4. The FUNCINPEC party requested for full accounting of all ballots that have been
printed in New Zealand. The NEC had some 9,073,500 ballots for about 5,000,000
voters in the country. How many have been used? Unused? and kept in reserve? The
NEC did not respond to this request.
In fact, Article 115 of the Law on the Election of the Members of the National Assembly
provides that the NEC shall rule on a complaint within 48 hours of its receipt. The Law
further provides that if the NEC rejects the complaint outright, it shall:
a) Complete a rejection form by the reasons and the date of the rejection;
b) Provide the complaining party with a copy of the rejection form;
c) Inform the complaining party that, in accordance with Article 117 of the Law, they are
entitled to make a written appeal of the rejection to the Constitutional Council within 48
hours of notification of the rejection;
d) Send a copy of the rejection form to the Constitutional Council for information and
retain one copy for its file.
The Law further provides that if the complaint has reasonable grounds, the NEC shall hold
a public hearing on the complaint. After hearing, the NEC will either uphold or reject the
complaint. In either circumstance, the NEC is required to provide both the complaining
party and the Constitutional Council a copy of either the approval or the rejection form
which must contain the reasons for the action taken by the NEC. To date, the NEC has
refused to issue written notice of either acceptance or rejection of the above complaints
2., 3. and 4. Clearly, the NEC has failed in its administrative duty, set forth in the
Law, to issue notice of its actions with respect to complaints filed wit it.
The FUNCINPEC strongly believes that the CC should hear the complaints at least for two
basic reasons:
a) The NEC should be compelled by the Constitutional Council to render written responses
to the complaints;
b) The refusal of the NEC to issue any decision on the complaints has the same effect, for
legal purposes, as a rejection.
The Constitutional Council is the final arbiter of all election complaints. Article 34 of
the Law on Organization and Functioning of the Constitutional Council. Those filing
complaints that are rejected are entitled to appeal the denial to the Constitutional
Council. Article 117 of the Law on the Election of the National Assembly and Political
Parties. In situations where the NEC fails to follow its legal duty to issue notices of
decisions within 48 hours, the Constitutional Council must exercise its power by requiring
the NEC to issue the legally required notices of decisions so that the legal framework set
forth in the Law on the Election of the National Assembly and Political Parties remains
intact. To fail to issue such an order to the NEC would disenfranchise those voters with
legitimate complaints thereby denying them a free and fair election.
Further, even without such an order to the NEC, the FUNCINPEC Party’s complaints to
the NEC which have been presented to the Constitutional Council are appropriately before
the Council. The effect of the NEC to fail to render a written notice of decision has the
legal effect of a denial. Where exhaustion of lower level administrative remedies is
a prerequisite to further relief, refusal of the lower level administrative body to make a
decision, or if the decision of the lower level body is a forgone conclusion as it appears
to be here, the requirements for that decision should be waived and the appealing party be
allowed to pursue its complaints to the higher body, in this instance the Constitutional
Council. Again, to deny FUNCINPEC that has made timely complaint to the NEC its legally
guaranteed right to an appeal because the governmental body has failed to take the steps
the law requires it to take, would disenfranchise those voters and deny them a free and
fair election.
The refusal of the Constitutional Council on August 31, 1998 to hear the above mentioned
cases which
FUNCINPEC has brought to its attention in a timely manner violated the above procedures
and denies the
party due process of law.
The failure of the Constitutional Council to properly address these appeals creates some
suspicion and
concern as to its ability to stay independent and neutral which is the essence of this
high institution.
Article 117 of the Constitution and Article 2 of the Law on Organization and Functioning
of the Constitutional Council. The FUNCINPEC Party strongly urges the Constitutional
Council to uphold the integrity and missions of this high institution and to fulfill its
responsibilities according to Article 117 of the Constitution, Article 117 of the Law on
the Election of the Members of the National Assembly, and Articles 1, 2 and 28 of the Law
on Organization and Functioning of the Constitutional Council.
The refusal of both the National Electoral Commission and the Constitutional Council to
give the
FUNCINPEC Party due process leaves the latter little choice but to pursue it by other
means.
The FUNCINPEC appeals for:
1) strengthening procedural democracy in Cambodia;
2) improving transparency in decision-making;
3) increased access to rights guaranteed in the constitution.