A T the heart of the argument between Sam Rainsy and the government over the legitimacy
of his Khmer Nation Party are two legal questions:
- Does the electoral law passed to govern the 1993 UN-supervised election still
- If not, can a political party be legally formed until the National Assembly passes
a law to replace it?
Both questions raise issues of Constitutional law and legal philosophy not easily
resolved, say legal observers, in the absence of a Constitutional Council, the yet-unformed
body authorized to decide such weighty questions - though one observer pointed out
that all courts are empowered to decide "all cases" brought before them.
Rainsy formed his opposition party on November 9 - Khmer Independence Day. He submitted
some, but not immediately all, of the information required by the Untac Electoral
Law passed in August 1992 to "govern the election, to be organized and conducted
by the [Untac]..." in May 1993.
Ministry of Interior officials announced they could not "recognize" the
KNP because of the failure to file all the information required by parts of the law
dealing with the formation of political parties. First Prime Minister Norodom Ranariddh
said the party had "no legal standing" and chided it as "a party that
does not respect the law...."
Rainsy submitted more documents, saying he was attempting to comply. But in December,
the government changed tack. Interior notified KNP that the Untac electoral law was
no longer valid - that unlike other Untac laws, which remain in effect until replaced
by the National Assembly, it was a law passed for a specific purpose, to govern a
specific election that was now history. The language of the electoral law, in effect,
Rainsy was told his party could not be recognized until the Assembly passed a new
electoral law. He took the question to the municipal court, and Interior first invited
him to discuss the problem - but then postponed the talks.
On the question of the electoral law's validity, says one legal observer, "I
could argue either side. No one is right or wrong. If the argument went to an appeal
court, it would be a split decision.
"Maybe the best argument," the observer added, "is that parts of the
law exist, parts don't."
On the other question - whether parties can be formed if the law is invalid - legal
analysts look to the Constitution.
Article 42 of the Constitution guarantees Khmer citizens the right "to establish
associations and political parties."
The article also contains a provision requiring that the rights "shall be determined
by law," observers pointed out. That's the heart of the government's argument
that Rainsy can't form a party until the Assembly passes a law.
But another article, 139, says all laws that "safeguard" rights and freedoms
"shall continue to be effective until altered or abrogated by new texts, except
those provisions that are contrary to the spirit of this Constitution."
Certain parts of electoral law dealt specifically with technical aspects of the 1993
election and are clearly outdated, one observer said. But other parts dealt with
fundamental rights - for instance, the right to form parties.
"You could argue that the electoral law applied only to that  election,
and it's a very reasonable argument," one said. "But you still have to
deal with [Article] 139."
The Assembly has yet to begin work on a new electoral law.
"There is also a question of legal philosophy," says one observer. "The
basic legal principle of democracy is that if something is not prohibited, it is
Another argued that the government has contradicted itself by refusing to apply the
Untac electoral law to Rainsy - since it was Article 78 of that law, dealing with
the National Assembly, that was used to oust him from his seat in Parliament.