The question of law and politics have become a central point for discussion among politicians, law makers, scholars, and civil society for almost every time immediately after the national election have just finished. In 2003, there was a remarkable event where the Cambodian Constitution was amended to solve the political deadlock. Since the 1993 the first year when the Constitution was adopted, many amendments have been made to accommodate and resolve political deadlocks. This raises a question of how law and politics interact with each other to solve the political deadlocks while at the same time to observe main principles such as the principle of separation of power and fundamental rights. While the problem has still been subject to discussion and have not been solved, the 2008 national election has brought the same problem that I believe we should pay more attention to it.
According to the announcement of the national election provisional result by National Election Committee, the CPP gets 91 seats, the SRP gets 26 seats, Human Right Party (HRP) 3 seats, Funcipec 2 seats, and Norodom Ranariddh Party (NRP) 2 seats. The CPP will make a coalition with Funcipec to have a total seats of 93 seats, and the SRP, the HRP, and the NRP have made a democratic alliance to have a total number of 31 seats. This democratic alliance has just recently announced that they rejected the result of the national election, and their position, especially SRP, is about to boycott the first meeting of the near-future-established national assembly.
For the CPP, if the democratic alliance boycotts this first meeting, they are going to share the 31 seats whereby 15 seats will be given to the CPP and 16 will be given to the Funcipec. Then, it comes to the legal question of how to share these seats under the laws. The main discussion will focus on Article 76 of the Constitution which saying that “The assembly consists of at least 120 members.” The democratic alliance will base on this article to argue that without their participation, the requirement of at least 120 members cannot be fulfilled. It means that the National Assembly cannot be established without their seats.
The CPP takes a different position and argues that if the democratic alliance does not attend the first election, it means that they abandon their seats; therefore, their seats can be shared among other parties (See Cheam Yiep, the Cambodia Daily, August 5, 2008). There is no legal ground to reach to this conclusion. The Constitution does not say so and the Election Law does not make clear too. For these reasons, how the boycott can lead to the abandonment of the seat will be subject to the interpretation. The Constitutional Council will play an important role in this matter, but Hun Sen said that the Constitutional Council has already interpreted this. I cannot find which decision of the Constitutional Council on which he based to conclude this.
Even though, the CC has not interpreted it, it is believed that the CC will interpret in favor of the CPP. It does mean that law and politics distinction will depend on the neutrality and independence of the CC, but I think the CC will not go in that way. In this case, politicians are going to use law to get power to control this country, and the only result the democratic alliance will get if based on legal argument is a loss. So the democratic alliance should use other strategies to win this battle.
Nevertheless, Chhim Phalvorun makes a very interesting argument that the political parties should bear two important responsibilities (See the Mekong Times, August 4, 2008). First, it is the legal responsibility for the electoral process. In this sense, they must show that the electoral process is fair and free. If there is enough evidence to show that it is necessary to hold a new election for any constiency, all should do it. If not, they have to accept the result. But they should not mix them up, I think. Second, it is the political responsibility for the voters. If they share the seats, they ignore the voters of about two millions for the democratic alliance. This will affect the democratization in Cambodia whereby it will discourage people from going to vote again because they lost their confidence and expectation. Therefore, two main responsibilities should be seriously considered by all parties: legal responsibility and political responsibility.