Monitoring Report

P.R./No 18/08 COMFREL/M.U.

9th Monitoring Report

On

Complaints about Temporary Election Results of the 4th Mandate 2008 National Assembly Elections

Phnom Penh, September 26, 2008

Both the legal framework and the procedural practices of complaint settlement against the temporary results of the National Assembly Elections in Cambodia were seriously under criticism. Law on Elections of National Assembly (LEMNA) provides only 48 hours for the National Electoral Commission (NEC) to settle complaints regarding the results of the election nationwide. This pushed the NEC into taking immediate action.

The NEC was unable to investigate complaints for more information and to open public hearings in solving political parties’ complaints. Despite the time constraint, the NEC never suggested an amendment to LEMNA on deadline of lawsuit or any other challenges.

Based on the above deadline, the NEC claimed that it had no time but had to follow the law.

In practice, the NEC tried to make its decisions as quickly as possible to pass the buck.

Political parties could file appeals with the Constitution Council where final decisions were made, open to no further appeal.

The Constitution Council (CC) procedure in solving complaints included summoning political party representatives/lawyers to clarify, provide more information and evidence or burden of proof before an open public hearing, and to open to each party a chance to reclaim and defend his/her case. However, the Council’s decisions were based entirely on the NEC’s decisions, which were made in a very hurried way.

In addition to receiving allegations of political affiliation, the NEC and Constitutional Council decisions have not yet gained public or political party support. Observation found some irregularities regarding the legal framework for complaint settlement at the NEC and the Constitutional Council.

Filing complaints

The NEC announced temporary election results on August 9, 2008. Following the NEC’s announcement, three political parties – Sam Rainsy Party (SRP), Human Rights Party ( HRP)and Norodom Ranariddh Party ( NRP) – filed complaints separately to reject the results (August 11, 2008).

The SRP filed separate complaints, one related to rejection of the election results and a request for reelection in Svay Rieng, and the other related to rejection of the election results nationwide. The complaints were base on the following grounds:

• Polling stations were changed from the planned location and voter names were missed

off the voter list;

Ineligible voters voted for other voters; and

• Forms 1018 were issued on election day, which is against Regulations and Procedure.

The HRP’s complaint to reject the temporary results nationwide was on the grounds that the voter lists were manipulated (more names were added to the voter list in each polling station).

The NRP also filed a complaint with the NEC to reject the election results nationwide, raising serious irregularities, including intimidation and the illegal issuance/use of Form 1018.

Evidence and documents given by political parties to the NEC included fake Forms 1018; thumbprints of voters whose name were used to vote by other people and voters whose names could not be found;

tape recordings; newspaper articles; observation of events; and a study on the election result Form

1104, which has statistical errors.

Legal framework

To solve the complaints, articles used were as follows. Article 114 of LEMNA provides that political

parties running for election can contest the partial or whole election results with the NEC or the Constitutional Council directly. Based on this Article, a political party has to clarify in its complaints the following:

1. Irregularities related to the commission or commissioner who conducted the wrongdoing/

misconduct;

2. Date of wrongdoing/misconduct;

3. Place of wrongdoing/misconduct;

4. Name and address of witness; supporting documents and other evidence.

In terms of narrow meaning, political parties can file complaints only about irregularities committed by electoral officers. They cannot raise other election-related violations such as those regarding vote

buying or political intimidation. A complaint against an electoral officer, whose work is under the guideline and control of the NEC, is filed with the NEC. This leads to a conflict of interest.

According to LEMNA Articles 111 and 112, a Provincial Electoral Committee (PEC) shall hold a public hearing to settle a complaint in case any serious irregularity/misconduct raised by the political party and submit a report/minute on the hearing and the decision to the NEC for reviewing legality.

The NEC can reject the elections results in a polling station as raised in a complaint only if there are

serious irregularities affecting the election results. The law does not describe what level of irregularities should be considered serious. This causes difficulties for the NEC, which often appears irresponsible in resolving complaints and carrying out further investigation. In principle, serious election irregularities/violations include illegal booth capture, vote rigging, vote buying, political intimidation, the issuance of policy and other practices affecting free and fair elections.

Additionally, as noted, Article 115 of LEMNA states that the NEC shall decide on complaints within 48 hours of receiving the complaint. This deadline is unreasonable dealing with the resolution of political complaints related to the election results nationwide. This time is very brief and it is unreasonable to expect it to be possible to solve complaints related important issues, such as the

election of the country’s leaders.

Complaint settlement at the NEC

On August 12, 2008, the NEC issued three separate decisions rejecting political parties’ complaints,

raising the fact that the plaintiffs had not provided evidence of irregularities as stated in LEMNA’s

Article 114 to the NEC for review and consideration.

During receipt of the complaints, the NEC’s representative wrote a report asking for more information from political parties’ representatives/lawyers. Nevertheless, the NEC did not take any action to investigate the irregularities and/or documents and evidences given by the political parties. The NEC rejected the political parties’ complaints in an internal meeting without holding a public hearing. This violated LEMNA’s Article 16 in Section 25, which states that the NEC must make decisions based on a public hearing regarding appeals or complaints related to the elections.

The NEC’s decision was referred to a meeting on August 12, 2008. Doubts arise surrounding this meeting: the NEC’s decision to reject the complaints was forwarded to political parties on the same

date at 08:45; the NEC received the last complaint on August 11 at 18:10. For NEC officers at all

levels, workdays include Saturdays and Sundays (except public holidays); nevertheless, the working

hours on that day bring about suspicion as to how the meeting was conducted and the legitimacy of the NEC’s decision.

The NEC rejected political parties’ complaints related to counterfeit Forms 1018 on the grounds that the NEC does not have any jurisdiction over counterfeit identity documents. Forms 1018 (Identity document) were issued by commune chiefs to people as their identity document used for registering for the elections. The authentically-designed form 1018 has the NEC logo at the top and its layout was created by the NEC. It was given by the NEC to all communes across the country for official use.

However, the NEC was out of control the number of the forms issued by commune chiefs to voters

and did not hold any responsibility for the issuance.

Constitutional Council’s decision on the appeals

After cases were rejected by the NEC, the SRP and the HRP filed 3 appeals with the ConstitutionalCouncil (2 by the SRP). The NRP did not filed an appeal with the Council. According to LEMNA’sArticle 117, the Council has 10 to 20 days to settle complaints and make a decision over the appeals.

During complaint settlement on August 19, 2008, the Council summoned the SRP representative tohold more inquiries and to provide more evidence. The NEC’s representative was summoned to clarify and defend the decision to reject political parties’ complaints without holding a public hearing.

The Council summoned only the lawyer without giving a chance for the political party leader to clarify its case directly. The SRP’s President, Mr. Sam Rainsy, was present in the Council compound but was not allowed to enter the inquiry room. Although the party had requested assistance from a lawyer, it is not clear why the Council did not call on the political party’s leaders to clarify the case directly.

Regarding further inquiry and the search for extra evidence (other than that of the political party), observation found that the procedure was unclear, particularly for the reason stated above (that only the lawyer was called on and not the party leadership).

On August 20, 2008, the Council summoned the HRP representative to clarify the party’s case and to provide more evidence.

6 days after the political parties’ lawyers/representatives were summoned (August 26-8, 2008), theCouncil held a public hearing to settle the complaints. During the hearing process, the jury invited political parties and NEC representatives to clarify their case before the panel. In the end, the Council issued a decision to reject all the complaints and upheld the NEC’s decision, made without a public hearing and in contravention of LEMNA’s Article 16 Section 26 and Articles 111, 112, 114 and 115, without further investigation.

The NEC representative claimed before the Council that the NEC’s reasons for rejecting the complaints were that the political parties had not shown specific irregularities committed by the election commission, including the specific location, time and evidence. The NEC responded to the

political parties’ claims as follows:

Voter name deletion, inflated figures and double names on the voter list: Cases related to thevoter list could not be solved in the time used for settling complaints against temporary election results. Voter list updating, voter registration and voter list deletion were done in accordancewith procedure and voters were given time to contest decisions.

2. Changes of polling station locations and missing voter names: The NEC clarified that one polling station should have a maximum of 700 voters. In case a commune clerk registers more than 700 voters, the initial polling station will become two polling stations located near each other.

3. Ineligible voters voting using other people’s names: The NEC denied this occurred, acknowledging only 1 case in Phnom Penh (stating that this was unintentional).

4. Issuance of Forms 1018 on Election Day against the Regulations and Procedure: The NEC saidthat, in addition to evidence provided by political parties, it had investigated the alleged commune chief who issued Form 1018 on Election Day. The NEC had already submitted allthe cases to the Ministry of Interior to take only disciplinary sanction against those found guilty.

The NEC said that it had no jurisdiction over fake Forms 1018.

This led to suspicion regarding the NEC’s interpretation of “insufficient evidence”, as the NEC did not review and consider the evidence and documents provided by the political parties attached to their complaints. For example, some Forms 1018 given in by political parties clearly showed falsified

information and wrong procedure in filling out the forms.

In conclusion, to improve the procedure of complaint resolution related to temporary election results, the legal framework should be prioritized. Political parties, the NEC, the Constitutional Council and election stakeholder and experts should discuss the possibility of amending LEMNA to determine the institutions involved, lawsuit deadline, filing and receipt of complaints, investigation and inquiry procedure, hearing procedure and decisions over complaints about the temporary election results procedure.]

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℡ For more information, please contact:

- Mr. KOUL Panha, COMFREL Executive Director, Tel: (+855-12) 942 017

- Mr. MAR Sophal, COMFREL Head of Monitoring Unit, Tel: (+855-12) 845 091

COMFREL’s first mission is to help to create an informed and favorable democratic climate for free and fair elections through lobbying and advocacy to establish a permanent and suitable legal framework; education to inform citizens of their rights; and monitoring activities that both discourage irregularities and provide comprehensive data to enable an objective, non-partisan assessment to be made of the election process.