William and Mary Law School

Elections!

        IBJ's work does not involve election law and is only affected incidentally by politics, insofar as the party in power oversees the operations of the criminal justice system. Like everyone here, however, I have been following the recent elections in the news and enjoying the excitement in the capital surrounding this quinquennial event. (Yes, I googled the synonym for "once every five years"). 

        On July 28, Cambodia held its general elections. According to the National Election Committee (NEC), 6.6 million people voted, out of the 9.67 million who were eligible, to elect the 123-seat National Assembly and, consequently, the Prime Minister.(http://en.wikipedia.org/wiki/Cambodian_general_election,_2013#cite_note-2). These numbers are not exact, however, because Cambodia has not taken an official population count for five years, complicating the current efforts to resolve post-election allegations of voter fraud. (http://www.hrw.org/news/2013/07/31/cambodia-ruling-party-orchestrated-vote-fraud). According to the opposition party, as many as 1.3 million names of eligible voters were left off the voting rolls in the final tally. (http://www.nytimes.com/2013/07/30/world/asia/cambodian-opposition-rejects-election-results.html?_r=0).

        The election pitted the majority Cambodian People’s Party, led by Hun Sen, against the strongest opposition party, the Cambodian National Rescue Party (CNRP), led by Sam Rainsy. Hun Sen was seeking his fourth term as prime minister. He began his political career as a minor Khmer Rouge cadre during the Democratic Kampuchea regime, but defected to the conquering Vietnamese side in 1979. Afterwards, he became a major political player, leading “Cambodia's transformation from a nation devastated by the ‘Killing Fields’ genocidal era in the late 1970s to become one of Southeast Asia's most vibrant economies;” but his twenty-eight years in power are also marred by alleged government curtailing of political freedoms and infringement on human rights. (http://www.abc.net.au/news/2013-08-03/an-cambod-opposition-agrees-to-join-election-probe/4863480).

        Sam Rainsy has been involved in Cambodian politics since the mid-1990s. In the 2008 elections, he headed the opposition “Sam Rainsy Party,” which, with its partner, the Human Rights Party, won twenty-nine seats. The two parties merged to form the CNRP in 2012, two years after Sam Rainsy fled to France to avoid prosecution for racial incitement and destruction of property. The charges stemmed from a protest he led at the Cambodia-Vietnam border where the group he rallied destroyed official border markers to demonstrate against supposed Vietnamese encroachment on Cambodian territory. The Vietnamese government warned that a failure to hold someone criminally responsible for these acts would jeopardize the two nations’ border demarcation negotiations. In response, the National Assembly voted to strip Sam Rainsy of his parliamentary immunity. (Article 80 of the Cambodian Constitution guarantees members of the National Assembly immunity from prosecution, arrest, or detention for their opinions expressed “during the exercise of their function.” However, the constitution also allows the Standing Committee to recommend that the National Assembly vote to remove a member's immunity by a two-thirds majority. Prior to these elections, the CCP made up around 70% of the Assembly, so the vote was a foregone conclusion.)

        In September 2010, long after he was safe in France, a Cambodian court sentenced Sam Rainsy in absentia to ten years imprisonment. Amazingly (or not), this was the second time in that decade that Sam Rainsy had been convicted of a crime in absentia. Previously, in 2005, the National Assemby voted to remove his parliamentary immunity when he was charged with defamation for publicly accusing it of corruption and, more seriously, accusing Hun Sen of being involved in the 2004 murder of a Sam Rainsy Party union leader. That time, he was just given eighteen months and a $14,000 fine, which he was free to ignore from his home in France. A pardon from the King, requested by prime minister Hun Sen, himself--required by the Constitution--allowed Sam Rainsy to return to Cambodia in 2006.

         The week before this past election, Hun Sen found himself between a rock and a hard place: he could either do nothing and risk the chance that Sam Rainsy would return to Cambodia, despite the warrant for his arrest, and rouse the electorate by his act of martyrdom; or, he could again request the king's pardon and risk the possibility that Sam Rainsy would usher the CNRP to victory as a viable candidate. Hun Sen navigated a middle-way, however, a token to his famed political shrewdness: he requested the pardon, the king granted it, and Sam Rainsy returned; but, behind the scenes, he (very likely) influenced the subsequent NEC decision to bar Sam Rainsy from voting or putting his name on the ballot on account of the latter's failure to register as a voter before the December 31, 2012, deadline.

        Many people here, especially among NGO workers and the english-language press, see Sam Rainsy as a quasi-messiah who, if given the chance to govern, would lift the Cambodian government out of the depths of corruption and nepotism where Hun Sen’s leadership has sunk it. While this may be true, and the opinion is certainly widely held, Sam Rainsy’s anti-Vietnamese-immigrant rhetoric raises some red flags about his supposedly reform agenda. (http://www.cambodiadaily.com/archive/on-campaign-trail-sam-rainsy-pledges-to-oust-vietnamese-9560/). The CNRP's anti-immigrant polemic plays well with voters in the provinces who fear losing their jobs and land to the Vietnamese, and also strikes nationalistic chords against the backround of the complicated, intertwined histories of the Cambodian and Vietnamese governments, the Khmer Rouge, and the Cambodian Monarchy. Currently, the anti-Vietnamese narrative is fueled by the CNRP's contention that migrant Vietnamese living in Cambodia were able to register as voters, skewing the results in favor of the immigrant-friendly CPP. (http://www.nytimes.com/2013/07/29/world/asia/hun-sens-party-holds-on-to-win-cambodian-vote.html?pagewanted=all).

        On Friday afternoon, two days before the election, Aat picked me up from work as usual, but what is ordinarily a ten-minute trip home took much longer, as we were stuck  behind motorbike rallies waving flags, chanting slogans, and banging drums in support of the CPP. (Click here for a video). I only saw CPP supporters because our route went through that party’s allotted parade territory, but I heard that CNRP motorcades were creating equally formidable traffic jams in other parts of the city. That night, I walked out to the large rotary around the National Monument to take some pictures of the rallies there. The displays of peaceful exuberance were remarkable for a people who, just sixteen years ago, held their breath as Hun Sen led a bloody “coup” (some would categorize it differently) to oust his co-prime minister from the FUCINPEC party, Prince Norodom Ranridhr. Furthermore, every election since then has been disturbed by some violence, albeit the three successive elections have each seen less. Nevertheless, even those who did not paint their faces or dress up in CPP attire crowded the streets just to be a part of the events. I even saw many small children sitting on their parents' shoulders, their heads bobbing above the crowd.

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Independence Monument

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Click for videos:  one, two, three 

     The next day, Saturday, the streets were silent. The government had prohibited all rallies and restricted the sale of alcohol from midnight on Friday to Monday morning in an effort to preempt possible violence. The usually bustling capital was almost like a ghost town. Sunday morning, I went out to take some pictures of people casting their ballots. Just as in the U.S., most of the voting took place in high schools and elementary schools converted for the day into polling stations. Voters walked out with purple index fingers, dyed to prevent multiple voting. In the district where I live, everyone appeared happy and the process seemed to be running smoothly.

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Polling Station

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        Around 6 p.m. that evening, however, Atif knocked on my door to tell me that riots had broken out in the Meanchey district of Phnom Penh. Apparently, many people there had shown up to vote only to be turned away, either because their names were not in the registry or someone else had already voted for them. Although the district is a good half-hour away from where I live, I still expected to see some ripple effects from my hotel balcony; but the streets were just as quiet as they had been for the past two days. Twitter, by contrast, was buzzing with premonitions of disaster for the entire capital. Since I had a good enough view of the city from my room at least to know that it was not burning down, the hyperbole did not phase me; but, I was a little disturbed by early reports that the CNRP had pulled an upset victory, since Hun Sen had previously predicted that an opposition victory would usher in a new period of war. This was more of a threat than a prediction from the mouth of a man who wields enough power to fulfill his own prophecies. (http://sithi.org/temp.php?url=news_detail.php&mid=8014). At 7:30, I was relieved to see the Cambodian Minister of Information, Khieu Kanharith, announce on his Facebook page that the CPP had retained its majority, with sixty-eight seats to the CNRP’s fifty-five. Despite its overall victory, the CPP had lost twenty-four seats and the opposition had picked up twenty-six since the 2008 elections.

        Since the CPP-dominated National Assembly passed a constitutional amendment in 2006, only a simple majority is required to form a government, instead of the two-thirds majority required originally. Thus, if the results stick, the CPP will rule constitutionally. However, a two-thirds majority is necessary to amend the constitution, and seven-tenths is required to achieve a quorum, so the CNRP has won new leverage in the National Assembly. (Edward Gough Cambodia: 2013 Election Analysis – A Practical Perspective http://destinationjustice.org/2013-election-analysis-a-practical-perspective/)

        Despite its remarkable gains, the CNRP disputes the election results and Sam Rainsy claims the party won a majority sixty-three seats. The U.S. has also expressed concern about the election results with State Department spokeswoman Jen Psaki calling for, "a transparent and full investigation of all credible reports of irregularities,” and urging “all parties and their supporters to continue to act in an orderly and peaceful manner in the post-election period." (http://www.aljazeera.com/news/asia-pacific/2013/07/201373083046618367.html). Statistically, the sixty-nine-percent voter turnout represented a six-point drop from the 2008 turnout, which the Committee for Free and Fair Elections in Cambodia (COMFREL) attributes to voters being barred from casting ballots because their names were removed from the voter lists. Some voices in the media speculate that the ink was not truly indellible, and people were able to vote twice by scrubbing their index fingers. (http://www.voanews.com/content/cambodia-poll-monitors-report-problem-with-indelible-ink/1711199.html). All I know is that the Cambodians in the IBJ office had a purple index finger for a full week after the elections, and a purple index fingernail for two weeks. I presume that they showered since voting and would have washed off the unsightly mark if it were possible.

        At first, the CNRP demanded an independent, UN-led probe into the elections, claiming that a unilateral NEC investigation would necessarily be biased by its members’ ties with the CPP; but the NEC steadfastly opposed outside involvement, conceding only to let the UN "have the right to observe the process." (Edward Gough). The NEC stated that it was “too late” to involve NGOs and the United Nations, and the CPP would not agree to the investigations without the NEC’s involvement. (www.phnompenhpost.com/national/cnrp-walks-out-nec-meet). So, on August 3, the CNRP acceded to the CPP and allowed the NEC's investigating committee to conduct an election probe. (Edward Gough). The NEC delivered their “temporary result” on August 11, upholding the original tally. The CNRP then filed thirty-three complaints with the Constitutional Council, Cambodia’s highest legal authority. That body has until September 7 to decide whether a re-election is necessary. (Edward Gough). On Tuesday, the Council rejected all fourteen of the complaints it considered in a session closed to the public. (http://www.rfa.org/english/news/cambodia/election-complaints-08202013173927.html). Both COMFREL and the CNRP urge future sessions to be public and transparent.

        If there is to be one, a re-election will be held on September 15. The Cambodian constitution requires that the current National Assembly retain its mandate until new members are sworn in and a new Government is formed, with Article 78 stating that the five-year term only ends on the day when the new National Assembly convenes. Article 82, however, requires the National Assembly to hold its first session no later than sixty days after the election. Thus, if the government is not formed by September 26, it may be unconstitutional, unless the King grants a special dispensation. (Edward Gough).

         From what I’ve read, both parties' positions are well summed up in the following quotes. From Sam Rainsy:

 "Outgoing Prime Minister Hun Sen is afraid of me and he does not want to have a fight with me. . . I am the only real challenger to him, and my party has enjoyed growing popular support while his party, a former communist party that has been in power for 30 years, has now encountered more and more popular resistance." He goes on to channel the Arab Spring saying, "There are many similarities between the youth in Cambodia and the youth in the Arab world . . . [they] are very dissatisfied with the regime . . . unemployed . . . frustrated. They want the end of corruption. They want total justice. It is a long way to go." (http://www.huffingtonpost.com/2013/07/30/cambodia-election-sam-rainsy_n_3677775.html)

         From an editorial written by CPP partisan, secretary of state in the Ministry of Interior and vice-chair of the Council for Agricultural and Rural Development, Ngy Chanphal:

 “Irregularities existed, and it did affect all parties, not just one party as proclaimed and should not be used as a hostage for the successful, free, fair and peaceful election . . . There is no perfect system that exists, even in all advanced countries (see the US Presidential election in 2000). Let’s move on! It is not bargaining time . . .  To suggest ‘complete change of leadership’ is tantamount to a coup d’etat." Interestingly, he also alludes to the Arab Spring, but disparagingly, "The 2013 election results did reflect the people’s choice, through a democratic process . . . Any suggestion that the . . . election gave the opportunity to usher in a 'Cambodian spring' is tantamount to self-destruction, or suicide, and is completely out of context. Ms Theary Seng, [an editorialist for the Post] attempted to elevate Mr. Sam Rainsy to become the father of the Cambodian people, replacing the late King Father Norodom Sihanouk. His stature is not comparable to the King Father. This is too much and a very offensive statement. The country should be led by honest and well-respected politicians/statesmen, and not by activists. Judging from the racism rhetoric, accusations, manipulations, calls for mass demonstrations, it sounds like the works of activists, and not honest politicians or a statesman." (http://www.phnompenhpost.com/analysis-and-op-ed/reflections-2013-election)

        Of course, no one knows how events will unfold. The majority of Cambodians I’ve talked to believe that, come September, the waves of unrest will blow over rather than swell, but right now the atmosphere is definitely choppy and the air is ripe with nervousness. For example, two Mondays ago, a CNRP activist in Kampong Speu province was murdered, execution-style, which “while reaching for a customer’s change at his Treng Trayoeng commune grocery shop." The murder turned out to be the consequence  of a land dispute (the victim’s son-in-law confessed to hiring two assassins because his father-in-law had refused to hand over the five hectares of land he sold for $3,000), but everyone's first assumption was that it was politically motivated. (http://www.phnompenhpost.com/national/murder-over-land-not-election-cops). Last Wednesday evening, I literally ran into the army when I was jogging around the Olympic Stadium and two officers made me turn back so that I would not interrupt their unit’s training exercises. Hun Sen has them in to the capital to preempt any violent demonstrations after Sam Rainsy returned from the U.S. last Friday, where he was attending his daughter's wedding. (http://thediplomat.com/asean-beat/2013/08/21/tank-spotting-as-sam-rainsy-returns/). This past Tuesday, four activists were bailed on charges of incitement to felony  for peacefully protesting the entrance of the soldiers by greeting them with flowers. (http://www.rfa.org/english/news/cambodia/election-complaints-08202013173927.html)

p.s. 

I followed this guy walking against traffic for ten blocks, thinking that he was protesting the elections; but, after a friend translated his sign, it turned out that he was evanglizing! I had thought the white cross was just tape holding the sign together! 

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