Constitutional Council Pivotal in Election Stalemate

Since the July 28 national election, the two parties that took seats in the National Assembly can agree on very little.

The ruling CPP claims it won 68 seats to the opposition’s 55, giving it a majority in the 123-seat National Assembly, while the opposition CNRP claims 63 seats to the CPP’s 60, even before taking into account its allegations of fraud, which it wants international help to investigate.

–News Analysis

The parties have also differed on how election irregularities should be investigated, and even on readings of the country’s Constitution regarding the formation of the next government.

If negotiations falter completely, all these matters could end up be­ing decided upon by the Constitutional Council of Cambodia.

Cambodia’s 1993 Constitution called for the establishment of the Constitutional Council, which was finally set up in 1998. The body can be asked to rule on the constitutionality of laws or official decisions, and has the final say on validating election results, as well as acting as the highest court in the land for electoral complaints.

While the Constitutional Council should deal with matters legalistically and without bias, the opposition and independent observers consider the body partial toward Prime Minister Hun Sen’s CPP.

Each of the council’s nine members serves a nine-year tenure, and appointments to the council are divided among three centers of authority: three appointees of the King, three from the National Assembly and three from the Supreme Council of the Magistracy, the country’s highest judicial body.

In practice, however, the CPP’s presence is ubiquitous.

The council’s president, who holds a deciding vote, is Ek Sam Ol, a former CPP lawmaker for Prey Veng province.

Council member Uth Chhorn, who served as auditor general under CPP governments, insists upon the council’s neutrality and independence.

According to Mr. Chhorn, the other members of the council include Min Sean, also a former CPP lawmaker for Prey Veng, Chem Veiyarith, the daughter of the late CPP Justice Minister Chem Snguon, Prom Nhean Vichet, a former spokesman for the National Election Committee (NEC), and the council’s secretary-general, Pit Taing San.

The other members named by Mr. Chhorn are the once controversial Prince Norodom Chakrapong—considered one of the closer members of the royal family to Mr. Hun Sen—and former Funcinpec politicians Prince Sisowath Phandaravong and Prince Norodom Sirivudh.

Mr. Chhorn declined to comment Tuesday over the phone on the council’s role in the current political stalemate.

But last month, Mr. Chhorn defended the independence of the Constitutional Council after it held a special plenary meeting to discuss opposition leader Sam Rainsy’s request to reinstate his registration on the voter list and allow him to run as a candidate in the ballot.

The council concluded in its meeting that Mr. Rainsy’s request was “not under the jurisdiction of the Constitutional Council of Cambodia” and Mr. Chhorn at the time said the decision was not politically motivated, and that the Constitutional Council was “a neutral and independent institution.”

One issue that is likely to be brought to the Constitutional Council’s attention could be the establishment of the next National Assembly once the winner of the election is decided.

Mr. Hun Sen has claimed he has the legal right to form a new government with or without the opposition’s at-least 55 lawmakers showing up.

The Constitution stipulates, however, that 120 lawmakers are needed to constitute a National Assembly. And Article 5 of the Internal Regulations of the National Assembly also says that seven-tenths of the Assembly, or 86 lawmakers, must be present to open Parliament.

But Article 82 of the Constitution, which sets out the terms of the opening of a new Parliament, does not mention the proportion of lawmakers required to achieve a quorum.

Such complexities are why the Constitutional Council was set up and in the near future, the body could have to rule on this very matter in order for the next government to form.

In 2003, at the time of another political deadlock in which the CPP had a majority but not the two-thirds of parliamentary seats then required to form a government, the Constitutional Council was asked by Prince Norodom Ranariddh to clarify how many members were needed to usher in a new government. The council declared that it could not rule on “political aspects,” but it said that while 120 lawmakers were not required at the opening session, “The provision of Article 5 is already sufficiently clear”—referring to the article stipulating seven-tenths of lawmakers must attend.

Son Soubert, who is now aligned with the opposition but who served on the Constitutional Council until 2010, said during his tenure he argued that the council should issue stronger rulings and sometimes contradict the executive, but he was outnumbered by the views of the council’s pro-CPP members.

“There are members who belong to the CPP and only three are appointed by the King,” Mr. Soubert said.

Sok Sam Oeun, executive director of the legal aid NGO the Cam­bo­dian Defenders Project, said opting out of difficult situations had become standard practice for the council.

“Many times [when] the Constitutional Council want to deny [the government’s wishes], they say it is not based on our competence,” Mr. Sam Oeun explained.

Nevertheless, Mr. Sam Oeun said the age, high level of education and long tenures served by the Constitutional Council’s members meant that, although many have CPP backgrounds, they could be expected to show more independence in their rulings than the much weaker NEC.

“They have nine-year mandates. That means they are not concerned about their removal,” he said, adding that the council’s role would become important once the NEC has concluded its investigation into irregularities at the poll and released the officials election results.

“They play the role of an election Supreme Court. They can investigate by themselves. They can form an investigative committee,” he said of the council.

CNRP chief whip Son Chhay, however, dismissed any hope of the council giving the party a fairer hearing than the NEC.

“The Constitutional Council is just another CPP tool. There is nothing different from the NEC or the courts,” he said.

“I think this is a problem that has been happening in this country. We don’t have anywhere to turn when we complain about election irregularities.”

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