An opposition boycott would lead to a constitutional impasse

An opposition boycott would lead to a constitutional impasse
   

By Antoine Phirun Pich, Lawyer, LL.M. (published 9 August 2013 in The Cambodia Daily)

  
Paragraph 1 of article 76 of the Constitution states that the National Assembly consists of at least 120 members. Although an absolute majority of seats (62) is enough to form a government as a result of an amendment passed in 2006, a quorum of 120 lawmakers is nonetheless still needed to approve the start of a new National Assembly.

 
It is acknowledged under Cambodian constitutional law and jurisprudence that article 76 imposes a sine qua non for the launch of a new legislature, all the more so due to a July 22, 2003 decision of the Constitutional Council that has given an unambiguous interpretation to that effect.
   

“There shall be at least 120 deputies to be able to form the National Assembly at every legislature. Electoral law cannot limit the number of parliamentarians to less than 120. This paragraph 1 is a necessary condition for the formation of a National Assembly but not for its functioning. At the end of the election, the final result must give 120 deputies or more according to the number fixed by the Electoral law in order to be able to form a National Assembly […]”.  For all practical purposes, this rule is impossible to circumvent.

That said, the question must be asked as to whether a redistribution of seats in the event of an opposition boycott of Parliament would be legal. It is recognized that a clear and explicit abandonment of seats by a party could open the way for the NEC to reallocate them. It would be fair to argue, however, that a simple boycott by the CNRP notably aimed at protesting the outcome of the elections cannot be assimilated to an express renunciation of its parliamentary seats, especially in a context where the party continues to claim victory. 

  
It should also be noted that nothing in the Constitution allows for the distribution of seats, be it arbitrarily or on a pro rata basis. And since none of the other minor parties has apparently secured any seats, it would be hard to conceive how the CPP could legally seize all 123 seats in the National Assembly the way outgoing Prime Minister Hun Sen has recently warned.

  
In any case, an opposition boycott of the National Assembly’s swearing-in ceremony would lead to a constitutional deadlock. Any attempt by the CPP to unilaterally convene a new National Assembly and/or to form a one-party government boosted by the CNRP’s seats would not only lack political legitimacy but would also be illegal within the Cambodian constitutional framework, not to mention the international non-recognition that would likely follow.