NEC Must Adhere to Standard of Reasonableness, Respect Due Process (Commentary of CIVICUS Cambodia Theary C. Seng)

Theary C. Seng training teachers on the curriculum "Speak Truth to Power" (in Khmer "Courage Without Borders"), Kampong Som, July 2012

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COMMENTARY

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National Election Committee Must
Adhere to Standard of Reasonableness,
Respect Due Process

Theary C. Seng, CIVICUS Cambodia Founding President

https://app.box.com

It is deeply alarming how nonchalantly the National Election Committee violated the basic standard of reasonableness and arrogantly disregarded due process in its handling of complaints of election irregularities, and how casually we have accepted this as a natural order of things in the Kingdom of Wonder. 

On 15 -16 August 2013, NEC conducted a “verification” process at lightning speed in response to complaints filed by the Cambodian National Rescue Party for 15 provinces of which NEC baselessly, magisterially dismissed all complaints except for four provinces.

Article 16.25 of the Electoral Law requires a proper public hearing, comprising of the top nine members of NEC to be present and for the filing party to have adequate time to present their case.  

What took place on Aug. 15 and 16 was a mere cross-checking of records from copies and fake documents – and nothing resembling a hearing. 

Some examples of irrefutable fraud:


- Comfrel found grave irregularity of 1104 forms used by NEC for 13 polling stations with the exact same handwriting.  Form 1104 contains the provisional election results of each polling/counting station, completed by the official of that polling/counting station.  There is no other conceivable explanation save intentional fraud.

- Forms with appalling discrepancies, inexplicable save fraud:  the copy given to CNRP has more data filled in than the one NEC has; or vice-versa, the copy has less data than the one NEC has.

- At the August 16 “verification” process, NEC cannot produce its copies of Form 1108 (summary of each polling/counting station) for 8 stations in Takmao City of Kandal Province.  CNRP claimed (based on a confidential informant) that these forms have been burned. 

Standard of Reasonableness 

On both days of the “verification” process, NEC (composing only of mid-ranking officials) summarily rejected the request of 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” (para. 8.28.1.2 of the NEC Internal Rules) – an arbitrary decision that runs contrary to its own internal rules, fundamental legal provisions, public sentiment and mounds of evidence of discrepancies that speak of fraud.  

To all these serious claims, NEC kept repeating the mantra that these complaints do not arise to “grave irregularities impacting the election results”, as if by repeating it enough times, the public can be hypnotized and deluded to the lies.  

In light of the totality of circumstances, it is not unreasonable to conclude that NEC has committed fraud in its repeated breach of basic standard of reasonableness and violation of due process in its dealing with election complaints. 

Due process is a fundamental principle of fairness 

Let me illustrate how fundamental and significant is due process (fair procedure) in light of NEC’s violation by drawing from the U.S. experience, in helping us put the situation in a proper perspective.  Though the context is different, the principle is the same. 

The U.S. Constitution states only one command twice, and that command is the Due Process Clause in the Fifth and Fourteenth Amendments: no one shall be "deprived of life, liberty or property without due process of law."  The central promise is the assurance that all levels of U.S. government must operate within the law ("legality") and provide fair procedures. 


Civil, criminal, administrative procedures are core courses of all U.S. law schools.

Criminals have been acquitted as a result of the state’s violation of due process.

The words “due process” is concerned with procedure, fairness, and application.

Simply, a proper hearing must have unbiased, impartial judicial officials,  the right for parties to present evidence and argument orally, the chance to examine all materials that would be relied on or to confront and cross-examine adverse witnesses, and a decision that is limited to the record, made and explained in an opinion.

There must be state action.  Here, NEC is an agency of the State.  

NEC in its violation of due process has deprived the Cambodian citizen of a fundamental, universal “right” (to vote), not just a state-bestowed “privilege”. 

Legal Standards 

These legal standards are specifically American, and are not an exact science.  They nonetheless offer a framework and useful articulation to the unreasonableness of NEC’s action. 

The gross election irregularities have gone beyond a mere hunch, “reasonable suspicion”, or “reasonable to believe” that criminal activity – election fraud -- was afoot.

The election complaints have probable cause of a fair probability that fraud will be found.  There exists a preponderance of the evidence in the balance of probabilities that election fraud is more likely to be true than not true.  

We can even go further to say that there exists clear and convincing evidence that NEC has committed election fraud, as the specific facts and circumstances are highly and substantially more probable to be true than not. 

It can be reasonably argued that NEC committed fraud beyond a reasonable doubt, the criminal standard.  That is, a proof has been met and there is no plausible reason to believe otherwise.   

Each irregularity of the 2013 election on its own raises at minimum the high suspicion of fraud, and when the irregularities are 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 NEC.  It is rather one of grave, gross, and systematic fraud that demand at the very least the unsealing of Security Bag A (storing all the original documents, inter alia) in order to address properly the complaints filed by the CNRP and protect the will of the people.

There exist mounds of prima facie (“on its face”) evidence.  NEC has repeatedly breached the basic standard of reasonableness in refusing to unseal the Security Bag A.  NEC has violated due process with stunning audacity and with impunity, and consequently passed on its responsibility to the Constitutional Council, again with impunity.  

We should not let NEC off the hook this easily and casually. 

PRINCIPLE at the heart of the matter 

Let me conclude by reminding us of the principle of first things: the right to vote and integrity of that vote.  The right to vote is a fundamental right, not just a “privilege”, that is enshrined in the basic United Nations documents and Cambodia’s Constitution.  It is basic to democracy, oftentimes the main measuring criterion.  Implicit in this right to vote is integrity of that vote.   

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.”  

Simply, CNRP has little choice but to defend the will of the people, if it is to be true to its democracy platform.  

The election process is expensive in terms of money and emotional energy.  Think of the value of a vote of a garment worker making USD 80 monthly – the monetary cost to her to return to her province to register to vote (USD 30 per round-trip) and to vote on election day (another USD 30 per round-trip).  Here, we have not even factor in the emotional hassle from her factory manager and the local authority.

But the voting process is most costly to the lives of the Cambodian people.  This is the heart of the matter and that is why we are (or should be) concerned about due process.

Theary C. Seng

US-trained Lawyer, Founding President of CIVICUS: Center for Cambodian Civic Education

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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.