What the Law Says on National Assembly Formation

How is the National Assembly Formed?

What the Law Says

I am sorry, but on this issue of validity of the current CPP-formed National Assembly and the CPP-formed Government, it is PRIMA FACIE (on its face) UNCONSTITUTIONAL.

The legal analysis quoted by the media, e.g. Phnom Penh Post, has been REALLY, REALLY SHODDY and EXTREMELY ELEMENTARY on this matter.

For those who care, please read HOW IS THE NATIONAL ASSEMBLY FORMED? -- my legal brief on the Constitutional provisions, Constitutional Council's decision and spirit and intent of the matter, focusing particularly on the 1993 formations.

This legal brief has been tweaked a few times, but here's the most recent version: https://app.box.com/s/rmvge0099mhbr08zjdnq

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The UNCONSTITUTIONAL ROYAL DECREE

("additional law to Constitution", not an amendment)

How the current unconstitutional CCP-formed National Assembly and CCP-formed Government came to be, using the unconstitutional "additional law to the Constitution" (Royal Decree) of July 2004 that is NOT a Constitutional amendment:

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 5:

The 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 irregularities include voting that is (i) by the sole public raising of hands (ii) with absolutely no debate allowed and (iii) in the same NA session with same unconstitutional voting process as casting the vote of confidence for the entire Government Cabinet posts.

The Royal Decree was politically expedient but manifestly, prima facie unconstitutional, particularly in its violation of due process and “liberal multiparty democracy” principles.

RELEVANT LAWS

Here are the relevant provisions of the CC Decision and the Constitutional provisions (amended 2006) that bear weight to the issue of National Assembly formation and the unconstitutionality of the present “National Assembly” and the “Government” unilaterally formed by the CPP:

The Constitutional Council issued its decision on July 22, five days before the election Sunday, July 2003:

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.

The emphases here are: (i) the election results producing 120 members being only one necessary condition of formation, and (ii) the distinction between NA “formation” and NA “functioning”. 

Cont'd at www.thearyseng.com