UPDATED: How to Understand and Resolve Technical Issues of Election Irregularities (COMMENTARY by CIVICUS Cambodia)

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COMMENTARY
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How to Understand and Resolve

Technical Issues of Election Irregularities

Theary C. Seng, CIVICUS Cambodia Founding President 

Phnom Penh, 17 August 2013

I.                   CONTEXT Summary

A.    National Election Commission (NEC) is completely, indisputably biased to the ruling Cambodian People’s Party (CPP); many demands for reform of NEC over the years have gone unheeded by the ruling CPP.

B.    CPP claims victory of 68 seats to Cambodian National Rescue Party’s 55; CNRP claims victory of 63 seats to CPP’s 60 seats; NEC announced preliminary results, prior to resolving the mounting criticism of election fraud and irregularities, aligned with CPP’s claim.

C. NDI Cambodia’s Voter Registry Audit, 2013; Human Rights Watch Ruling Party Orchestrated Vote Fraud; Editorial "Cambodia's Tipping Point" and article Giving More Than 100%  in The Phnom Penh Post.  CNRP Seminar on Resolutions to Technical Issues (18 Aug. 2013)

D.   NEC conducted a “review and compare” process (rather than a proper hearing) in response to complaints filed by CNRP for 15 provinces of which the NEC baselessly dismissed all except for 4 provinces:

-          15 August 2013: Kratie Province

-          16 August 2013: Kandal, Siem Reap, Battambang Provinces

Article 16 of the Electoral Law requires a proper public hearing, comprising of the top nine members of the NEC to be present and for the filing Party to have adequate time adequately to present their case.  What took place on Aug. 15 and 16 was a mere cross-checking of records.

On both dates, the NEC summarily rejected the request of the CNRP to review the original documents sealed in the “Security Bag A”, dismissively stating that the irregularities do not arise to level of “grave irregularities, impacting the election results [seat allocation]” (para. 8.28.1.2 of the NEC Internal Rules) – an arbitrary judgment that runs contrary to public sentiment and mounds of evidence.

E.     Seat allocation is not based on a fixed number of votes obtained for all 24 provinces.  Rather, seat allocation is based on a multi-step formula using the law of average particular to each province.  It factors in:

-          Ballots cast considered VALID

-          Ballots cast considered VOID

-          Figure of seat allocation for that particular province, (e.g. Siem Reap has 6 seats; Kampong Cham, 18; Kandal, 11)  

For example (as explained by a senior CNRP official to CIVICUS Cambodia), in Siem Reap, let’s say, hypothetically:

-          300,000 VALID ballots cast [total votes cast minus void ballots] 

-          CPP = 160,000

-          CNRP = 120,000

STEP ONE:  total votes cast minus void ballots divided by total seat for that province equals the “quota”.  (The quota is the number of votes a party must receive in order to get one N.A. seat for that particular province.)  

Total VALID votes                                                    300,000
_______________  =     QUOTA      =    50,000       _______
            6                                                                            6

STEP TWO:                                      CPP = 3          CNRP = 2

Party valid votes                                 160,000           120,000
______________  =  N.A. seat           _______          _______
       quota                                             50,000            50,000

Five (5) seats have been allocated of the total possible 6; one seat remains.  The formula to get this remaining seat is:

STEP THREE:                     CPP = 40,000              CNRP = 40,000

Party valid votes                     160,000                       120,000
_____________                      _______                      _______
seat received + 1                     [3+1] 4                        [2+1] 3

In this case of a tie, the seat is determined by the casting of a die (lottery).

However, if the CPP had received a total valid votes of 160,001 (rather than 160,000), this remaining 6^th seat would have gone to the CPP based on the Step Three formula. 

Effectively, in this hypothetical, the CPP would have received one National Assembly seat based ONLY on one extra valid ballot!  Herein lies the heart of CNRP’s contention!  The devil IS really in the details!

F.   For example, in Kandal Province, CNRP claims it needed only 168 more votes for another N.A. seat.  The CNRP is asking for a re-vote for Polling Station No. 1204 at Sa-ang Phnom commune/khum in Sa-ang district/srok, which was forcibly, prematurely and unduly closed just after 9:00 am on Voting Day, July 28, 2013 (legal and normal closing time: 3:00 pm).

Only 80 citizens were able to cast their ballots while over 600 were registered as voters at that polling station. Because for the whole Kandal province/khet the discrepancy in figures for the CNRP to be allocated an extra National Assembly seat is razor-thin, only 168 votes on a total of 648,737 ballots casted ( 0.00025%), a re-vote is fully justified.

II.                PRINCIPLE at the heart of the matter

Integrity of the Votes.  The right to vote is a fundamental right enshrined in the basic international documents as well as each country’s Constitution.  It is basic to democracy, oftentimes the main measuring criterion.  Implicit in this right to vote is that the integrity of the vote is ensured.  

We must protect the will of the Cambodian people, who against all odds (of fear and intimidation, an unlevel playing field) courageously voted their conscience.  The reasons to protect the integrity of the votes (the people’s voices and aspirations) should not—though easily can—be drowned out by the political brinkmanship and bickering and the mentality of resignation, “Well, this is Cambodia.”  

The process is expensive in terms of money and emotional energy.  But the process is most costly to the lives of the Cambodian people.

III.             POLITICAL ISSUES to Irregularities

A.    National Democratic Institute  Cambodia’s Voter Registry Audit, 2013

-         Fifteen per cent of voters – about 1.2 to 1.3 million of 9.6 million registered voters– unable to vote because of list irregularities;

-          Approx. 1 million ghost names on the voter list;

-          Approx. 200,000 duplicate names.

B.     Human Rights Watch

-          Ruling Party Orchestrated Vote Fraud: Donors Should Demand Independent Investigation of Election Irregularities (31 July 2013)

IV.             TECHNICAL ISSUES to Irregularities (mainly, voting day/vote tabulation)

A.    ID Cards

NDI found that at 60 percent of polling stations, citizens with adequate, valid documentation were turned away. And in a quarter of the polling stations, people were allowed to vote without a valid ID (Cambodian Opposition Rejects Election Results The New York Times, 29 July 2013)

B.     Problems of Discrepancies in Forms 1102, 1104, 1108

Form 1102

-          Original copy in Security Bag A for that polling station

-          Issues: 

1.      Both CNRP and election monitors claim discrepancies between their copies of form 1102 with the one used by NEC/PEC/SEC.

2.      Comfrel notices certain 1102 forms erased with “white-out”

Form 1104

-          This form is filled out by the polling station official

-          Issues: 

1.      Both CNRP and election monitors raised the gross irregularity of seeing 1104 forms used by NEC for 13 voting booths with the exact same handwriting, an impossibility as each 1104 is the unique report of each voting booth on voting day.

2.      The figures for votes cast are recorded for the 3 major parties (CPP, CNRP, Funcinpec), but no figures of votes cast are given for the smaller parties. 

-          Implications:

1.      discrepancy between total votes cast for each party as recorded and the actual total votes cast;

2.      leaving room for fraud in changing “void” ballots to “valid” votes for small parties with no seat, affecting the QUOTA figure, and consequently impacting on seat allocation.

Form 1108 – summary of everything for each voting booth: the figures of ballots cast, ballots void, registered number of voters for that booth, etc.  

-          Very difficult to alter

-          Original forms are sealed in the Security Bag A,

-          No copies given to monitors or political parties

-       At the NEC process of resolving disputes on 16 Aug. 2013, the NEC cannot produce its own copies of this 1108 form for 8 voting booths in Takmao of Kandal Province; the CNRP claimed (based on a confidential informant) that these forms have been burned and has requested to see the original forms in the Security Bag A.  The NEC refused saying that the situation does not arise to “grave irregularity affecting election result.”

C.    Manipulation of “VOID” Ballots

Direct impact – obviously, ballots incorrectly deemed “void” will decrease the total votes for seat allocation.

Indirect impact in the calculation of seats allocation based on the quota and the law of average.  For example, the incomplete filling out of form 1104 in leaving out figures for votes cast for smaller parties opens up space for fraud in the tampering of numbers by moving “void” ballots in CNRP to smaller parties without any seat as “valid”, which impact on the calculation for QUOTA figure and ultimately seat allocation.

V.                CONCLUSION

The above information is culled from reports of election monitoring organizations, mainly Comfrel and NDI, and of the CNRP, and based on my experience of training political party agents on the election process in the 2002 commune and 2003 national elections as well as having served an international election monitor in the Bangladesh elections, 2008.

This Public Announcement only gives a glimpse, only the tip of the iceberg, into the grave irregularities which form the basis for CNRP’s contestation of the preliminary election results announced by the NEC.  

Each irregularity on its own raises at minimum the high suspicion of fraud, and when the irregularities taken together, they form an invidious, intentional, systematic fraud to deny the people their will and their voices.  

In light of the pervasive grave irregularities, the situation is far from one of just suspicion of and carelessness on the part of the NEC.  It is rather one of grave, gross, and systematic fraud that demand at the very least the unsealing of Security Bag A (inter alia, storing all the original documents) in order to address properly the complaints filed by the CNRP.  

The standard of reasonableness has been breached repeatedly by the NEC in refusing to unseal the Security Bag A.

VI.             RECOMMENDATIONS.  Simply,

A.    At the contested voting booths, unseal the Security Bag A which contains all the original documents, among other items, for each booth. 

B.     And if need be, conduct a re-vote for that particular polling station.

C.     Establish an independent Joint Committee of Inquiry to address the pervasive, grave irregularities.  The composition should not include the NEC which is at the heart of the problem, and must include election monitoring civil society organizations and the UN, if it is to gain the trust of the Cambodian people, the owners of these votes.

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CIVICUS: Center for Cambodian Civic Education ("CIVICUS Cambodia") is a nonprofit, nonpartisan educational, non-governmental organization dedicated to promoting an enlightened and responsible citizenry committed to democratic principles and actively engaged in the practice of democracy and reconciliation in Cambodia and the larger, globalized world.

Up to now, Cambodia has had only a society of "subjects" and “survivors”, not of “representatives” nor “citizens”.   We have been "subjects" of French colonialism, Japanese/Vietnamese occupation, neo-colonialism, the monarchy, and now fascism/anarchy under the guise of liberal democracy; the Khmer Rouge made us "survivors".  A Cambodian as a survivor is either a “survivor-authoritarian” if the person is in a position of power or a “survivor-subject” if  the common person.  

CIVICUS Cambodia defines a "citizen" as a Cambodian who possesses both rights and responsibilities, and our focus starts with young children in educating them not only of their inherent rights but of their civic responsibilities to each other.  We also engage with the rest of the population to inform about and encourage them on exercising meaningful citizenship.