"When it comes to decision-making,
it is the majority which counts, but when it comes to representation, it
is the proportion which matters." - Victor Considerant, French Socialist
After the recent elections for the National Assembly, quite a number of
articles on the controversial formulas of the allocation of seats have appeared
in the media.
However, there still seems to exist quite a lot of confusion and misunderstanding
about this issue among many people, even "experts", and a large
number of diplomats. This article tries to bring some light to a subject
which has all the potential to create a serious constitutional crisis if
it is not properly addressed.
The preamble and Article 51 of the Constitution as of Sept 21, 1993, prescribe
"a multi-party liberal democratic regime" and "a policy of
liberal democracy and pluralism" for Cambodia, thus creating the foundation
for an electoral system of proportional representation in Cambodia.
Proportional representation implies that the number of seats allocated to
a party should be proportional to the number of votes that party has received.
According to Article 76 of the Constitution the deputies of the National
Assembly "shall be elected by a free, universal, equal, direct and
secret ballot". With regard to the seat allocation formula the constitutional
principle of the equality of votes is of utmost importance because it demands,
amongst others, that each vote should have the same value as expressed in
the number of seats.
Or, to put it another way: each seat in parliament should represent about
the same number of votes, regardless to what party it belongs.
The Law on the Election of the National Assembly as of Dec 19, 1997, prescribes
that "the electoral system shall be proportionalrepresentation, with
provincial/municipal constituencies" (Article 5). Apart from that,
the electoral law stipulates that "remaining seat(s) for a constituency
shall be allocated in accordance with the greatest (highest) average formula"
Unfortunately, the provision of Article 118 is not clear at all, because
there is no internationally recognized standard view on what constitutes
the highest average formula.
One group of experts (Cotteret/Emeri; Martin; et al) pretends that the "highest
average formula" or "method of the greatest divisors" comprises
only the so-called "Jefferson method" which, in turn, gives the
same result as the d'Hondt divisor system.
Another group of experts (IDEA; Farrell; O'Neal; et al) subsumes a number
of divisor systems to the notion of the "highest average system",
ie: the Jefferson formula which is, in its results, equivalent to the d'Hondt
system of the greatest divisors, the Sainte-Lague formula (or Webster formula
of major fractions), and, three modified Sainte Lague versions.
Overall, the Jefferson or d'Hondt formula is judged to be the least proportional,
while use of the pure Sainte-Lague highest average formula and the largest
remainder system using the Hare quota (equivalent to the UNTAC system) produce
the greatest proportionality (Lijphart; Farrell; O'Neal; Gauglhofer; et
Few authors (eg M Gauglhofer) and experts have taken notice of the so- called
"quota method" of two North American scholars ML Balinski and
HP Young which they have proposed since 1975 in a considerable number of
outstanding academic papers.
The reason for that might well be that the "quota method" is rather
youngin comparison to the other methods of seat allocation, most of which
date back to end of the 19th or beginning of the 20th century.
The Balinski/Young method clearly belongs to the category of the highest
average system because it establishes, like the Jefferson method, the highest
average according to the formula Vv/(Ns+1) for the allocation of remaining
seats. In contrast to the Jefferson method, Balinski/Young then allocate
the remaining seats in one step whereas the Jefferson method allocates the
remaining seats in several steps.
The reason why Balinski/Young proposed their "quota method" is
that no party should get more seats than its upper quota. Table 2 shows that in Kampong Chhnang
the CPP, with a quota of 1.87 seats, would get 3 seats according to the
Jefferson method. However, according to Balinski/Young, a party with a quota
of 1.87 seats should get a maximum of 1 + (0.87=)1 = 2 seats because 0.87
seat can only be rounded up to 1 seat and definitively not to 2 additional
In Kampong Cham where Funcinpec won most of the votes that party, with a
quota of 6.92 seats, would be allocated 8 seats according to the Jefferson
method whereas under Balinski/Young Funcinpec would only get 7 seats in
Kampong Cham in due respect for the upper quota 6 + 1 = 7.
Therefore, according to Balinski/Young and other authors, the Jefferson
method of the highest average does not satisfy quota and tends to be disproportional
in favor of the winning party. The figures provided in Table
1 prove this assessment to be correct.
From the above-mentioned we can conclude that the concept of the "greatest
(highest) average formula" of seat allocation contains at least two
methods: the Jefferson method which is equivalent to the d'Hondt system,
and the Balinski/Young method.
Therefore, the provision of Article 118 of the Law on the Election of the
National Assembly is unfortunately not conclusive as to what highest average
method for the allocation of remaining seats should be used. Consequently,
according to Article 16 of the electoral law, the National Election Committee
(NEC) had the responsibility to decide on the seat allocation formula and
to include it in the Regulations and Procedures for the elections.
The Khmer-language version of the Regulations as of May 6 and May 25, 1998,
both of which were not marked as "Draft" and which had been distributed
widely to political parties and interested organizations included in Annex
V a formula for the allocation of seats which was identical to the Balinski/Young
formula. This was the 1st NEC formula for seat allocation.
Then, at the end of May, that formula was apparently changed into the Jefferson
(equivalent to d'Hondt) method, and a May 29 version of the Regulations
including a new Annex V was produced and was apparently distributed to the
political parties in the beginning of June.
However, the minutes of a NEC meeting on May 29 do not include any reference
to the changed seat allocation formula or that this change had been discussed
and decided by the members of the NEC. Too, the NEC did not issue a press
release concerning the change in the formula of the seat allocation.
Most of the political parties and interested organizations became aware
of the change in the seat allocation formula only after the election when
they used the 1st NEC formula (Balinski/Young) to calculate the allocation
of seats in the new National Assembly and compared it with the projections
of the CPP, which seemed to be the only political party to be informed about
the change in formula in time.
It has been said by a number of critics of the non-CPP parties that these
parties did not do their homework properly by not carefully studying the
Regulations as of May 29. Certainly, they share some responsibility for
the present impasse. However, it should not be forgotten that many of themwere
struggling to rebuild party structures which had been destroyed during the
coup in July 1997.
In addition to that, they had received earlier versions of the Regulations
which were not marked as "Draft" and it was indeed not easy work
to study carefully each new version of a document which comprised nearly
200 pages and compare it with earlier versions.
Finally, the NEC, when it released the May 29 version of the Regulations,
should have issued at least a letter to the parties clearly pointing out
the changes in the latest version.
The formula for the allocation of seats is one of the cornerstones of any
electoral system of proportional representation. It can have vast political
repercussions. It can decide about the absolute majority in parliament,
and in the case of the elections in Cambodia in 1998 it does.
Table 1 shows that
if the 1st NEC formula of Balinski/Young is applied, Funcinpec together
with the Sam Rainsy Party would get 62 seats, whereas CPP would be allocated
59 seats (1 seat would go to the Khmer Democratic Party). However, if the
2nd NEC formula of Jefferson is used, CPP would get 64 seats and Funcinpec
together with the Sam Rainsy Party would be allocated 58 seats.
In view of these consequences of the change of formula from Balinski/Young
to Jefferson, the statement of the senior election technical adviser to
the NEC, Mr Theo Noel, that "the revision of the formula was purely
technical" is completely incomprehensible.
A change in the seat allocation formula has to be made public. It simply
cannot be done by a dead-of-night action as it appears to have been done
at the moment. The way the NEC handled this change seems to be unprofessional,
non-transparent, politically irresponsible and, perhaps, even illegal.
Table 1 shows that
there is not only a considerable difference in seat allocation between the
1st and the 2nd NEC formula but that there is also a significant difference
in proportional representation of the votes as expressed in the number of
seats for each political party.
The 1st NEC formula of Balinski/Young produces fairly proportional results:
The number of votes represented by each seat varies between 34,420 for the
CPP seats and 38,870 for the seats of the Sam Rainsy Party, which results
in a difference of 4,450 votes per seat. By far the best proportional result
is produced by applying the Sainte-LaguÎ formula with a difference
of only 1,728 votes per seat.
However, the 2nd NEC formula of Jefferson/d'Hondt produces by far the most
disproportional result and the biggest inequality of votes in favor of the
winning party (CPP) at the expense of the smallest party (SRP).
The number of votes represented by each seat varies between 31,731 for the
CPP's seats and 46,644 for the seats of the Sam Rainsy Party, which results
in a difference of 14,913 votes per seat.
This huge disproportion seems to be in contradiction to the principles of
the equality of votes and of proportional representation as stipulated in
Article 76 of the Constitution and in Article 5 of the Law on the Election
of the National Assembly, respectively. Therefore, it seems that the 2nd
NEC formula is not only in contradiction of the electoral law but also unconstitutional.
Nicaraguan dictator Anastasio Somoza once told the opposition: "You
won the elections. But I won the count."
Unless the Constitutional Council is able and willing to make a fair judgement
on the matter of the seat allocation formulas, that statement would need
to be re-phrased to "You won the elections, but I won by formula"
in order to match a situation which should be prevented from happening.
Peter Schier is the permanent representative of the Konrad-Adenauer-
Foundation (KAF) in Cambodia.