Author: Eric des Pallières
Background
Since emerging from devastating civil and international conflict, Cambodia has held regular elections, first at the national level and then at local levels. Under the 1991 Paris Peace Agreements, the first national elections were organized by the United Nations Transitional Administration in Cambodia (UNTAC) in May 1993. Although deemed technically credible, they were marred by widespread intimidation and political violence. In September 1993, a new constitution was adopted, which established the Kingdom of Cambodia as a multiparty state and stipulated that elections to the National Assembly would be held every five years. In January 1988, the National Election Committee (NEC) was established, and further national elections were administered nationally in 1998, 2003, 2008 and 2013. The first multiparty local elections ever conducted were in 2002 for 1,621 Commune Councils, [1] whose mandates were renewed in 2007 and 2012. Indirect elections were held in 2006 and 2012 for the senate, and in 2009 for newly established councils at the district and province levels.
Until 2013, successive elections had been marked by the ever-increasing domination of Hun Sen’s Cambodian People’s Party (CPP), which has ruled the country since Vietnam overthrew the Khmer Rouge regime in 1979. After it lost the 1993 elections to the royalist FUNCINPEC [2] 38 to 45 per cent, the CPP rejected the results and a power-sharing agreement was brokered under which Hun Sen became the second prime minister. In 1997, the coalition fell apart amid armed confrontation, and Hun Sen assumed sole leadership of the country. In 1998, the CPP received 40 per cent of the votes and formed a new coalition with FUNCINPEC. In 2003, the CPP received 47 per cent of the votes but the elections were followed by protracted political deadlock as it had not achieved the two-thirds majority of seats then required by the constitution to form a government of its own, and the opposition again refused to recognize the results. Eventually, another CPP/FUNCINPEC coalition was formed. In 2008, the CPP received 58 per cent of the votes and secured a two-thirds majority in the National Assembly. Meanwhile, support for FUNCINPEC had evaporated and the Sam Rainsy Party (SRP) became the main opposition party with 22 per cent of the votes.
In 2012, the two largest opposition parties, SRP and the Human Rights Party (HRP), merged to form the Cambodian National Rescue Party (CNRP). The 2013 parliamentary elections were marked by significant losses by the ruling party, as official results gave the CPP 48.8% (68 seats) to the newly unified opposition’s 44.5% (55 seats). The integrity of the electoral process was called into question by national and international observers, who documented record levels of irregularities, [3] notably pertaining to voter registration and identification. Claiming victory, the opposition rejected the official results, calling for an independent investigation into electoral irregularities and a reform of the NEC, accused of pro-government bias. This led to massive street protests and the longest post- election crisis in Cambodia’s recent history.
Until 2013, the overall administration of elections had generally improved over time. However, two decades after the UN-run elections, the electoral process in Cambodia still fell short of key international obligations for democratic elections. In fact, issues that have undermined successive elections since 1998 have remained essentially the same: the independence of the NEC, the registration of voters and the settlement of disputes, not to mention a general environment that is not conducive to a level playing field, particularly regarding media access and the use of state resources. Whereas recent elections had underlined the need for substantial enhancements in these areas, lack of political reform and the record level of irregularities observed in the 2013 elections have further eroded confidence in the electoral administration, which is now in need of complete overhaul.
Legislative Framework
Whereas constitutional provisions outline key principles for the conduct of national elections, [4] they do not address the establishment, composition and responsibilities of an EMB, nor is this the subject of a distinct organic law. The NEC was legally established under the relevant provisions of the Law on the Election of the Members of the National Assembly (LEMNA) in December 1997. Further electoral laws were subsequently adopted as new elected assemblies were created. In the absence of a consolidated electoral code, the legal framework for elections thus consists of distinct pieces of legislation for elections to the National Assembly, the Senate, Commune Councils, and the recently established councils at the province and district levels. Other applicable instruments include the Law on Political Parties, the Law on the Press and the Law on the Constitutional Council.
Since 1998, the LEMNA has been progressively enhanced through regular amendments drawn from lessons learned, notably in 2002 and on two occasions in 2006, bringing some improvements to the general framework of electoral procedures related to voter registration, dispute resolution and the composition of the NEC. Lack of political will has since hampered reform. Minimal amendments pertaining to voter registration in 2011 failed to address core shortcomings. As for election management, the law defines the NEC as ‘an independent and neutral’ body [5], but provisions pertaining to its composition and appointment have consistently raised concerns about its actual independence. Further, important electoral administration functions are delegated to other branches of the government.
Composition and Appointment Methods
There has been a persistent lack of confidence in the neutrality and impartiality of the NEC among electoral stakeholders. Despite successive reforms of its composition, an adequate formula has yet to be found that would lead to more consensual acceptance. Further concerns relate to legal shortcomings that affect the NEC’s ability to ensure a fully independent administration of elections. Its members are nominated by the Ministry of Interior and appointed by royal decree at the request of the Council of Ministers, upon approval by a simple majority of the National Assembly. These institutions are all dominated by the CPP, and there is no requirement for public consultations among political parties or with other sectors of society. In addition, commissioners do not serve a definite term and are not explicitly protected from removal without cause by the National Assembly.
The composition of the NEC initially featured elements of multiparty membership, with eleven commissioners drawn from a variety of parties, including government officials and representatives of each political party represented in the National Assembly. It was widely criticized for lacking independence and impartiality in both the 1998 legislative and 2002 commune elections, particularly in its handling of complaints. While opposition members were largely outnumbered, internal strife also affected decision- making during the contested 1998 parliamentary elections. Many critics demanded reform that would remove party influence, while others argued in favour of an openly multiparty NEC with sufficient checks and balances. Before the 2003 elections, it was reformed to a smaller, ‘neutral’ board, whose five members were to be selected ‘from among dignitaries experienced in politics, with work experience and good reputation’ [6]. New procedures were also introduced for appointing members of subordinate provincial and communal election commissions. In an environment characterized by partisanship and obedience to authority, the switch to an expert EMB failed to ease accusations of pro-government bias by opposition parties and civil society watchdogs.
In 2006, a new amendment to the law enlarged the NEC’s membership from five to nine, tacitly reinstating some multiparty representation as it allowed FUNCINPEC and the opposition SRP to second two members each, while the five others were deemed aligned with the ruling party. In practice, however, FUNCINPEC had become a coalition partner of the ruling CPP, and the balance tilted to seven to two on most decisions. With NEC decisions being made by simple majority vote and its internal regulations requiring a minimum of three members to put forward any proposition, the influence of opposition representatives remained extremely limited beyond accessing information. Subordinate provincial and communal commissions often remained largely dominated by CPP affiliates, as documented by national and international observers. [7] In 2011, the main political parties other than the CPP issued a joint call for multiparty representation at all levels of electoral administration, but their demand was not taken into consideration. [8] Following the 2013 elections, the opposition has made a complete overhaul of the NEC a key condition of any political settlement.
Institutional Structure and Capacity
Cambodia’s elections are administered by a four-tier structure. At the central level, the NEC is headed by a permanent nine-member committee: one chair, one vice chair and seven commissioners. It is supported by a General Secretariat, which oversees the work of five departments: operations, administration, finance, training and public information, and legal services. The General Secretariat has developed significant technical expertise over the years, and has demonstrated the capacity to efficiently plan and execute electoral activities, although the use of new technologies has been underexplored to date, particularly as regards voter registration processes and results management. Activated for the election period, lower-level structures consist of 24 provincial election commissions and 1,633 commune election commissions. Between elections, the NEC maintains smaller secretariats at the province level so as to ensure continuity and oversee annual voter registration updates.
Powers and Functions
The LEMNA grants the NEC wide-ranging powers to prepare and conduct the electoral process. Its core electoral functions include: publishing the election timetable; appointing and supervising lower electoral commissions; preparing, reviewing and validating the voter lists; registering political parties and candidates for elections; conducting polling and counting operations; and establishing and announcing the results. The NEC also has jurisdiction to ‘adopt regulations, procedures and directives for the electoral process within the framework of applicable laws’. The committee has plainly exercised this power in an effort to strengthen and clarify existing legal provisions with a comprehensive, though lengthy and fragmented, set of regulations, directives, instructions and guidelines.
The NEC’s functions also encompass substantial regulatory powers over political contestants, the media and other players. The NEC is required by law to take all measures to ensure fair elections — including monitoring electoral campaigns, ensuring equal access to the media, auditing campaign finances and settling electoral disputes. The LEMNA thus requires stakeholders to comply with the rules and specific codes of conduct developed by the committee. Yet the NEC’s power to regulate the media during elections is undermined by legal uncertainty regarding law enforcement and the imposition of sanctions. The same applies for campaign finance, especially in the absence of any limitations on contributions or expenses.
Furthermore, important electoral functions have been delegated to local authorities that are largely controlled by the ruling party, which calls into question the true independence of electoral administration. With the introduction of a permanent voter registry ahead of the 2003 elections, related amendments to the LEMNA stated that the NEC ‘shall delegate any of its powers to commune councils’ to perform annual voter registration activities on its behalf. The NEC retains ultimate responsibility for ‘reviewing and validating voter lists’ without the effective capacity to do so. Finally, the power to determine the number of seats in the National Assembly and their distribution per constituency rests with a special committee formed by the Council of Ministers, with one representative of each party represented in the Assembly, two officials of the Ministry of Interior and the director of the National Institute for Statistics.
Responsibility for Electoral Justice Processes
Among its key functions, the NEC is responsible for ‘deciding on all complaints and appeals relating to the election, except for those that fall under the jurisdiction of the Court’. For national elections, this jurisdiction is subject to recourse before the Constitutional Council, which rules in final instance. One unique aspect of the Cambodian system is that it grants the NEC quasi-judicial competences as regards penal offences related to elections, notwithstanding possible criminal proceedings. A lack of confidence in the judiciary, among other reasons, accounts for such a choice. As a complement to the law, NEC regulations have established clear jurisdiction for lower electoral commissions in the settlement of electoral complaints. [9] They shall attempt conciliation between the concerned parties before formal proceedings are conducted, and act as critical filters to prevent the congestion of legal services at the national level. Their decisions may be appealed to the next level up to the NEC, and ultimately to the Constitutional Council for National Assembly and Senate Elections.
Despite these valuable features, the adjudication of complaints and appeals remains one of the most contentious aspects of the electoral process. As documented by national and international observers in recent elections, Cambodia’s electoral justice system has failed to remedy the most significant alleged irregularities. Given the environment in which they operate, lower electoral commissions are often reluctant to embark on politically charged proceedings; many complaints are thus summarily dismissed at the entry point, on formal grounds or for ‘lack of evidence’, and complainants may be pressed to accept conciliation even when serious offences are alleged. Despite successive amendments, there remain critical flaws in the applicable provisions, including overly complex procedures, the absence of a general jurisdiction for the NEC to address violations other than specifically listed electoral offences, and unreasonably short timelines for the submission and settlement of post-election challenges. Finally, notwithstanding the competence of its legal services, the NEC is not perceived as an impartial arbiter, particularly as it has failed to enforce sanctions on ruling party affiliates in a number of recent high-profile cases.
Media Relations
In response to a deficit in public confidence, the NEC has made substantial efforts in recent years to improve its external communication strategy, making greater use of a variety of techniques and instruments, notably by its Public Information Bureau. The NEC has improved the dissemination of timely information on the electoral process to all stakeholders through a designated spokesperson, regular press conferences, press releases and posts on its website. During election periods, the LEMNA requires all media to make their services available to the NEC free of charge for voter education and information purposes. Finally, particular attention has been paid to issuing methodical answers to and clarifications of the various reports issued by election observers, development partners and national watchdogs, though often in a dismissive manner that may prove counterproductive.
The NEC’s responsibility concerning the conduct of electoral campaigns includes ‘taking measures to ensure equal access to the public media’. NEC rules include special programming on state television offering equal, though limited, slots to political contestants for their promotion. In addition, the NEC issued guidelines requiring all media to provide pluralistic coverage of the elections and refrain from using inflammatory or offensive language. State media are also given the responsibility to apply principles of equity and distinguish between government and party activity in their news coverage. In practice, however, most broadcast media are controlled by the CPP, which continues to receive overwhelming coverage. The respective responsibilities of the NEC and the Ministry of Information remain unclear as regards law enforcement and the imposition of sanctions. In 2008, the NEC issued warnings to broadcast media for breaking campaign rules but took no further action, despite manifest evidence of continued violations.
Financing and Sustainability
The NEC is funded by the Cambodian Government and donor contributions. With the sole exception of foreign grants, all subsidies must be credited to a dedicated trust fund account of the National Treasury. Since the first NEC-administered elections in 1998, Cambodia has made significant progress toward financial sustainability of the electoral process. While donor funding has been substantial over the years, it has decreased with each election between 1998 and 2013 from nearly 80 per cent of the overall budget to limited donations in kind, as a result of cost reductions and increased government input. Between 1998 and 2003, the budget for elections was cut in half. Costs reductions were driven in part by the reform of voter registration, from a full registration drive conducted anew before each electoral event to a permanent registry updated annually by commune authorities. While enhancing financial sustainability, this move nevertheless resulted in the transfer of critical electoral functions to local authorities dominated by the ruling party. Electoral expenses have increased since: the NEC requested a budget of USD 17 million in 2008 and USD 21 million in 2013. Voter registration was again a factor, as extension of registration periods induced higher costs. International contributions have continued to dwindle, partly due to donor fatigue, stalled electoral reform and the absence of substantial democratic development.
Electoral Reform Management
After two decades of sizeable international assistance, the electoral process in Cambodia still falls short of key international obligations for democratic elections. While the overall conduct of the electoral process has generally improved over time, critical issues that have undermined successive elections since 1998 have remained essentially the same: the independence of the NEC, voter registration and the settlement of disputes, not to mention a political environment that is not conducive to a level playing field. As documented by national and international observers, the parliamentary elections in 2008 had already highlighted the need for further, substantial reform in these critical areas: the electoral campaign saw overwhelming media bias toward the ruling party and widespread abuse of state resources, voter registration flaws left hundreds of thousands disenfranchised on election day, and the dispute resolution system failed to remedy the most significant irregularities. Although minimal adjustments were made to the legislative and regulatory provisions governing voter registration in 2011, these were too late and limited in scope and failed to address well-documented, core shortcomings. As a result, the 2013 elections were marred by the same serious flaws in the registration and identification of voters as previous elections, but their magnitude reached unprecedented levels. Their potential impact on the credibility of the election results has been well documented by the complementary findings of many civil society watchdogs coalesced in the Electoral Reform Alliance (ERA). [10]
Lack of progress was largely due to absence of political will on the part of Cambodian authorities and the NEC to genuinely address any of the key recommendations formulated over the years by national watchdogs, international observer missions and development partners alike. Critical reports were being almost systematically met with dismissive rebuttals, as exemplified in the white paper [11] published by the government in the aftermath of the 2013 elections. Despite its past role in electoral reform, the NEC has put forward a restrictive reading of its mandate that excludes any involvement in debating changes to the electoral legislation, hence depriving the executive and legislature of irreplaceable technical expertise. The last elections have thus contributed to worsening public discredit of an institution now deemed a constitutive part of the problem and in need of complete overhaul.
Notes
[1] Since 2012, Cambodia has had 1,633 Commune Councils.
[2] Acronym (in French) for United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia.
[3] See notably: Electoral Reform Alliance (ERA), Joint Report on the Conduct of the 2013 Cambodian Elections, November 2013.
[4] The constitution guarantees the right to vote or stand as a candidate in a free, universal, equal, direct and secret ballot (articles 34, 76), sets a five-year term for the National Assembly (article 78) and establishes the Constitutional Council as the highest jurisdiction for disputes related to its elections (article 136).
[5] LEMNA, article 12, as amended in 2002.
[6] LEMNA, articles 12, 13.
[7] See COMFREL and NICFEC’s reports on the elections 2003, 2007, 2008, and EU EOM, Final Report on the National Assembly Elections, 2008.
[8] NRP, SRP, HRP and FUNCINPEC, Recommendations for Reforming the Composition of the National Election Committee to Build Trust Among Political Parties Contesting Elections, May 2011.
[9] With the exception of those pertaining to voter registration, which are lodged to Commune Councils.
[10] ERA, Joint Report on the Conduct of the 2013 Cambodian Elections, November 2013. Contributing organisations: Cambodian Human Rights and Development Association (ADHOC), Coalition for Integrity and Social Accountability (CISA), Committee for Free and Fair Elections in Cambodia (COMFREL), Cambodian League for the Promotion and Defense of Human Rights (LICADHO), National Democratic Institute (NDI), Neutral and Impartial Committee for Free and Fair Elections in Cambodia (NICFEC), People Center for Development and Peace (PDP-Center Phnom Penh) and Transparency International Cambodia (TIC).
[11] Office of the Council of Ministers’ Press and Quick Reaction Unit, White paper on the 2013 General Election for the 5th Mandate of the National Assembly of the Kingdom of Cambodia, September 2013.
