Contextualism and the Constitution of Cambodia

Guest blog by Anirudh Bhati
The fifth mandate of the National Assembly of the Kingdom of Cambodia was inaugurated in September 2013 with the reappointment of Prime Minister Hun Sen as the head of the government.  It appears to me that the disputations surrounding the formation of the National Assembly will continue to refuse to die out.  There are several academicians, lawyers and civil society representatives who have claimed that in accordance with Article 76 of the Constitution and the 2003 decision of the Constitutional Council on the matter of the formation of the National Assembly, it is abundantly clear that the lower house of the legislature requires the presence of at least 120 members out of the maximum 123 during the inaugural session of the assembly.
For those of you who have been following this blog and specifically my previous post on the subject of the Cambodian constitution are aware that I do not claim to possess any specific expertise on the subject of Cambodian constitutional law.  In fact, the recent elections have allowed me to delve deeper and deeper into the subject with ample support from the community of lawyers in Phnom Penh who have provided me their comments.  My observations are my own personal opinions and should not be construed as legal advice of any kind or manner.  However, I am a trained lawyer qualified to practice in my home jurisdiction and have invested a considerable amount of time as a part of my training learning the subject of constitutional law, including comparative constitutional law, and application and interpretation of constitutional principles.
In this post, I do not wish to ramble on through a wall of text which may render this text unsuitable for scrutiny and examination by the layperson and therefore, I promise to remain as succinct and brief in my commentary as possible.  I do wish to emphasize, however, that the law remains an instrument of reason, of justice and liberty.  Law creates order and good law creates good order.  As long as the law remains the exclusive domain of a few experts and specialists, it will continue to retain an aura of obscurity and will be viewed by the public with doubt, uncertainty and even suspicion.  Societies where the law is ambiguous and unclear are ones which are ruled by the arbitrary whims of men, in the complete absence of the rule of law. This is not the case with the Constitution of Cambodia which was prepared as a result of the 1991 Paris Peace Accords imbibing principles of natural justice and equity, guaranteeing individual rights and providing for a limited government.
It has become a rather common retort, even among qualified lawyers and legal professionals, to reduce the status of contradicting legal analysis and argumentation by labelling the law as “ambiguous” and hence “open to interpretation”.  Essentially, everything is open to interpretation as long as lawyers are involved. This is a dangerous situation where the perpetuation of confusion inspires deep mistrust among the members of the public in the entire process of the law.
A coalition of non-governmental organizations in Cambodia have invoked the 2003 decision of the Constitutional Council to determine that the actions of the National Assembly convening with 68 members belonging to the Cambodian People’s Party (CPP) were in contravention to the provisions enumerated in the Constitution.  You can access a copy of the document here [English: HTML].
The Joint Analysis, produced by the coalition of non-governmental organizations, includes reading which is both idiosyncratic, especially due to their strategic redaction of important language, and more importantly, incorrect.  Quoting their analysis:

The Constitutional Council has affirmed that the formation of the National Assembly is a distinct process from the future functioning of the NA.  (Constitutional Council resolution No: 054/005/2003 kor. bor. thor. chor. August 22, 2003):

Paragraph 1 of the Article 76 of the Constitution states: the National Assembly is comprised of at least 120 members.  This means that there must be at least 120 MPs to be able to form the National Assembly for each legislature. […] This paragraph 1 is a necessary condition for forming the National Assembly but not for the functioning of the National Assembly.

The decision of the Constitutional Council can be accessed with this link [English: HTML], and I have also reproduced it below in order to provide the full context:

The paragraph 1 of the Article 76 of the Constitution stipulates: “The National Assembly is composed of at least 120 deputies.”  This means 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 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 of 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 elections shall officially take function at the inaugural session convened by the King and after the validity of the parliamentarians proclaimed, whose names are publicly posted at the National Assembly office.  Since then, the National Assembly shall have its validity until the end of its term except in special case of the dissolution of the National Assembly as a result of the Royal Government being voted out of office twice within a period of 12 months, as stipulated in article 78 of the Constitution.  Thus, article 78 of the Constitution states: “The National Assembly shall not be dissolved before the end of its term…” The above mentioned analysis shows that the change of parliamentarian number during its term does not affect the validity of the entire Assembly.  Thus, even though the parliamentarian numbers are less than 120, but not inferior to 7/10 quorum of the National Assembly, the latter will still be 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)

In accordance with the doctrine of statutory construction, the plain and straightforward meaning of the words of a statute is given primacy over any application of other interpretative canons or principles.  In analyzing the text, the courts are also guided by the basic principle that the statute should be read in context, as a harmonious whole rather than as separate, unrelated portions. As is evident from the highlighted portions in the text above, the learned legal representatives did not consider it prudent to include the entire relevant text of the decision of the Constitutional Council in their Joint Analysis which would have helped shed light on the meaning that the body intended to convey. While one can appreciate the desire of the authors to revise the text of the decision to reflect their preferred vision of it, the fact is that we must work with the actual language of the decision, not the aspirational version which the organizations have chosen to include in their analysis.
The Constitutional Council of Cambodia was approached by some members of the National Assembly on 14 July 2003 to provide clarity and decide on the constitutionality of the sessions of the assembly with respect to Articles 76 and 95 in the event of death, removal or incapacity of members of the assembly.  The Constitutional Council was not primarily deciding on the minimal number of members required to be present in the inaugural session of the National Assembly.
Reproducing portions of the pertinent text below:

This means 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 be less than 120.  This paragraph 1 is a necessary condition for the formation of a National Assembly but not for its functioning.

The first two sentences ought to be viewed in context without redaction.  It is evident that the Council emphasized that the requirement for the formation of the National Assembly needs 120 members at a minimum.  They did not, however, set a minimum requirement for the presence of members at the inaugural session of the National Assembly.  For some, it is the meaning of the term “formation” which is under dispute.  It would be pertinent to note that Article 76 does not make any reference to the term ‘quorum’ which is defined under Article 88 new (two) of the Constitution.

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 of 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 elections shall officially take function at the inaugural session convened by the King and after the validity of the parliamentarians proclaimed, whose names are publicly posted at the National Assembly office.

In this paragraph, the Council explains that the final result of the election should give 120 deputies or more in accordance with the number fixed by the Electoral law in order to be able to form a National Assembly.  It further conveys that the National Assembly results from the election which means that the house is formed when the results of the elections are officially declared after which the members officially take function.  The intent of the Council is clear inasmuch as their separate reference to the inaugural session which is convened by the King. There is no explicitly defined requirement on the presence of the elected representatives at the inaugural session and hence the quorum rules as defined under Article 88 new (two) apply.  In legal analysis, it is presumed that a statute will be implemented so as to be internally consistent, and that a particular section of the statute shall not be divorced from the rest.  Similarly, the requirements set out in Articles 76 and 88 new (two) of the Constitution cannot be viewed in isolation or in contradiction to each other.
Another principle applicable in this case is the Canon of Constitutional Avoidance which requires that if a statute is susceptible to more than one reasonable construction, the courts should choose an interpretation that avoids raising constitutional problems. In the stance posited by the learned legal representatives of the coalition of non-governmental organizations, a requirement that mandates the minimal and compulsory presence of 120 members of the National Assembly could potentially mean that four or more elected representatives would be in a position to induce constitutional crisis by refusing to attend the inaugural session.  Apart from simply being an incongruous formulation, there are no known established legal precedents anywhere in the world where such steep requirements have been constitutionally mandated for an inaugural session of the parliament.
Hence, the absence of the elected representatives of the minority Cambodian National Rescue Party (CNRP) does not invalidate the inaugural session of the National Assembly given that there is neither any constitutionally mandated requirement on the compulsory presence of 120 elected representatives during the first session, nor is there any such requirement imposed by the Constitutional Council as demonstrated above.  Based on the current state of affairs, it would be erroneous to assume that Cambodia has relapsed into a one-party state simply based on the premise that the current assembly is being boycotted by the opposition just as it would be inaccurate to characterize the United States as a two-party system.  The laws of the Kingdom do not preclude any number of qualified candidates or political parties from registering themselves with the National Election Committee to contest elections, just as US law permits candidates from political outfits other than the Republican Party and the Democratic Party to register and participate in the political process.
Therefore, and in light of the above, I would like to humbly put forth that the National Assembly of the Kingdom of Cambodia has duly fulfilled all the necessary requirements for its formation as mandated under the national constitution.
UPDATE: I just learned that the letter linked above in this blog post was not released publicly by the coalition of NGOs listed in the document.  However, CNRP President Sam Rainsy sent a copy of a letter which was addressed to the heads of Asian Development Bank and other international financial institutions to some of the media organizations.  A copy of the letter is made available here [English: PDF].  The letter raises similar questions on the constitutionality of the National Assembly and the Royal Government based on his reading of Article 76 of the Constitution.  Based on the letter and some of the feedback which I have received, I am adding some more comments below.
Quoting pertinent text in the letter by Mr Sam Rainsy:

Article 76 of the Constitution states, “The National Assembly consists of at least 120 members.”  In addition, a decision by the Constitutional Council in 2003, confirmed in 2009, specifies that the first meeting of the Assembly following any parliamentary elections must gather at least 120 members in order to be valid.  However, on September 23, only 68 members from the ruling Cambodian People’s Party (CPP), out of total of 123 members, attended that first meeting.

Comment: Article 76 of the Constitution does not make any reference to an inaugural session.  The quorum criteria is also not defined within this particular article.  Article 76 ought to be read along with Article 88 new (two) which defines quorum and Article 90 which prescribes that a vote of confidence can be delivered by absolute majority.  In accordance with the doctrine of statutory construction, the three articles cannot be interpreted in a manner that would make them internally inconsistent or contradictory.  Furthermore, as explained above, the decision by the Constitutional Council has to be read in its entirety, especially the portion highlighted below:

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 […]

The minimal requirement under the Cambodian Constitution and the Electoral law (LEMNA) is 120 members, however, as per the conditions placed by the Electoral law, there are 123 constituencies which produce 123 elected representatives. Therefore, the above decision essentially conveys that at the end of the elections, the final result must give 123 deputies in order to be able to form a National Assembly.  This is a clearly defined interpretation by the Constitutional Council of a constitutional provision which does not place any numerical requirements on the strength of the membership for the inaugural session.
Quoting more text from the letter below:

Article 51 of the Constitution states, “The Kingdom of Cambodia adopts a system of Liberal and Plural democracy.”  However, on September 23, the Assembly was only made up of 68 members from the CPP.  Such one-party Assembly is clearly unconstitutional and can only produce an unconstitutional and illegal government.

Quoting below Article 51 of the Constitution:

The Kingdom of Cambodia adopts a policy of liberal multi-party democracy.

Comment:  In my post above, I have stated that just because the CNRP has chosen to boycott the National Assembly it should not be construed that Cambodia has relapsed into a one-party state.  It should be noted that if CNRP decides to join, there would only be two parties in the assembly, which would still be compatible with the requirement of a “liberal multiparty democracy” since there are no restrictions placed on qualified candidates’ and parties’ participation in the political process.
UPDATE (2):  In addition to the above commentary, it would be pertinent to address an outstanding issue with the Joint Analysis attributable to a coalition of NGOs.
Quoting below the text and translation of the constitutional articles provided in the analysis by the NGO coalition (non-public) version:

The Cambodian Constitution describes a formal, inaugural event after each national election prior to the formation of the National Assembly.  In other words, though each parliamentary candidate is selected after the National Election Committee announces the final election results, that announcement alone does not result in the automatic formation of the National Assembly.  The elected representatives must first participate in a ceremony to end the old legislature end the old legislature and convene a new one.  This event is first reflected in Article 78 of the Cambodia Constitution, which states:

The term of the National Assembly is five years and ends on the day when the new National Assembly takes office. […]

Quoting below the relevant portion of Article 78 of the official translation of the Constitution:

The legislature of the National Assembly is of 5 years and shall terminate on the day of the new National Assembly entering in function. […]

Comment:  The constitution does not prescribe a formal, inaugural event in Article 82.  However, it does convey some conditions for the inaugural session which are provided in the official text of the constitution below:

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)

It would be important to note the discrepancy between the official version of the text and the draft attributable to a coalition of NGOs.  While the official version describes the ‘legislative term’ of the assembly, the joint analysis simply refers to the “term” of the assembly.  It would be critically important to distinguish between the formation of the assembly and the process taking office by the members of the assembly.  The intent of the drafters is evident in the language they have employed while drafting the provision highlighted above viz. “Before starting its works, the National Assembly shall […]” and “Before taking office, all the National Assembly’s Members shall […]”.  The legislative term of the National Assembly begins once the requisite number of members (62 and above) have fulfilled constitutional requirements and taken office, and concludes when a new National Assembly is formed and subsequently sworn into function after the succeeding elections.
Reference:  Constitution of Cambodia [English: PDF, HTML; Khmer: PDF]
Anirudh Bhati is a legal consultant based in Phnom Penh, Cambodia.  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.