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Logo of Phnom Penh Post newspaper Phnom Penh Post - Opposition left in the cold by legal loophole

Opposition left in the cold by legal loophole

WHEN the Constitutional Council slammed the door on the opposition Aug 31 by flatly

rejecting the few election-related complaints it agreed to receive, any chance for

a legal settlement to the post-election political crisis appeared lost.

But the next day, as the National Election Committee prepared to release the official

results of the election, Funcinpec announced in a communiqué that it had unraveled

the loophole that had kept the majority of its complaints stuck in legal limbo between

the NEC and the Constitutional Council.

Its complaint that the National Assembly seat allocation formula to be employed by

the NEC had never been legally approved was rejected because the top election body

had never ruled on the issue. The same went for their complaint that the results

in Kampong Thom were so close that "any democratic country" would have

recounted the province to ensure an accurate allocation of seats.

Funcinpec contended in its statement, citing Article 117 of the election law, that

the NEC must rule on an election complaint within 48 hours of receipt and must forward

a rejection form to the complainant and the Constitutional Council - a process which

should open the complaint up for inspection by the council.

"To date, the NEC has refused to issue written notice of either acceptance or

rejection of the above complaints... Clearly, the NEC has failed in its administrative

duty, set forth in the law, to issue notice of its actions with respect to the complaints

filed with it," the communiqué stated.

Council member Say Bory, one of King Sihanouk's three appointees, seemed to agree

that the NEC was holding up the legal process. "We have no document. You must

ask the spokesman of the NEC," he told the Post. "Without the document,

we can't do anything... We can decide only when there is an official decision from

the NEC."

NEC member Tip Jahnvibol, head of the NEC legal department, said an official rejection

on the seat formula was not given after the announcement of the preliminary results

on Aug 5 because he had concluded that the seat formula should be addressed after

the official results are announced and before the seats are allocated.

"As far as the formula is concerned, the Constitutional Council should consider

it now," he said Sept 2, the day after the official results and seat allocation

was announced. "The NEC did not rule on this matter before because we only ruled

on the preliminary results, not the seat allocation."

A well-placed election source reported that the NEC did deliberate on the formula

complaint before deciding to use the Jefferson formula - the formula that gives the

CPP an absolute majority in parliament - before allocating the seats.

However, the source reported that the NEC decided not to publish an official rejection

of the opposition complaint, a move that will keep the Constitutional Council from

ever hearing it.

"The majority ruled not to make a formal rejection... Transparency is so important

and I think we lacked that in the last minutes," the source said.

The Constitutional Council received Funcinpec's latest complaint and discussed it

Sept 1, but council member and spokesman Yang Sem said the supreme legal body was

not swayed by the royalist party's argument.

"They just keep sending the same complaint with different wording," Yang

Sem said. "It is past the 72 hour deadline [for lodging election related complaints

after the preliminary results are announced]... We cannot do anything with it."

Legal experts and political observers were aghast at the behavior of the Constitutional

Council, saying previous analyses that the council was controlled by the CPP appeared

to be valid.

"They are playing tricks," said one NGO director. "They don't understand

the rule of law."

One foreign lawyer said high courts in other countries usually loosen procedural

requirements for important cases, but the Constitutional Council appeared to have

done the opposite.

"To assert minor inconsistencies in procedures for filing, which were not made

public, I believe, in order to escape responsibility - especially in a big case like

[the seat allocation formula], a case with so much riding on it - they only hand

ammunition to those who feel poorly treated by the process," the lawyer said.

Another legal expert was more blunt in his criticism of the council. "They are

making it clear that they are merely a political tool of the CPP," he said.

"It is not a surprise considering six of the members are high-ranking CPP officials."

Yang Sem refuted the accusations of bias, arguing that the council is swayed only

by the laws under which it operates. "We just do what the law says to do, a

formal investigation," he said. "We are not involved in politics. We are

neutral."

Yang Sem said Sept 2 that the council had now completely finished its work on the

election.

Say Bory gave a different opinion, saying that election-related complaints could

still be addressed if they challenged the constitutionality of laws or decisions,

but it appears that the majority of the council has decided the election is a done

deal.

The opposition attempted to file more than 100 complaints to the council, of which

only 17 were accepted for study. The council agreed to hold a public hearing for

two similar complaints, one from Funcinpec and one from the Sam Rainsy Party, on

the NEC's decision to halt ballot recounting after only eight communes were completed.

After hearing live and written testimony from NEC members and officials for about

an hour, the council decided on Aug 31 to uphold the NEC's decision.

The same day at a press conference, the council announced that all 15 remaining complaints

had been rejected due to insufficient evidence.

Two days later the official results of the election were announced by the NEC, showing

only a minor difference in vote tallies from the preliminary results. Seat allocations,

using the controversial Jefferson formula instead of the opposition-supported Balinsky/Young

formula, were identical to preliminary projections: 64 seats for the CPP; 43 for

Funcinpec and 15 for the Sam Rainsy Party.

Sam Rainsy announced Sept 1 in a statement that he his party rejected the official

results, proclaiming that "the electoral process has failed to meet legal and

democratic standards from start to finish".

With no more chance of appeal after the rejections from the Constitutional Council,

Rainsy called on the international community to revise its favorable opinion of the

election that was announced by international observer groups in the days after the

July 26 balloting.

"We ask the international community to make a revised assessment of the electoral

process as a whole," Rainsy wrote. "We ask the international community

to tell the Cambodian people whether any failures might have occurred, and whether

the international community finds these failures acceptable. This is the opportunity

for the international community to avoid a historic failure in Cambodia."

Phnom Penh-based diplomats were reluctant to comment on the functioning of the Constitutional

Council, saying the jury was still out on whether it had acted in a proper legal

manner.

"I don't want to give an opinion because [this embassy] hasn't formulated an

opinion yet," one diplomat said. "In political terms I can only say that

it looks like the opposition didn't get what it wanted and this deadlock looks certain

to continue."

One legal expert surmised that the only way the opposition will gain any international

support is to keep up the political pressure by blocking the formation of the next

government.

"If the opposition can moderate its rhetoric a little bit and appear to be serious...

and stick to the same conditions they have put out, they can build support for themselves,"

he said.

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