Can the Cambodian People's Party form the Royal Government?

Guest blog by Anirudh Bhati
This article was updated at 1230 hrs on 9 August 2013.
The Reuters News Agency reported yesterday:

A quorum of 120 out of 123 lawmakers was needed to launch a new national assembly before the approval of a new cabinet, said attorney Sok Sam Oeun, executive director at Cambodia Defenders Project, an organization that offers free legal aid.

Hun Sen maintains that a 2006 amendment would allow his ruling CPP, given the number of seats it says it won, to start the process alone without the CNRP.

Sok Sam Oeun disputed that, saying the amendment does indeed allow the approval of a new government with only 63 lawmakers present but, before that stage, at least 120 had to approve the start of a new parliament.

These comments by a Cambodian lawyer Sok Sam Oeun, who works with the Cambodian Defenders’ Project, have raised a storm on social networking sites such as Facebook, where Cambodian National Rescue Party (CNRP) supporters are visibly upset regarding the Prime Minister’s statements that the Cambodian People’s Party (CPP) will go ahead to form the Royal Government with or without the participation of the opposition parties in the National Assembly.
While the official results are yet to be declared by the National Election Committee (NEC), which is the national body responsible for the organization of electoral polls, the Ministry of Information released preliminary results saying that the ruling CPP had secured 68 seats while the rival CNRP managed to get 55 seats out of the 123 seats in the National Assembly.
The Constitution of Cambodia [English: PDF] came into force on 24 September 1993 after two decades of civil war and strife.  The outline for the creation of the Cambodian state and its legal system was envisioned in the Paris Agreements.  The Paris Agreements resulted in the creation of the Constituent Assembly which later transformed itself into the National Assembly.  The Assembly was initially composed of 120 members.  The Permanent Committee on Drafting the Constitution, composed of 13 members (and 8 reserve members), was chiefly responsible for the preparation of the draft of the Constitution which was later reviewed and endorsed by the Late King Norodom Sihanouk resulting in the creation of a constitutional monarchy.
There are a some articles of the Constitution which are most relevant for the resolution of the imbroglio around the “quorum” required for validating the first session of the National Assembly.

Article 76 (CC)

The National Assembly shall comprise of at least 120 members.

The Members of the National Assembly shall be elected by universal, free, equal, direct suffrage and secret ballot.

The National Assembly’s members are re-eligible Khmer citizens of both sexes, enjoying the right to vote, aged at least 25 years and having Khmer nationality by birth, have the right to be candidates to the National Assembly.

The organization in charge of preparing the elections, their modalities and functioning shall be determined by electoral law.

(emphasis mine)

Article 82 new (CC)

The first session of the National Assembly shall open sixty days at the latest after the elections, upon the convening by the King.

Before starting its works, the National Assembly shall declare the validity of each Member’s mandate and shall vote separately to elect its President, its Vice-Presidents and all the Members of its various Commissions, by an absolute majority of all its Members.

The National Assembly shall adopt its Rules of Procedure by an absolute majority of all its Members.

Before taking office, all the National Assembly’s Members shall take oath according to the text written in Annex 5 of the Constitution.

(emphasis mine)

Article 88 new (two) (CC)

The National Assembly sessions shall be public.

The National Assembly can convene in camera at the request of the President or at least one-tenth of its Members, of the King or of the Prime Minister.

The session of the National Assembly is only valid, when there is:

(a) the quorum of over two-third of all its Members for the votes requiring the majority of two-third of all its Members.

(b) the quorum of over half of all its Members for the votes requiring the absolute majority of all its Members.

(emphasis mine)

Article 90 new (two) (CC)

The National Assembly is an organ invested with legislative power which exercises its functions according to the provisions of the Constitution and the laws in force.

The National Assembly votes the national budget, the State planning, the borrowings, the lending, the various pledges of financial warranties, and the creation, modification or abolition of taxes.

The National Assembly approves the administrative account.

The National Assembly votes the amnesty law.

The National Assembly votes the law on war declaration.

The aforementioned votes must obtain the absolute majority of all the National Assembly’s members.

The National Assembly grants a vote of confidence to the Royal Government at the absolute majority of all its Members. 

(emphasis mine)

The portions which I have highlighted above are of utmost relevance and will aid us in determining the plain meaning of the terms and even the original intent of the drafters of the Constitution.  Article 76 sets the minimum number of Members that the National Assembly requires to form at 120.  Article 82 stipulates that the National Assembly shall declare the validity of each member’s mandate prior to beginning its sessions, and it also requires that the membership be administered an oath before they take their office. Article 88 addresses the definition of “quorum” requisite for validating a session of the National Assembly and the conditions under which a bill/proposed legislation or a vote of confidence may be passed.  Article 90 mandates that the National Assembly must grant a vote of confidence to the Royal Government at the absolute majority (over 50%) of all its members.
Now, what is quorum?  According to Law.com, quorum is:

“the number of people required to be present before a meeting can conduct business.  Unless stated differently in bylaws, articles, regulations or other rules established by the organization, a quorum is usually a majority of members.  A quorum for meetings of corporate boards of directors, homeowners’ associations, clubs and shareholders meetings are usually set in the bylaws.  The quorum for meeting of governmental bodies such as commissions and boards are usually set by statute.” (emphasis mine)

In accordance with the doctrine of statutory construction, the plain and straightforward meaning of the words of a statute (or law) is given primacy over any application of other interpretative canons or principles.  The Articles of a constitutional document have to be read in context, as a whole, rather than as separate portions.  Article 76 of the Constitution of Cambodia does not contain the term “quorum”.  It simply defines the minimum number of Members of the National Assembly in its first sentence.   However, the term quorum is used in Article 88 new (two), where conditions requisite for the validation of a session of the National Assembly are laid out.  Furthermore, Article 90 mandates that the Royal Government must receive a vote of confidence in the National Assembly with an absolute majority (over 50%).
The National Assembly has a strength of 123 members at this point of time.  Therefore, any party or a coalition of parties that intend to form the Royal Government must receive a ‘vote of confidence’ by absolute majority in the Assembly in accordance with the requirements laid out in Article 90 new (two).  In order for the session to be valid and the vote of confidence to pass, at least 62 of the members must be present and voting in favour of the motion.  The express determination of the term ‘quorum’ for the purpose of validation of a session of the National Assembly is made in Article 88, hence the attempt at creation of a ‘super-quorum’ requirement or a manufactured condition on top of the constitutional requirements is simply disingenuous.
The Constitutional Council of Cambodia, in a decision from 2003, said that:

“[…] there shall be at least 120 deputies to be able to form the National Assembly at every legislature.  Electoral law cannot limit the number of parliamentarians to less than 120.  This paragraph 1 [of Article 76] is a necessary condition for the formation of a National Assembly but not for its functioning.

At the end of the election, the final result must give 120 deputies or more according to the number fixed by the Electoral law in order to be able to form a National Assembly of a new legislature in respect to the procedures provided in the article 82 of the Constitution and article 3 of the Internal Regulations of the National Assembly.  The National Assembly resulting from the election shall officially take function at the inaugural session convened by the King and after the validity of parliamentarians proclaimed, whose names are publicly posted at the National Assembly office. […]

[…] even though the parliamentarian numbers are less than 120, but not inferior to 7/10 quorum of the National assembly, the latter will be still able to function normally, especially, in its ordinary or extra-ordinary plenary session until the new National Assembly enters into function without contravening the Constitution.”

(emphasis mine)

With regard to the above decision by the supreme arbiter of the Constitution, the final result of any elections must give at least 120 Members in order to form a new legislature.  Article 95 of the Constitution stipulates the process for replacement of a Member who is deceased, has resigned or has lost their membership at least six months before the end of the term of the legislature.  The National Assembly can continue functioning normally as long as the the number of elected legislators, regardless of their physical presence or absence in the Assembly, remains above the quorum of 7/10 (86 or above).
What happens if CNRP representatives decide to boycott the inaugural session of the National Assembly?
As per Article 82, the Members may take office once their membership has been validated by a declaration in the National Assembly and after they have been administered an oath under the procedure prescribed in the Constitution.  If the elected CNRP representatives refuse to be present and be administered the oath in the inaugural session, they may not be able to take office and conduct their official business as Members of the National Assembly.  They will, however, still be considered elected representatives and the constitutional requirement of having a minimum of 120 MPs will still be satisfied.  The National Assembly is formed when the election results are declared by the NEC (see the decision by the Constitutional Council).  The Constitution prescribes no special status for the inaugural session.  It is the first session of the legislature where the newly elected law makers are invited by the head of the state for the validation of their candidacy.
What happens if CNRP representatives decide to resign, withdraw or abandon their elected candidature with the National Assembly?
If one or more candidates indicate their intention to resign, then in accordance with Article 95 of the Constitution, Article 120 of the Law on the Election of the Members of the National Assembly (LEMNA) and Principle 83 of the  Internal Regulations of the National Assembly (IRNA), the relevant party will be obligated to make the submission of the name of a replacement candidate, failing which the NEC may re-allocate the seats among the remaining parties or a by-election may be declared and organized by the NEC if it fails to re-allocate within seven days of such wilful abandonment of seats in accordance with the LEMNA.

Article 120 (LEMNA)

If a National Assembly Member loses his/her membership at least six (6) months before the ending of the legislative term, the concerned political party may propose an appointing replacement by choosing another candidate whose name appears on the same party’s list, in the next descending order without holding a by election.

Article 95 (CC)

In case of decease [death], resignation of a National Assembly’s Member or loss of his/her membership which would take place at least six months before the end of the legislature, his/her replacement must proceed in the conditions set by the National Assembly’s Rules of Procedure and by the Electoral Law.

Principle 83 (IRNA)

The seat of a MP left vacant because of resignation, abandon of work for three months without permission or death must be replaced by a new MP chosen from the list of candidates representing the party in the same constituency.

(emphasis mine)

In a scenario where four or more elected CNRP representatives express their intention to resign and hence bringing the number of elected representatives to a number less than 120, the inaugural session will still continue unhindered.  This is provided for in Article 3 of the Special Constitutional Law (SCL) promulgated in 2004 with the intent to “ensure the regular functioning of the national institutions” and also for the avoidance of the possibility of a political impasse.

Article 3 (SCL)

In case when the procedures stipulated in the Articles 82 and 119 new of the Constitution can not be implemented, the National Assembly, on the proposal of the majority political party, can proceed with the package vote to elect its President and its Vice-Presidents as well as the Chairpersons and ViceChairpersons of the Commission, and at the same time to grant the confidence to the Royal Government.

Can the NEC re-allocate the seats of the CNRP representatives who do not attend the inaugural session?
The pertinent law that stipulates the process of replacement of the members of the legislature is Article 120 under Chapter IX of the LEMNA.

Article 120 (new) (LEMNA)

The Members of the National Assembly shall lose his/her membership in the following events:

– He/she dies;

– He/she loses his/her professional capacity as certified by the competent ministry;

– He/she resigns from the National Assembly Membership in writing;

– He/she is convicted of criminal or misdemeanor act;

– He/she loses his/her membership from his/her political party.

If a National Assembly Member loses his/her membership at least six (6) months before the ending of the legislative term, the concerned political party may propose an appointing replacement by choosing another candidate whose name appears on the same party’s list, in the next descending order, without holding a by-election.

(emphasis mine)

The LEMNA contains provisions that allow for the reallocation of the seats by the NEC when a party decides to willfully abandon its seats.

Article 118 (new)

E) In case a political party received one (1) seat or more in the National Assembly, but this party declares to abandon its seat(s) in the National Assembly or has its [candidacy] stripped of from the list of political party’s list in accordance with the Law on Political Parties, the party’s list or the candidate on such party’s list that has been declared elected, is no longer valid or qualified.  In such a case, the National Election Committee shall apportion the vacant seat within seven (7) days to other political parties that have received seat(s) in the same province/municipality, excluding the political party that has abandoned its seats(s), […]

(emphasis mine)

Article 118 (new) of the LEMNA further prescribes a formula for the reallocation of the seats.
The NEC may re-allocate the seats of the elected CNRP representatives if they resign or wilfully abandon their seats and the party does not put forth the names of replacement candidates.  If the NEC is unable to re-allocate the seats within seven days, the legislative intent in Article 120 is clear inasmuch as the article’s reference is to a by-election.  The NEC may declare a by-election to be organized after the Royal Government and the Council of Ministers have been sworn in at the inaugural session of the National Assembly.
Comparing Constitutions – international perspective
The Drafting Committee of the Constituent Assembly of Cambodia were clearly inspired by other working, modern constitutions from which they imbibed principles of natural justice and equity, of personal freedoms and other individual liberties and incorporated them in their own draft to pave the way for the construction of a modern Cambodian state.  Therefore, it is equally important to observe other constitutional systems around the world in order to understand the intent of the drafters of the Cambodian constitution.  In the following cases, you will find that similar articles were only included with the intention of specifically defining the size of the respective assemblies, rather than placing a mandatory requirement on quorum strength for the inaugural, ordinary or extra-ordinary sessions of legislative bodies.

Article 24 of the Constitution of the Fifth French Republic states:

“Members of the National Assembly, whose number must not exceed five hundred and seventy-seven, shall be elected by direct suffrage.”

This article does not make any reference to quorum.  Other sections in the document contain terms such as “majority”, “absolute majority”, “three-fifths majority” etc have been used.

Article 1, Section 2 of the US Constitution (incorporating the changes made by the Fourteenth Amendment) says:

“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

Article 1, Section 3 of the US Constitution says:

“The Senate of the United States shall be composed of two Senators from each State […]”

The term quorum has been defined separately in Article 1 section 5, Article 2 section 1 and the Twelfth Amendment.
Articles 80 and 81 of the Constitution of India mandate the composition of the Council of States (Rajya Sabha) and House of the People (Lok Sabha) limiting the number of MPs in the Council of States to 250 and the House of the People to 550. In practice, there are only 245 members in the Council of States and 545 members in the House of the People. Article 100 defines quorum for the purpose of voting by members in both of the houses.
Inference
Given the legal provisions produced above and through my own analysis, I would like to humbly put forth that Article 76 ought to be read in the manner it has been drafted.  The quorum required for validating a session of the National Assembly has been defined under Article 88.  Therefore, the CPP can form the Royal Government without the support of the parties in the opposition provided that it retains at least 62 seats in the National Assembly.  In case there are less than 120 MPs, due to the possibility of resignation in protest by the elected CNRP representatives, Article 3 of the Special Constitutional Law will apply, and the Royal Government may be formed and the Council of Ministers appointed in the inaugural session of the Assembly itself in accordance with Article 3 of the Special Constitutional Law.  The NEC may not re-allocate the National Assembly seats of the representatives who are not present during the inaugural session of the legislature.  Article 118 of the LEMNA allows for re-allocation of the seats to other political parties from the same constituencies in the event the seats are abandoned by another political party.
Anirudh Bhati is a legal consultant based in Phnom Penh, Cambodia.  He studied comparative constitutional law at Gujarat National Law University, India.  This text simply comprises of research and personal opinion, and should not be construed as legal opinion or advice of any kind.  If you wish to seek formal legal opinion or advice on matters of Cambodian law, please consult an attorney qualified to practice in the Kingdom.