Can a National Assembly be formedwith fewer than 120 MPs present

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Joint Analysis

Can a National Assembly be formedwith fewer than 120 MPs present?

Introduction:

The National Assembly represents the entire population of Cambodia. In order to form the National Assembly, the institution must have at least 120 members under Article 76 of the Cambodia’s Constitution.

The National Assembly cannot represent the voices of only one group of citizens. Article 77 of the Constitution states:

The Members of the National Assembly are the representatives of the whole Khmer Nation and not only those of the citizens from their constituencies.

In the 2013 National Elections, Cambodian citizens across the political spectrum voted 123 representatives into office. Those elected representatives are required to represent the political choices of different groups. In other words, they represent the diversity of voices from all political affiliations, which have recievedthe support of the country’s citizens.

The procedural framework for the formation ofthe National Assembly

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 iselected after the National Election Committee announces the final election results, that announcementalone does not result in the automatic formation of the National Assembly. The elected representatives must first participate in a ceremonyto end the old legislature and convene the 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.[...]

Article 82 describes the inaugural session of each National Assembly. It notes that before starting its legislative work, the NA must declare the validity of each member, and that all of the NA’s members must take an oath (Cambodia’s Constitution Article 82 new).

At the first session, all members are each assessed to determine whether any have incompetible conflicts of interest, or are members of any other institutions as stated in the Constitution (Article 79).If a certain number of the newly elected members are disqualified, then the National Assembly cannot declare its new legislatureas it will not have a full membership of at least 120 MPs as required by the Constitution.

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 of the Article 76 of the Constitution states: the National Assesmbly 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.

In conclusion, under Articles 76, 78 and 82, when considered together with the Constitutional Council’s 2003 decision, a new legislature of the NA cannot be declared open with membership of less than 120MPs.

If elected representatives of a political party are not present at the inaugural opening, can their seats be taken away and redistributed to other party(ies)?

The election law allows the National Election Committee to take away the seats of a political party to redistribute to other party(ies) only in the case where a political party has declaredit relinquishesits seat(s). Article 118 new paragraph E stipulates thus:

In the case where a political party has won one or many seat(s) in the NA but it declares to abandon its seat(s) or has its candidacy stripped from the list of the political party …the party’s list orthe candidate on such party’s listthat has been declared elected, is nolonger valid or qualified. ...

In the above-mentioned case, the NEC shall redistribute the seats thus vacant, within seven days (7 days), to other political party(ies) which has (have) seats the same in the province-municipality...

According to this legal provision, the NEC cannot take away seats from a political party to redistribute them to other political party(ies) having seats in the same province/municipality withoutan expressdeclaration relinquishing such seats made bythe party.

In other words, a party the chooses to abandon one or more of its seatsmust communicate this decision to the NEC through some form ofofficial notification,such as through a written letter. Such a declaration is a sovereign decision of the political party relinquishing the seat(s), and cannot be based on an outside organisation or institution’s interpretation or by coercion.

The outside organization’s or institution’s interpretation or coercion to take away the seat(s) from a political party who has not declared relinquishing its seat(s) as mentioned above, is a violation of the political choices of the citizens and of the principles of representativeness and mastership of Cambodian citizens over the country.

The joint analysis is prepared by the following organisations:

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