When is the National Assembly formed? Or more accurately, how is the National Assembly formed? Or, even more particularly, is the initial convening session a part of National Assembly formation and thus requires the “at least 120 members” of Art. 76?
The issue is not when or how is the Government formed. No one is contesting the needed simple (50+1) majority of MPs to form the Government.
II. ARGUMENT SUMMARY
I will argue in this Commentary that:
A. The formation of the National Assembly is a process that must satisfy four conditions: (i) the election results produced at least 120 members; (ii) these 120 MPs-elect convened the initial session (iii) at the invitation and presence of the King, and (iv) must take an oath before assuming official functions.
Only when all these four conditions have been met is the National Assembly fully, legally, constitutionally formed.
B. The initial convening session—a component of formation, requiring the King to give notice, with the attendance of “at least 120 members”—is distinct from the “ordinary” or “extraordinary” or any other sessions (particularly, Articles 83 and 88) where a quorum requiring an absolute or 2/3 majority attendance of MPs determined the session’s validity and where most times the President, Vice-Presidents and/or chairs of various commissions (Art. 83, 88) are already established.
C. The Article 82 initial convening session (of “formation” and not “functioning”—the language of CC Decision and Art. 82) includes: (i) notice by the King, (ii) validating of each MP-elect, (iii) voting separately (not by package) for the President, Vice-Presidents, and Commissioners as each position requires an absolute majority of votes, and (iv) taking an Oath of Allegiance.
Stated differently, Article 82 initial convening session is part of “formation”. It is different from Articles 83, 88 and other sessions of “functioning”.
If the initial convening session is a necessary condition of the “formation” (and not “functioning”) of the National Assembly, then it must have at least 120 members, as the formation of the National Assembly requires at least 120 members.
D. The formation of the National Assembly and the formation of the Government are separate but sequential processes: first the National Assembly, then the Government.
E. The election period (Art. 82 «ពេល បោះឆ្នោត») has not ended as (i) the CNRP is also claiming victory and (ii) the CNRP and voters are demanding an independent joint commission to inquire into widespread election fraud. As such, the “at least 120 members” cannot yet be determined.
F. As a consequence, the National Assembly has not been formed according to the plain language (ordinary reading and understanding) as well as the spirit of the law. It also follows that the Government has not been formed.
G. Hence, the current CPP-formed “National Assembly” and the CPP-formed “Government” are prima facie unconstitutional.
CIVICUS Cambodia Theary C. Seng presenting on the "Right to Vote" at the Konrad Adenauer Stiftung Conference. Also pictured: Rector of the National University of Management Dr. Hor Peng, CDP director Sok Sam Oeun, KAS country representative Denis Schrey, Law Prof. Jorg Menzel, AICHR Commissioner Cheat Chealy, PIC direct Dr. Yan Vandeluxe (Independence Hotel Sihanoukville, 11 Oct. 2013)
Joined by Constitutional Council member, Prince NORODOM Sirivudh (half brother to King Father Sihanouk, former Minister of Foreign Affairs and of Interior) 12 Oct. 2013
An “expert” may have an opinion, but it must pass the “laugh” or absurdity test.
Plain Language (Letter of the Law)
Basically, any interpretation of a written statute or legislation looks at the letter and spirit of the law.
Proper legal interpretation starts with the plain language of the statute to discover its original intent. That is to say, we discover the original intent of the law by looking at the words of the statute and apply their usual and ordinary meanings.
With the issue at hand, the Cambodian Constitution expressly, unambiguously states: "The National Assembly consists of at least 120 members" (Art. 76).
Here, the presence of only 68 highly contested members from only one party simply fails to satisfy Article 76.
Subsequently, the CPP absolutely fails the “plain language” test of statute interpretation.
Spirit of the Law
If, after looking at the language or “letter” of the Constitution, the meaning of the statute remains unclear, we divine the intent of the law by looking at the history, process and other sources. Generally, we disregard any interpretation that would create an absurd result which the original drafters and lawmakers did not intend.
Or, what one of my law professors posits: “Does it pass the laugh test?”
With the present political impasse, the issue is whether the sole presence of the CPP satisfy the Constitutional intent of “a multi-party liberal democratic regime guaranteeing human rights and the respect of law” (Preamble, Art. 51) and the answer is a resounding NO!.
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Figures of Readership of these election-related Commentaries
Photo taken on Wednesday, 25 Sept. 2013 at 11 a.m.
Honorable Exit Strategy for Hun Sen has been averaging 10,000 hits per day since it was first made public, at @82,000.
Anatomy of Fraud: 108,700+
Reasonableness Standard, Due Process: 123,700+
Election Irregularities: 125,600+
Cambodia Spring: 53.600+ (not including the opinion in The Phnom Penh Post and KI-Media)
All these figures do not include the 2,000 names CIVICUS Cambodia emailed, names of diplomats, media and Cambodia watchers we have collected over the years.
Cambodia's Opposition Party Insists on Election Investigation
Epoch Times | 16 Sept. 2013
“Cambodia is undergoing a major phenomenon never seen in our history, a Cambodia flourishing, if you will,” said Theary C. Seng, founder of the Cambodian Center for Justice and Reconciliation, based in the capital Phnom Penh.
She witnessed a budding new season for the country, she said, when she rode on the back of the pickup truck taking opposition party leader Sam Rainsy from the airport to Democracy Square upon his return from exile on July 19.
“Crowds in the hundreds of thousands openly, fearlessly convulsed onto the truck and stage, demanding change. Their passion, palpably pulsating and electrifying the Cambodia air, acts to diminish the prior existing fear,” Seng said.