While the opposition party steps up its efforts to persuade the international community to cut ties with a government it says was formed by a “constitutional coup”, lawyers and analysts yesterday questioned whether the party’s reasoning has any legal basis.
In a letter sent to the Asian Development Bank, World Bank, European Union and International Monetary Fund on Monday, Cambodia National Rescue Party leader Sam Rainsy lays out why such institutions should reconsider their relations with the “illegal” government.
Rainsy, whose party has boycotted the National Assembly citing unaddressed electoral complaints, references Article 76 of the Cambodian Constitution, which states: “The National Assembly consists of at least 120 members”.
He also references a Constitutional Council decision from 2003 that clarified Article 76 and another article in response to a request from lawmakers regarding the death, removal or incapacity of assembly members.
In the letter, Rainsy says the decision “specifies that the first meeting of the Assembly following any parliamentary elections must gather at least 120 members in order to be valid”.
He adds that only 68 ruling party lawmakers attended the inaugural session on September 23.
But lawyers yesterday expressed doubts that either the Constitution or the Constitutional Council’s 2003 decision could be interpreted in such a way.
“If you read the Constitution word by word … [it does not say] that the first meeting requires 120 or more for the commencement of the legislature,” Ly Tayseng, partner and managing director at HBS law, said.
“It is completely unreasonable to require at least 120 members to be physically present … such interpretation … is erroneous and illogical, because if it was to be true, then the [parliament] in a multiparty democracy cannot be formed when simply a few members of [a] minority party [are] absent from the first meeting,” Tayseng said.
Anirudh Bhati, an Indian-trained lawyer and legal consultant based in Phnom Penh, made a similar argument in a legal analysis posted online on Tuesday.
“[The Constitutional Council decision] further states that the National Assembly results from the election, which means that the house is formed when the results of the elections are officially declared,” he writes.
As there is no “explicitly defined requirement” on how many representatives need attend the inaugural session, quorum rules defined under new articles of the Constitution added in 2006 apply, Bhati says. These articles require that only a quorum of over half of parliamentary members is needed for votes requiring “absolute majority” – such as approving the new government, as 68 ruling party legislators did on September 24.
“The quorum has been changed for the absolute majority to make the decisions, meaning now it’s half, not two-thirds,” Ou Virak, president of the Cambodian Center for Human Rights, said.
“If you look at the Constitution, when such things are not clear, they look at the intention of the drafters.… In 1993, everybody made the assumption that if you were contesting the election, you would take your seats.”
Virak added that the 2003 decision, though not mentioning an explicit first session quorum, remains problematic given the practical difference between technically being part of the assembly and actually taking your seat. “You are a member officially, but you can’t work.”
Attorney Sok Sam Oeun, head of the Cambodian Defenders Project, said he could not interpret the Constitutional Council’s past decisions in the same way the CNRP had.
“I agree with some of [the council’s] reasoning. During the first convening of the National Assembly, there does not need to be a quorum [of 120],” he said, but added that in his view all parliamentarians should have to be sworn in officially before the assembly can sit.
“The problem is that we try to interpret the general concept of the Constitution, which means we cannot interpret word by word. Our Constitution has to respect the principle of democracy.”
Election watchdog Comfrel’s director, Koul Panha, said that although the assembly’s formation was not strictly unconstitutional, it is “controversial”.
“I can’t say it violates [the Constitution], but it is something that will affect the legitimacy of the National Assembly,” he said.
CNRP whip Son Chhay said yesterday that his party stood by its decision to reference Constitutional Council decisions in its appeal to the international community.
Although he could not provide specifics on another supposedly relevant council decision, Chhay added that if the 2003 decision was “not clear” enough, a 2006 decision “clearly mentions the need for 120 MPs to create the parliament”.
“Maybe [Rainsy] got the wrong year there. I don’t know who advised him on that.… I have to double-check,” he said.
In a sign that the party’s crusade may not be fruitful, no Western governments have explicitly condemned the National Assembly since its formation on September 23.
In a statement released that day, the EU said the assembly “cannot serve its purpose without the participation of all elected political parties”. Instead of backing the boycott, it called on elected parties to “cooperate”. The US Embassy released a similar statement emphasising joint participation.
Asian Development Bank country director Eric Sidgwick said in an email yesterday that the bank was “consulting internally on the appropriate response” to Rainsy’s letter.
Separately, Interior Minister Sar Kheng reiterated that the ruling party wished to resume negotiations with the CNRP.
“We will still open the door [for them], because we want to see national unity. We should sit down to talk and resolve the problem in a proper way,” he said in a speech yesterday.
“There will be no influence from [Rainsy’s] outside travels.”
ADDITIONAL REPORTING BY VONG SOKHENG