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A case of the rule by law

A case of the rule by law

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.


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