CAMBODIA: The Cambodian government must address the election flaws

In 1993, as part of its administration of Cambodia, the UN organized an election of a new government for that country. Since then Cambodia has organized, by itself, three periodic parliamentary elections, in 1998, 2003 and 2008 and two periodic commune elections, in 2002 and 2007. 

The task of organizing elections is entrusted to a body called the National Election Committee or the NEC. After these successive elections and with international support, the NEC has grown in skills and expertise. The European Union Election Observation Mission which observed the recent parliamentary election in July 2008 has appreciated the NEC’s “ability to organize technically good elections”.  The US Embassy in Phnom Penh has also noted that the electoral process for the July election was “an improvement over past Cambodian elections.” 

However, despite such improvement and gains in technical expertise, the July 2008 electoral process still had many of the serious flaws and shortcomings that the previous ones had and that have not been addressed. Due to these shortcomings, this election, according to the same EU Mission, “has fallen short of a number of key international standards for democratic elections.” 

For their part, two of the 11 competing parties in the election, the Sam Rainsy and the Human Rights Parties, have claimed “massive fraud” when up to almost one million legitimate voters were disenfranchised as their names were missing from the voter lists and they could not cast their votes on the polling day. These two parties have also claimed that illegitimate voters such as aliens and under aged Cambodians, all allegedly supporting the ruling Cambodian People’s Party, were illegally helped by local officials to cast votes on the polling day. 

Based on these claims, these two parties had rejected the NEC’s preliminary election results according to which the Cambodian People’s Party won 90 out of 123 seats, the Sam Rainsy Party, 26 seats, Human Rights Party, three seats, and two other parties, two seats each. Both the Sam Rainsy and the Human Rights Parties have further claimed that, if there had been no such fraud, they would have won respectively up to 41 and 7 seats, and the Cambodian People’s Party’s seats would have been down to as low as 67, instead of 90.

These two parties have filed their complaints with the NEC which is the first level of election dispute resolution mechanism and then with the Constitutional Council which acts as a court of final appeal for election disputes. They have said that, if their complaints are not addressed, they would boycott the first opening of the new Parliament planned for 24 September by not taking up their seats. However, both the NEC and the Constitutional Council have rejected their complaints, and these parties, which altogether won over 1.7 million out of six million votes according to NEC, have reaffirmed their boycott.

These protests and complaints seem to have become a post-election pattern in the immediate aftermath of all parliamentary elections in Cambodia. The ruling Cambodian People’s Party also protested the election results with the threat of the use of force when it lost the UN-organised election in 1993. In subsequent elections, this party has always won, and some have taken the post–election protests as the losers’ “sour grapes.”  However, the losers may turn out to have good justification for their protests and complaints when flaws and shortcomings of the electoral process have been carefully examined.

The EU Mission has stated that the NEC lacks confidence in its impartiality among election stakeholders. All the institutions involved in the appointment of its members are dominated by the ruling Cambodian People’s Party and two of its members only are associated with the opposition Sam Rainsy Party. The membership of its provincial committees is dominated by the same ruling party. 

In a press release in the immediate aftermath of the polling day, the US Embassy in Phnom Penh concurred, saying that the NEC lacked, among other things, “institutional independence”. The Special Representative of the UN Secretary-General, Prof. Yash Ghai, repeated in his report of February 2008 what one of his predecessors had been noted before: “it (NEC) is not in reality fully independent”. 

According to the same press release of the US Embassy, the NEC’s lack of independence together with the legal framework for it, the limited scope of its powers and its lack of financial independence, “hampers its effectiveness and its ability to achieve fair and equitable elections.” 

But the NEC’s lack of independence and impartiality makes it unfit as an adjudicating mechanism for election disputes. Its role as organizer of elections make it all the more unfit for this task when it judges its own cause when those disputes are directly or indirectly related to its activities. 

Election stakeholders in general and complaining parties in particular cannot have confidence in the Constitutional Council to fairly adjudicate appeal against the NEC’s decision when, like the NEC, it is under the control of the ruling Cambodian People’s Party when the overwhelming majority of this nine-member council are affiliated to it. 

The EU Mission’s report has further noted that there were “consistent and widespread use of state resources” by the ruling party, the widely reported distribution of money and gifts in which the ruling party engaged “to a greater extent than any other party”, the distribution of voter information notices by village chiefs in a biased manner, the participation of many of these village chiefs in the electoral campaign activities of the ruling party, the ruling party’s domination in the “media coverage of the elections to the detriment of the other parties to a degree which was not consistent with international standards of free and equal access to the media”, and the disenfranchisement of “around 50,000 previous registered voters”.

All other observers have concurred with regard to the ruling party’s domination of the media. The US Embassy has noted that outside the election campaign period, “the opposition parties’ access to television broadcasting was minimal and the CPP (the ruling Cambodian People’s Party) dominated the airwaves.” During the campaign period, it says, “the dominance of CPP-supporting private TV stations, which aired little or no news about parties other than the CPP, reflects a virtual monopoly by the CPP on the media and imbalanced the desired level playing field for contesting the elections.” 

Yash Ghai, in his February 2008 report, had already urged the NEC to address this issue of the ruling party’s domination of the media to ensure equal access by all political parties. Citing the observation by observers of previous elections, he said that “the media, State-owned and most of the private, are ‘overwhelmingly favourable to the main governing party (the Cambodian People’s Party)’.”

Another flaw which works against free and fair elections is the local officials’ bias in favour of the ruling party throughout the electoral process. Yash Ghai noted in his report that issuing identity cards and preparation of the vote registry were done by State officials and these officials were “mostly connected to the ruling party”, and he heard complaints that “these functions were performed to favour the ruling party.” 

The head of a local election monitoring NGO has cited commune and village chiefs as another “decisive factor” contributing to the victory of the ruling party’s victory in the July election, and Yash Ghai already noted that these local officials are mostly affiliated to the ruling party. According to this leading local observer, these local officials were able to exercise pressure on voters and, through vote counting at the local level, were able to identify opposition supporters. 

In the aftermath of the July election, the NEC’s provincial election committees and also the winning party’s caucuses conducted the evaluation of their respective election work and performance. It is high time that the NEC and especially the Cambodian government addressed the flaws and shortcomings that were highlighted above and many more that the successive Special Representatives of the UN Secretary-General for Human Rights in Cambodia and international and local election observers had identified since the first parliamentary election Cambodia had organized by itself in 1998.

The correction of these flaws and shortcomings are required so as to ensure that future elections will meet the international standards of democratic elections, avoiding the repetition of the post-election conflicts and affirm the legitimacy of the legislature and government that will issue from such elections.