The Reuters News Agency reported yesterday:
A quorum of 120 out of 123 lawmakers was needed to launch a new national assembly before the approval of a new cabinet, said attorney Sok Sam Oeun, executive director at Cambodia Defenders Project, an organization that offers free legal aid.
Hun Sen maintains that a 2006 amendment would allow his ruling CPP, given the number of seats it says it won, to start the process alone without the CNRP.
Sok Sam Oeun disputed that, saying the amendment does indeed allow the approval of a new government with only 63 lawmakers present but, before that stage, at least 120 had to approve the start of a new parliament.
These comments by a Cambodian lawyer Sok Sam Oeun, who works with the Cambodian Defenders’ Project, have raised a storm on social networking sites such as Facebook, where Cambodian National Rescue Party (CNRP) supporters are visibly upset regarding the Prime Minister’s statements that the Cambodian People’s Party (CPP) will go ahead to form the Royal Government with or without the participation of the opposition parties in the National Assembly.
While the official results are yet to be declared by the National Election Committee, which is the national body responsible for the organization of electoral polls, the Ministry of Information released preliminary results saying that the ruling CPP had secured 68 seats while the rival CNRP managed to get 55 seats out of the 123 seats in the National Assembly.
The Constitution of Cambodia [English: PDF] came into force on 24 September 1993 after two decades of civil war and strife. The outline for the creation of the Cambodian state and its legal system was envisioned in the Paris Agreements. The Paris Agreements resulted in the creation of the Constituent Assembly which later transformed itself into the National Assembly. The Assembly was initially composed of 120 members. The Drafting Committee, composed of 12 members, was chiefly responsible for the preparation of the draft of the Constitution which was later reviewed and endorsed by the Late King Norodom Sihanouk resulting in the creation of a constitutional monarchy.
There are three articles of the Constitution which are most relevant for the resolution of the imbroglio around the “quorum” required for validating the first session of the National Assembly.
Article 76:
The National Assembly shall comprise of at least 120 members.
The Members of the National Assembly shall be elected by universal, free, equal, direct suffrage and secret ballot.
The National Assembly’s members are re-eligible Khmer citizens of both sexes, enjoying the right to vote, aged at least 25 years and having Khmer nationality by birth, have the right to be candidates to the National Assembly.
The organization in charge of preparing the elections, their modalities and functioning shall be determined by electoral law.
(emphasis mine)
-
Article 88 new (two):
The National Assembly sessions shall be public.
The National Assembly can convene in camera at the request of the President or at least one-tenth of its Members, of the King or of the Prime Minister.
The session of the National Assembly is only valid, when there is:
(a) the quorum of over two-third of all its Members for the votes requiring the majority of two-third of all its Members.
(b) the quorum of over half of all its Members for the votes requiring the absolute majority of all its Members.
(emphasis mine)
-
Article 90 new (two)
The National Assembly is an organ invested with legislative power which exercises its functions according to the provisions of the Constitution and the laws in force.
The National Assembly votes the national budget, the State planning, the borrowings, the lending, the various pledges of financial warranties, and the creation, modification or abolition of taxes.
The National Assembly approves the administrative account.
The National Assembly votes the amnesty law.
The National Assembly votes the law on war declaration.
The aforementioned votes must obtain the absolute majority of all the National Assembly’s members.
The National Assembly grants a vote of confidence to the Royal Government at the absolute majority of all its Members.
(emphasis mine)
The portions which I have highlighted above are of utmost relevance and will aid us in determining the plain meaning of the terms and even the original intent of the drafters of the Constitution. Article 76 sets the minimum number of Members that the National Assembly requires to 120. Article 88 provides the definition of “quorum” requisite for validating a session of the National Assembly and the conditions under which a bill/proposed legislation or a vote of confidence may be passed. Article 90 mandates that the National Assembly must grant a vote of confidence to the Royal Government at the absolute majority of all its members.
Now, what is quorum? According to Law.com, quorum is:
“the number of people required to be present before a meeting can conduct business. Unless stated differently in bylaws, articles, regulations or other rules established by the organization, a quorum is usually a majority of members. A quorum for meetings of corporate boards of directors, homeowners’ associations, clubs and shareholders meetings are usually set in the bylaws. The quorum for meeting of governmental bodies such as commissions and boards are usually set by statute.“ (emphasis mine)
In accordance with the doctrine of statutory construction, the plain and straightforward meaning of the words of a statute (or law) is given primacy over any application of interpretative canons or principles. The Articles of a constitutional document have to be read in context, as a whole, rather than as separate portions. Article 76 of the Constitution of Cambodia does not contain the term “quorum”. It simply defines the minimum number of Members of the National Assembly in its first sentence. However, the term quorum is used in Article 88 new (two), where conditions requisite for the validation of a session of the National Assembly are laid out. Furthermore, Article 90 mandates that the Royal Government must receive a vote of confidence in the National Assembly with an absolute majority.
The National Assembly has a strength of 123 members at this point of time. Therefore, any party or a coalition of parties that intend to form the Royal Government must receive a ‘vote of confidence’ by absolute majority in the Assembly in accordance with the requirements laid out in Article 90 new (two). In order for the session to be valid and the vote of confidence to pass, at least 63 of the members must be present and voting in favour of the motion.
Beyond the plain and straightforward meaning of Articles 76, 88 and 90 read in context, under the doctrine of statutory construction, the principle of ‘Expressio unius est exclusio alterius’ or ‘the express mention of one thing excludes all others’ is also applicable. The express determination of the term ‘quorum’ for the purpose of validation of a session of the National Assembly is made in Article 88, hence the attempt at creation of a ‘super-quorum’ requirement or a manufactured condition on top of the constitutional requirements is simply disingenuous.
The Drafting Committee of the Constituent Assembly of Cambodia were clearly inspired by other working, modern constitutions from which they imbibed principles of natural justice and equity, of personal freedoms and other individual liberties and incorporated them in their own draft to pave the way for the construction of a modern Cambodian state. Therefore, it is equally important to observe other constitutional systems around the world in order to understand the intent of the drafters of the Cambodian constitution.
Article 24 of the Constitution of the Fifth French Republic states:
“Members of the National Assembly, whose number must not exceed five hundred and seventy-seven, shall be elected by direct suffrage.”
This article does not make any reference to quorum. Other sections in the document contain terms such as “majority”, “absolute majority”, “three-fifths majority” etc have been used.
Section 2 of the US Constitution (incorporating the changes made by the Fourteenth Amendment) says:
“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”
Section 3 of the US Constitution says:
“The Senate of the United States shall be composed of two Senators from each State [...]“
The term quorum has been defined separately in Article 1 section 5, Article 2 section 1 and the Twelfth Amendment.
Articles 80 and 81 of the Constitution of India mandate the composition of the Council of States (Rajya Sabha) and House of the People (Lok Sabha) limiting the number of MPs in the Council of States to 250 and the House of the People to 550. In practice, there are only 245 members in the Council of States and 545 members in the House of the People. Article 100 defines quorum for the purpose of voting by members in both of the houses.
Given the above factual information, we can safely conclude that Article 76 ought to be read in the manner it has been drafted. The quorum required for validating a session of the National Assembly has been defined under Article 88. Therefore, the CPP can form the Royal Government without the support of the parties in the opposition.
0 comments:
Post a Comment