Seen and heard on Ms. Theary C. Seng's Facebook accounts:
The paragraph 1 of the article 76 of the Constitution stipulates: “The National Assembly is composed of at least 120 deputies”. This means that 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. [Constitutional Council's 22 July 2003 decision]
I will argue in this Legal Commentary that:
1. 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 first session (iii) at the invitation and presence of the King, and (iv) must take an oath before assuming official functions.
Only when these four conditions have been met is the National Assembly fully, legally, constitutionally formed.
2. 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.
3. 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.
Article 82 Constitution (amended 2006):
The National Assembly shall hold its initial session no later than sixty days after the election period, and as convened by the King.
Before starting its work, the National Assembly shall confirm the validity of each Member’s mandate and vote separately to choose its President, Vice-Presidents and all members of various Commissions of the National Assembly, by an absolute majority vote of all Members of the National Assembly.
4. The formation of the National Assembly and the formation of the Government are separate but sequential processes: first the National Assembly, then the Government.All National Assembly Members shall, before taking office, take an Oath of Allegiance as contained in Annex 5 of this Constitution.
Royal Decree ("additional law"), July 2004: Article 3
If the objectives of the procedures stipulated in Articles 82 and 119-New of the Constitution cannot be achieved, the National Assembly at the request of the party that wins the most seats in the National Assembly, shall proceed with a package vote to elect a President and Vice-Presidents of the National Assembly, as well as Chairpersons and Vice-Chairpersons of the Commissions of the National Assembly and simultaneously hold a vote of confidence in the Royal Government.
Article 5The package voting shall be conducted without debate or discussion and no explanation is required after the result of the package voting is released.Members of the National Assembly may only vote, in favour of or against the package list submitted by the oldest Member of the National Assembly. The package voting shall be conducted by a show of hands.
The Royal Decree was politically expedient but manifestly, prima facie unconstitutional, particularly in its violation of due process and “liberal multiparty democracy” principles.