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.