The opposition hailed the rewriting of Cambodia’s election laws a success on Monday, with the completion of the bills coming eight months after it ended its parliamentary boycott for pledges of a comprehensive overhaul of the National Election Committee (NEC).
New fines for NGOs that “insult” parties and unusual new powers for officials to disqualify parties were brushed aside by the CNRP as minor issues amid the break of the ruling CPP’s stranglehold on the NEC—the institution accused of facilitating election fraud since its creation in 1998.
Yet a reading of the NEC law—released Saturday alongside the new national election law—suggests ambiguities in the rules governing the body that could stifle its independence, despite the new bipartisan makeup.
Under one provision added to the NEC law in the late stages of talks before its completion on December 8, the operations of the committee’s administrative wing must now be approved by government sub-decree.
The new NEC law states in separate articles that the prime minister must issue sub-decrees to appoint the NEC’s secretary-general and deputy secretary-general, and also to govern “the organization and functioning of the general secretariat of the NEC.”
Under the old law, explained Committee for Free and Fair Elections in Cambodia director Koul Panha, the NEC’s board directly governed its general secretariat and issued orders to it to carry out decisions it made with freedom.
“Under the existing provisions, the NEC issues its own decisions on the general secretariat, but now it’s not like that. The government controls that by sub-decree now,” Mr. Panha said this week.
“How you make a decision, your administrative work, all of your management…and decision-making in the general-secretariat must be done by sub-decree.”
Mr. Panha likened the new system to a company whose chief operating officer is not accountable to the company’s board of directors, but rather to a third party.
Such a situation could see the CNRP’s four NEC commissioners and the neutral ninth member gelded if they issue a decision unfavorable to the CPP, Mr. Panha said.
“Suppose the general secretariat, which is like the COO, and the NEC, which is like the board, disagree. If the board has no power over the COO, which is under the government, you can imagine how it will work,” he said.
CNRP lawmaker Son Chhay, an opposition negotiator during the drafting, said the provision had irked his team and led to long discussions ended only by CPP promises that Prime Minister Hun Sen would not veto decisions.
“The CNRP disagreed with that, and said it ought to state clearly that the NEC should not be breached by sub-decrees by the prime minister if it is to remain as an independent institution,” Mr. Chhay explained.
“It could make the institution very much still under control—you could say it’s not independent—but the CPP explained that it is an administrative procedure,” Mr. Chhay said. “The prime minister does not have the right not to sign the request from the NEC,” he added. “It was solved by a guarantee from the CPP.”
Partisan Purse Strings?
The NEC’s operations could also be hindered by a new requirement that any money donated to it must now pass through the national budget, which is approved by the CPP-controlled National Assembly every December. The old law governing the election body allowed for foreign donations to be made directly to the NEC.
Hang Puthea, director of the Neutral and Impartial Committee for Free and Fair Elections, said he was troubled by the new provision that money donated to the NEC must be included in the national budget, from where it will be put into the NEC’s account at the National Treasury.
“If the NEC is neutral, their budget should have two ways,” Mr. Puthea said. “One way can be controlled by the government, by the National Assembly, but another way, the NEC should have its own independent money to allow donors to directly support it.”
However, current NEC secretary-general Tep Nytha said donor funds have almost always gone through the national budget and that the arrangement has never affected the election institution’s ability to carry out the projects and reforms decided by its board.
“Our practice was that we used the [national] budget. Whenever donations were donated for a project using the government’s money, the NEC returned the government’s money to the state,” he said.
Mr. Nytha said it appears the NEC will now receive its money from the national budget as a lump sum and be able to spend it on its projects as it wishes.
“For the new law, the term ‘autonomous’ budget makes it seem like the new NEC can hold cash and pay everything on their own,” he said. “We never had any problem with withdrawing money from National Treasury. I think the new NEC won’t have problems either.”
Mr. Chhay of the CNRP said the measure would prevent the government from obstructing NEC projects by withholding money, as the national budget could not specify how the NEC spends the money given to it.
“When it is approved, they do not have to wait for further approval. They will have a big lump sum provided,” he said. “There is no procedure to prevent the NEC from taking the money when they wish.”
The Neutral Member
Yet whether the new NEC is even established still remains to be seen. The final chapter of the NEC law states that the existing NEC will continue to function until the new NEC’s board is appointed.
The CPP and CNRP must both agree on the final member of the NEC after choosing their own four, and Licadho President Pung Chhiv Kek accepted the position last year only on conditions that were later not met.
Ms. Chhiv Kek, who would also have to renounce her Canadian and French passports to take the crucial position, said Tuesday she would not decide whether to accept it until parliament passes the laws.
“I prefer not to make any comment until the law has been officialized,” she said in an email.
If Ms. Chhiv Kek refuses the position, new negotiations must be held to select a new ninth candidate to allow the new NEC to form, with an opposition desperate for its new election body again at the mercy of an indifferent CPP.