Dispute Resolution Mechanisms in the 1998 Cambodian Elections
Introduction
By 1993, Cambodia seemed well on the road to electoral democracy. The 1991 Paris Accords had brought peace between the warring Cambodian factions. The country was temporarily placed under the control of the United Nations, which conducted elections generally considered free and fair in September 1993. A coalition government was formed between the two largest rival parties, the United Front For an Independent, Peaceful, Neutral and Cooperative Cambodia (FUNCINPEC) under First Prime Minister Norodom Ranariddh, and the Cambodian People's Party (CPP) under Second Prime Minister Hun Sen. The next national elections were scheduled for 1998.
Hopes for stable democracy in Cambodia faded, however, when the always-fragile coalition government collapsed. Hun Sen ousted his co-Prime Minister Prince Ranariddh in violent clashes in July 1997. Ranariddh and other opponents of the CPP fled the country and their parties effectively ceased operations in Cambodia as political violence surged.
Nonetheless, with strong urging from the international community, preparations for the 1998 elections began to take shape, though widespread concern persisted over whether they could be free and fair. After lengthy negotiations involving the international community, Ranariddh and other opposition leaders were able to return to Cambodia and begin campaigning.
The election, run by Cambodians this time, proved to be another transitional election in many respects. Democracy had not yet been firmly implanted. The election was conducted with a technical proficiency which drew wide praise from international and domestic observers, while at the same time, the Cambodian government and CPP were criticized for violence and intimidation affecting the election process.
Balloting safeguards were numerous. These included voter photo identification cards, a centralized and computerized voter registration list, metal ballot boxes with locks and tamper-resistant numbered seals, forgery-resistant ballots, indelible ink applied to voters' fingers, and extensive monitoring of the voting and counting by foreign and domestic observers and local political parties. By some benchmarks, the election to this point was a considerable success: over 90% of the eligible population registered to vote; and of those, over 90% actually cast their ballots in a peaceful and orderly fashion.411 Serious administrative shortcomings were few. The CPP was the apparent winner, but with less than a 2/3 majority in the National Assembly, had to seek a coalition partner.
If election day was a moment of triumph, it was soon followed by disaster. Insisting that their numerous complaints about the voting, counting, and results had been unfairly dismissed by the election authorities, FUNCINPEC and other opposition parties rejected the announced results and launched weeks of protest demonstrations, which were met by force from the authorities. Civil discord persisted for months, until FUNCINPEC agreed to form a new coalition government with the CPP. The 1998 elections nevertheless remained tarnished by post-election violence in question because of the post-election violence and lingering suspicions about the validity of the dispute resolution process.
Post-election dispute resolution had proved to be the most critical phase of the entire election. Unfortunately, it was the phase for which all sides were least prepared, organizationally and politically.
Cambodian Election Dispute Resolution Mechanisms
The Cambodian National Assembly Election Law, adopted in December 1997, provided extensive, even elaborate, dispute resolution mechanisms. Two bodies were charged with election dispute resolution. The first was the National Election Committee (NEC), which, per the election law, was to be an independent and impartial panel charged with organizing the elections.
The NEC was granted responsibility for resolving most election disputes in the first instance. Under the law, the NEC was to be composed of eleven distinguished citizens. The Chair and Vice Chair were to be distinguished professionals; each of four political parties represented in the National Assembly was to have one representative; the Interior Ministry would have two representatives; two 'citizens' representatives' and one representative of the non-governmental organizations were also designated. Under the law, the list was to be proposed by the government and approved by the National Assembly.
This formula for NEC membership was agreed between FUNCINPEC and CPP representatives in an apparent effort to accomplish two contradictory aims: political balance and impartiality. However, FUNCINPEC and other opposition parties objected strenuously to the actual final list of NEC members, which, it maintained, had been stacked with a majority in favor of the CPP by the government and National Assembly, both of which the CPP dominated. Similar concerns about bias were expressed about the NEC's subordinate bodies, the Provincial Election Commissions (PECs) and the Commune Election Commissions (CECs), which under the law were named by the NEC and empowered to resolve election disputes within their respective territories.
The second key body with responsibility for election dispute resolution was the Constitutional Council (CC). The 1993 Cambodian constitution provided that 'members of the Constitutional Council shall be selected among the dignitaries with a higher education degree in law, administration, diplomacy, or economics and who have considerable work experience.' Among other tasks, the Cambodian constitution assigned the CC authority to resolve national assembly election disputes. The election law elaborated on this authority by giving the NEC original jurisdiction over election disputes, while the CC retained final appeals authority.
The CC was composed of nine members: three appointed by the King, three by the National Assembly, and three by the Supreme Council of the Magistracy, the governing body for judges. Like the NEC, the CC was hounded from the start by accusations that its membership was biased in favor of the ruling party, since both the Supreme Council of the Magistracy and the National Assembly were widely considered to be dominated by the CPP.
Formal Dispute Resolution Procedures
Formal dispute resolution procedures were elaborated in the election law and procedures. Regarding registration, a registrar's decision to register or deny registration to anyone could be appealed to the Provincial Election Commission, then to the National Election Committee, and finally, to the Constitutional Council. The NEC was authorized to hold public hearings. Voters had three days to make their complaints or appeals; and the PECs, NEC, and CC had five days to resolve them.
With respect to disputes concerning the voting, counting, and results of the elections, the procedures were more complex. Complaints were supposed to be filed on the spot at the voting station by party representatives. The polling station president was to resolve them immediately; objections were to be noted on the appropriate form and conveyed to the Provincial Election Commission, which in turn would send them to the National Election Committee for resolution. (The law was not explicit about complaints concerning the counting, which was done at commune-wide counting stations, but a parallel process was employed.) In fact, few official complaints were registered at the polling or counting stations.
The NEC permitted complaints to be submitted directly to its national headquarters within 72 hours after the polling. Under the election law, if the NEC found that there were 'serious irregularities that affect the results of the election', it must refuse to recognize the results and hold new elections in the affected area within eight days. Otherwise, it would announce its recognition of the results.
In addition, the parties were allowed under the law to appeal against the provisional results announced by the NEC within 72 hours. The NEC was then given 48 hours to rule on the appeal; if it found that the complaint had reasonable grounds, it must hold a public hearing. A final appeal could be made to the Constitutional Council within 72 hours of the NEC's decision. The Constitutional Council was granted 10-20 days by the election law to decide on the final appeal.
In addition to the formal dispute resolution mechanisms described above, there were various informal channels for resolving disputes which proved highly important in view of the new and untested character of the election law and procedures and the contentious, politically charged nature of the process. Some issues were resolved through direct lobbying of the NEC or individual NEC members by political parties, local non-governmental organizations, or government representatives. The opposition parties reinforced their complaints by frequent statements of protest soliciting national and international support and by intermittent threats to boycott the election unless their concerns were satisfied.
The foreign diplomatic and donor community was extremely active in raising issues affecting election fairness with the NEC in weekly meetings as well as in individual contacts. Members of the international diplomatic community often acted as intermediaries between the NEC, government and the opposition parties, seeking solutions acceptable to all sides so that the election process could go forward and meet accepted international standards.
At the local level, some Provincial Electoral Commissions held informal weekly meetings with the political parties, election observers, and others in order to resolve disputes in a timely and informal fashion. The Provincial Election Commissions even received training in conflict resolution from a local non-governmental organization.
Dispute Resolution in Practice
Most of the disputes during the election process consisted of complaints by the opposition parties against actions by the government, the CPP, or the NEC and its subordinate bodies.
There were some 6,000 voter registration complaints, mostly alleging that persons ineligible to vote had been improperly registered. The process for submitting complaints about registration was explicit and required the use of specific forms. The complaints were largely raised by opposition political parties rather than individuals, and most complaints were submitted contrary to the election law directly to the NEC rather than to the relevant Provincial Election Commission.
The reasons most often advanced for this deviation from procedure were that the opposition parties felt they would receive fairer treatment from the national NEC than from local bodies, which were considered more biased; voters and voter registrars were not well-informed about appeals procedures and the registrars were not helpful; and opposition supporters feared retaliation if they challenged local authorities, mostly CPP, directly.
The NEC was able to respond to many of these complaints. In the two-month period between the beginning of voter registration in mid-May 1998 and the elections on July 26, 1998, the NEC canceled the registration of 1,793 voters it determined were ineligible. 412 Public hearings were held in some instances. Most of those whose registrations were canceled were ethnic Vietnamese deemed ineligible to vote and presumed to be sympathetic toward the ruling CPP.
The NEC dealt with a far broader spectrum of complaints than the technical issues revolving around registration, voting, and counting. Indeed, few aspects of the election law, procedures, and NEC decisions went unchallenged by the opposition parties. For example, although the election law provided for counting ballots at the polling station, the opposition preferred counting at the commune or even provincial level because it felt that counting at the polling station would be more subject to intimidation or violence and less amenable to effective monitoring. The NEC was unwilling to change the counting location on its own authority, which it arguably could have done, but NEC members urged the foreign diplomatic community to raise it with the government.
The government in turn obtained an amendment to the election law by the National Assembly to move counting to the commune level, which nonetheless did not satisfy some opposition figures. With respect to other complaints on matters such as equitable access to media by political parties and counting procedures, the NEC was responsive to the opposition on some issues, and not on others. For instance, at the urging of local non-governmental organizations, the NEC scheduled free television and radio spots for all political parties for noon and evening hours when a large audience would be available, rather than during morning hours as it had originally proposed. The NEC did not, however, eliminate the ruling CPP's strong advantage over the opposition in broadcast news time.
The NEC was less successful in responding to complaints about activities outside its own operations, such as allegations of intimidation and violence by government and ruling party officials. Although the election law banned vote-buying, intimidation, and other offenses, the NEC had no law enforcement powers or resources, and had to request investigation and action by the government, which were not always forthcoming.
The NEC complaints about violence and intimidation in other ways, such as dismissing the odd local election employee and reprimanding a few local government officials. The NEC also drew up a security plan for the elections, which was successfully implemented by the military and police, and participated in the training program for thousands of these election security officials through a local non-governmental organization. Finally, the NEC prepared and promoted a nationally distributed message, in both written and audiotape form, by the widely revered King of Cambodia, Norodom Sihanouk, in which he appealed for peaceful and honest elections and urged people to vote.
Voting and counting ran smoothly, so much so that they are counted as the NEC's greatest achievement. In contrast, the resolution of complaints following the election was the NEC's moment of disaster. Political tension at this point was extremely high, as the political parties awaited the results. The first returns showed the CPP as victor. The opposition parties then launched a blizzard of formal complaints, eventually numbering about 800, directly with the NEC, and later, to the CC on appeal.413
The complaints dealt with a variety of alleged offenses in the voting, counting, and tabulation of results, including, among the more serious allegations, the denial of the parties' right to have sufficient observers at the voting and counting; deliberate miscounting of votes; other forms of fraud; and intimidation of voters. (Most of these complaints were not supported by the observations of the approximately 800 foreign and 21,000 domestic election observers, but some observer groups did call for a full examination and resolution of the complaints.)
The opposition parties presented related demands: that a full reconciliation of ballots take place; that recounts be held in about 800 of the over 1600 counting centers; that new elections be held in select areas; and that the method of calculating the distribution of legislative seats among political parties revert to one the NEC had published earlier, but subsequently revised a month before the election. The earlier method would have given fewer legislative seats to the CPP.
The NEC maintained with some credibility that the first method contained an error which it had simply corrected when it republished the regulations. But this explanation was regarded with deep suspicion by the opposition parties. As a demonstration of their resolve, the main opposition parties rejected the election results and vowed not to permit the convening of the National Assembly until their complaints were satisfactorily addressed.
The NEC informally and quietly resolved a few of the post-election complaints, but overall its complaint resolution process utterly failed to satisfy the opposition parties. The complaints process unfolded in at atmosphere of extreme rhetoric. Charges of massive fraud and coverup were leveled. The NEC conducted recounts of the results for eight counting centers considered by the opposition to be among the most suspect. The recounts varied only trivially from the original counts. However, the recounting was abruptly stopped at that point, far short of the 800 counting centers demanded by the opposition. Shortly thereafter, the NEC summarily dismissed all of the opposition parties' complaints without hearings as unsubstantiated or baseless. The opposition responded with demonstrations.
The opposition parties immediately appealed to the Constitutional Council in an episode marked by a great deal of confusion and acrimony over filing deadlines, procedures, and the proper form for making complaints. Citing technical deficiencies in the submissions, the Constitutional Council declined to consider all but 17 of the approximately 800 complaints presented. These 17 it investigated and then dismissed. Although permitted by law to conduct public hearings, the CC did not do so.
The opposition parties rejected the Constitutional Council's decision and intensified their street protests. After initially tolerating the demonstrations, the police forcibly dispersed them, with injuries and loss of life resulting. After months of stalemate, the largest opposition party, FUNCINPEC, agreed to join a coalition government with the ruling party in November 1998. FUNCINPEC received a number of Ministries but dropped all its election-related complaints. The other major opposition party, the Sam Rainsy Party, did not join the government and did not renounce its electoral complaints.
Successes and Failures of the Dispute Resolution Process
The resolution of complaints preceding the 1998 Cambodian elections can be termed reasonably successful. Not all the NEC's decisions pleased the government or the opposition, but they were grudgingly accepted de facto and the election process proceeded. Although the registration process started chaotically in some areas and generated numerous complaints, the month-long registration period was time enough to allow the NEC to take corrective measures, and gain experience and confidence. Appeals were dealt with, though rarely within the tight time frame provided by law.
On broader policy issues such as violence, intimidation, and media access, the NEC had little in the law or elsewhere to guide it, and did not fully satisfy the concerns of the opposition parties. Still, the mix of lobbying from all sides, foreign advice and the NEC's own spirit of problem-solving enabled the NEC to make compromises tolerated by all sides. The relatively open, methodical, professional and impartial handling of pre-election complaints by the NEC lent credibility to the election process to that point.
In contrast, the NEC's dismissal of the post-election complaints did not put an end to them but rather added fuel to the fire. The NEC's inadequately prepared, disorganized, closed and unresponsive dispute resolution process was seen by the opposition as unfair and partisan. The credibility of the election process was compromised at the precise moment when the public demand for absolute integrity was at its zenith.
Inadequate Administrative Preparation
The most obvious reason for the failures of post-election dispute resolution was inadequate administrative or technical preparation. The NEC and the CC and indeed the political parties themselves were ill-prepared for this phase of the process. The parties were not well trained or prepared to draft and file complaints in a timely and correct fashion. They had great difficulty in gathering the necessary information quickly to formulate their complaints.
For their part, the NEC and CC were unable to deal effectively with the flood of 800 complaints which reached them after the elections, as they had neither resources nor staff to do so in the time allotted by law. They were also unprepared procedurally. The NEC subcommittee charged with the resolution of post-election disputes was not even formed until the election was over. Detailed procedures for dispute investigation and resolution were not in place. These procedures were finally written on the fly after the elections, even as improvised solutions such as selective recounts were already underway. The procedures for submission and resolution of post-election complaints were neither clear nor well-publicized. Many complaints were rejected for missing deadlines or incorrect formats.
A further factor not to be discounted was that all those involved in the election election authorities and party officials alike were exhausted and short-tempered by the time the post-election disputes arose.
In sum, those involved in the elections did not recognize the importance of the post-election dispute resolution. Relatively little preparation had been made for this phase of the process, in contrast to the enormous attention paid to organizing the voting and counting. The post-election dispute resolution was not, as the Cambodian election authorities might have imagined, a mere denouement or tying up of loose ends: it was the climax of the process, the election's decisive moment.
Shortcomings in the Election Law
In certain respects, shortcomings in the election law worsened the organizational and administrative problems of post-election dispute resolution. Parts of the law were better suited to well-established democracies than transitional situations. The election law's deadlines for submission and adjudication of complaints often 48 or 72 hours were unforgivingly strict in a country where communications are poor and personnel inexperienced. The political parties and the NEC were put under intolerable time pressure. They simply did not have time to deal properly with the huge number of complaints that arose in the time allotted. In addition, the election law specifically foresaw only one remedy for defects in the election process a new election in the affected area, whereas a wider array of methods, including recounts or simply invalidating the results in some areas might have been specifically envisioned.
Competence, Neutrality and Impartiality of Election Bodies
Some of the problems of the election dispute resolution process in Cambodia's 1998 elections went beyond the purely technical and administrative. One such was the nature of the responsible election organs the NEC and the CC. While the NEC was composed of accomplished individuals, most had little or no experience in election administration. This was understandable and unavoidable, since the 1998 Cambodian elections were the first real polls run by Cambodians in many years. The lack of experience was partly compensated for by the dozen or so expert foreign advisors assisting the NEC.
The Constitutional Council had a similar problem. The Cambodian constitution of 1993 allowed appointments to the CC of persons with university degrees in economics, administration, or diplomacy, as well as law. However, the CC's main task was to perform complicated legal analysis and interpretation, a task which proved daunting for the non-lawyers who were a majority on the CC. It would have been preferable to require all CC members to have an extensive legal background. This admittedly would be difficult to impose in contemporary Cambodia. There were few lawyers before 1975 and their ranks were decimated by the Khmer Rouge regime. With more experience and training, both the NEC and CC can be expected to acquire greater skill over time.
A more fundamental question raised in the 1998 Cambodian election was the impartiality and independence of the NEC, its subordinate bodies, and the CC. These requisite qualities were written into the Cambodian election law. In practice, they proved difficult to achieve. In Cambodia's highly polarized political scene, the truly impartial were hard to find. Additionally, complete independence is difficult to achieve where, as in Cambodia, one faction is dominant, the legal system is weak, offering little protection against the powerful, and the use of threats or force in politics is common. Under such circumstances, formally independent institutions or individuals can be vulnerable to pressure despite their own best intentions.
In reality, the NEC came closer to the ideal of neutrality and impartiality than might have been expected. Most NEC decisions were technically appropriate and provided little evidence of bias. Intense public scrutiny, pressure from the international community, and the members' own ethos of public service were a counterweight to partisan pressures.
Nonetheless, from the viewpoint of the opposition, the NEC (and the CC) were fatally flawed from their first day because their membership had been constituted in a way which apparently favored the government and the ruling CPP. Hence the opposition's constant suspicion of the election authorities and eventual rejection of the unfavorable election results were, if not inevitable, at least predictable. The perception of bias on the part of the NEC and CC was as damaging than any actual bias.
Remedying bias or perceived bias in the election organs would not have been easy. The election law and the formal process of selection of NEC and CC members were accepted by all sides, yet proved insufficient to ensure impartiality or political balance. Because of Cambodia's weak legal system, the actual selection of members was readily subject to manipulation. Some of the manipulation was perfectly legal using constitutional bodies (dominated by the CPP) and processes to produce an outcome which favored one side.
Other acts alleged to have been committed, such as bribery, pressure, and misinterpretation of the law, may have been extra-legal. But the absence of meaningful institutional checks and balances meant that such manipulation could not easily be prevented. The international community could have been a countervailing force with regard to the manipulation of NEC and CC membership, but did not exert itself. Ironically, its restraint may have been due to too much respect for the law: the formation of the NEC and CC had, for the most part, followed due process and the full NEC membership roster was approved by the duly authorized constitutional authority, the National Assembly. Nonetheless, the membership list was considered unfair and unacceptable by the opposition.
A simpler and better approach to election bodies in transitional situations might lie in requiring the membership lists to be agreed by a consensus of all major factions, instead of inventing complex formulas which attempt to guarantee impartiality or political balance or a combination of the two. Such formulas, as shown above, can be circumvented.414
Following the Law is not Enough
Since in established democracies elections are a matter of following prescribed legal procedures, it may seem surprising to assert that following the law is often not enough in transitional elections like Cambodia's in 1998. In such instances, the law itself may have little force and little meaning or importance to many of the participants. The election law is likely to be new and untested, and may contain unsuspected flaws. It may be neither understood nor respected. The parties may have little faith in the technical safeguards the law and procedures provide and little trust in the election authorities and each other. This may be combined with a keen sense of when they are being disadvantaged and insistence that the situation be rectified regardless of the letter of the law. Thus the rote application of the law may not resolve conflicts but rather inflame them.
In the Cambodian case, it may, for example, be argued that the NEC was acting correctly and according to the letter of the law when it dismissed all post-election complaints. But in the real political world, dismissal was profoundly mistaken: it simply reinforced the opposition perception of NEC unfairness and prejudice. The NEC and CC, under pressure from the CPP, rushed to wrap up the election results, with disastrous consequences. The election authorities would have been wise to have gone the extra mile to persuade all sides of the fairness of the dispute resolution process.
A more open, public, collaborative, measured, flexible and negotiated approach to solving post-election disputes indeed to the entire election process might have led to a less explosive conclusion. This course would have been far from easy, given that the other players in the election were using pressure and intimidation, emotional public appeals, and confrontation in order to try to get their way. It may be that the losing parties, whoever they were, were simply unprepared to accept its loss in the election, however legitimate the process, at least without putting up a struggle.
Transitional Elections are Different
Many of the problems with Cambodian election dispute resolution stem from a single and fairly simple observation. Transitional elections are very different from those in well-established democracies. The structures and forms which satisfactorily govern elections in many places are backed by real and accepted authority. They are applied vigorously, neutrally, and effectively. A high degree of trust exists in the election process and between the participants. In contrast, in transitional situations such as Cambodia's, deep mutual distrust and partisanship on all sides is the rule; the idea of adhering to the laws and regulations may have little meaning or value to participants; the rule of force may predominate over the rule of law; and winning by any means may be the objective. Transitional elections may look more like one battle in a no-holds-barred struggle for power than a well-established and agreed system for determining who governs.
In Cambodia's case, the formal mechanisms and procedures for resolving election disputes were basically well designed, but took relatively little account of the fact that this was still very much a transitional election with dynamics quite different from those in established democracies. The dispute resolution mechanisms in place did not anticipate the magnitude of the conflicts that would arise nor how crucial they would prove. Accordingly, insufficient attention was devoted to preparing in advance for the dispute resolution phase of the elections.
But even an administratively improved dispute resolution system would not have been enough in itself to ensure an orderly and accepted outcome of the process. Institutional weaknesses, an all-or-nothing style of politics, and participant attitudes inconsistent with the spirit of democratic elections would still have made an orderly outcome uncertain. Only the most sensitive and statesmanlike actions by the NEC and Constitutional Council or greater restraint by the political parties might have saved the Cambodian elections from its bloodstained and ignominious conclusion, but in the heat of crisis, these were not forthcoming.
