​Character of Constitutional Council should emerge in seat controversy | Phnom Penh Post

Character of Constitutional Council should emerge in seat controversy


Publication date
21 August 1998 | 07:00 ICT

Reporter : Chris Fontaine and Elizabeth Moorthy

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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

cautious diplomats.

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

polling day.

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.

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