its position publicly.
"They must prove they had a meeting with a quorum of
seven members and that at least six agreed to adopt the
regulations with the formula," he said.
"If they could just prove that they passed one
formula or the other, the controversy would be
One foreign reporter closely covering the story remarked:
"It just goes to show that no one likes to do
No one, except perhaps the CPP.