Subedi’s proposals won’t improve Cambodian elections

[A considerably shortened version of this was printed in the Phnom Penh Post on 27 September 2012.]

Predictably, the Sam Rainsy Party and its friends abroad have seized on what they can in the July report by Professor Surya Subedi, the UN special rapporteur on human rights in Cambodia, in an effort to discredit next July’s general election well in advance. The ill-considered interventions in Cambodian politics by the Philippine Senate on 17 September were phrased as support for Professor Subedi’s report.

Unfortunately, many of Professor Subedi’s comments and recommendations lend themselves to the opposition’s attempts to convince the world that, no matter how many international and national observers endorse the conduct of any election, it still wasn’t fair and the opposition was cheated out of the victory it deserved.

The Subedi report contains three sections on the elections. The first section is mainly descriptive and includes factual material about the Constitution, laws and previous elections that would be well known to most Cambodians, and foreigners could find it easily on the internet or in reference books. Its main purpose seems to be to create an illusion of “objectivity” around Professor Subedi’s unsupported criticisms.

These criticisms of Cambodian elections almost never rise above the level of “concerns were raised that …”. Who raised the concerns, and whether or not the concerns were valid, is apparently beneath the notice of the special rapporteur. Highly illuminating in this regard are these words: “Expressing frustration with the existing electoral process, a Cambodian citizen wrote in an individual petition to the Special Rapporteur that, if the current state of affairs continued, the ruling party would win the elections forever and that there was no hope for other political parties”.

That’s right: one citizen wrote to the special rapporteur complaining, not of any specific wrongdoing by anyone, but only that he or she doesn’t like past election outcomes and fears that his/her favourite party isn’t likely to win an election in the near future. This one complaint about nothing in particular (“the current state of affairs”) is included in the “Conclusions” of the report. Further, this irrelevance is the only “evidence” for the assertion that many Cambodians are somehow “effectively disenfranchised” by “significant barriers”. (What those “barriers” are is not explained.)

The six paragraphs of the “Conclusions” section are peculiar. The title of the section obviously implies that Professor Subedi is here summing up or pointing out the logical consequences of evidence considered in the previous section. This is not what the section consists of, however, and not only because the preceding section contains very little evidence of anything. The “Conclusions” raise new points, most of them platitudes that could have been written in New York, without him ever having visited Cambodia.

Thus, paragraph 59 reminds readers of the Paris peace agreement of 1991 and says that “democratic institutions created under the Constitution” need to “work effectively and independently”.

Paragraph 60 says that Professor Subedi wants to have a “meaningful and constructive dialogue with the Government” about “strengthening democracy and improving the electoral process”.

Paragraph 61 contains the complaint from a single citizen quoted above and the implications about unnamed barriers preventing people from voting.

Paragraph 62, at considerable length, says only that all officials involved with elections “should ensure conformance to international standards before, during and after the casting of votes”.

Paragraph 63 says that the electoral laws need to “be compatible with international standards” – Professor Subedi must have forgotten that in paragraph 49 he said they are already compatible with international standards.

Last and least, floating on a stream of bad rhetoric, paragraph 64 says that meeting international standards for elections requires Cambodia to follow his instructions, which are contained in the following section, headlined “Recommendations”.

I will not inflict on the reader a detailed account of each of the 18 recommendations. There are two or three that might be desirable, and no doubt the government will consider whether their benefits outweigh their costs. Most of the recommendations are impractical, unnecessary and/or counterproductive if the object is really to improve electoral democracy.

On practicality, for example, Professor Subedi writes: “The National Electoral Committee should appoint professional election administrators to replace village chiefs during voter registration and on election day …”. There are more than 13,000 villages in Cambodia. How many professional election administrators are there in the country? Are there any?

Equally unrealistic is his proposal “to create another institution, such as a special election tribunal or election court … to resolve election-related disputes”. Cambodia is already stretched to provide competent and experienced judges for its existing courts. Creating new courts would only exacerbate the problem, and would not reduce complaints of the opposition, which would see the judges as tools of the CPP.

On voter registration, Professor Subedi appears to be unfamiliar with the actual procedure. For example, he says that the voter list should be “available to candidates from all political parties upon request”. In the real Cambodia, the lists are not secret; they are posted publicly at commune offices months before the election, and citizens are encouraged to come and check that their name is entered correctly on the list and to record the number next to their name, which makes voting a lot quicker on election day. The public posting of the voting list would also seem to make pointless Professor Subedi’s call for a totally new electoral roll. If anyone thinks there are names wrongly included, they can point to them on the existing list.

National Election Commission

Professor Subedi also has some recommendations about the National Election Commission. These would be likely to have an anti-democratic impact. According to him, “There should be consensus among the major political parties represented in the parliament on the appointment of the president and members of the National Election Committee and the provincial election committees”.

“Consensus” means agreement. Whether for good or ill, Cambodian political parties seldomly all agree with each other. Perhaps Professor Subedi is unaware of the aftermath of the 2003 National Assembly election, when a minority of just over one-third of the National Assembly prevented the installation of a new government for a year. His proposal means that every party with a member in the National Assembly would have a de facto veto on appointments to the NEC and PECs. In addition to being anti-democratic, such a provision would probably mean that the NEC and PECs could never be formed.

Even more absurd is the proposal “to ensure that, within the composition of election bodies of all levels, there is balanced representation of all political parties with representation in the National Assembly”. In this context, it is hard to see how “balanced” can mean anything except one of two things: “equal”, so that each of the five parties has the same number of representatives on all election bodies; or “proportional”, so that the number of election-body representatives of each party corresponds to their relative number of seats in the National Assembly. Either arrangement would be ridiculous.

If there were equal representation in the NEC, for example, there would be one (or two) representatives from each of the five parties in the National Assembly. The appointees of the four smallest parties (or even just three of the four) could impose regulations and rulings to discriminate against the CPP, which won 90 of the 123 seats in the last general election.

On the other hand, if “balanced” is taken to mean “proportional”, the proposal becomes completely impractical. Funcinpec and the Norodom Ranariddh Party each have two seats in the National Assembly. If they were each given one position on every election body, then the Sam Rainsy Party, which has 26 NA seats, would be entitled to 13 positions, and the CPP would get 45. This is likely to make the NEC and other election bodies a little unwieldy. But it’s even worse than that, since the Human Rights Party has three members of the NA, and it can hardly be expected to appoint 1.5 people to positions. Therefore, on the current composition of the NA, proportional representation on election bodies would be possible only if the number of appointees to each such body were 123.

Media

“All major political parties should have fair and equal access to the mass media to convey their messages to the electorate. This should include the opportunity to broadcast their message during primetime viewing hours. The way forward could be to establish an independent committee on the management and use of State-run television and radio stations, allowing all major political parties that are represented in the National Assembly to fully use the stations until the day of election campaign [sic] on an equal footing.” I have quoted Professor Subedi’s paragraph 70 in full because it illustrates so well the way in which he relies on nice-sounding principles without bothering to define anything precisely or to investigate the implications.

How, for example, is the government to ensure that mass media access is both fair and equal? Fairness and equality are often in conflict with each other. For example, if party A has a million members and party B has 20 members, would it be fair to require the mass media to give them equal access? Or, if A and B have the same number of members, there are some people who would argue that it is only fair to allow A to buy extra access if it has the money to do so. (I am not one of those people, but there are a number of them around, and they aren’t usually regarded as a lunatic fringe in a free-market economy.)

A great deal of additional confusion is created by Professor Subedi’s seeming inability to remember what he is talking about. In the three sentences of paragraph 70, he uses three different definitions of the relevant media. The first sentence speaks simply of “mass media”, which include TV, radio, newspapers and magazines, books and online publications, outdoor media such as billboards – anything intended to reach a mass audience (“Public speaking and event organising can also be considered as forms of mass media”, according to Wikipedia). The second sentence suddenly limits the mass media to television, which is the only mass medium that has prime time viewing hours. The third sentence further limits the definition to state-run television but expands it by including radio stations (also presumably state-run, although, with Professor Subedi, one can never be sure).

Requiring either fair or equal access for all the political parties to “the mass media” would be impossible: imagine the hordes of enforcers demanding that a royalist newspaper give equal space to a republican party or include an article that is fair to it, or demanding that the signboard outside the CPP or SRP headquarters include the logos of the other parties.

Perhaps, having written the first sentence, the special rapporteur had an inkling of such possibilities. And so, without deleting or modifying the first sentence, he changed the subject to television stations: fairness or equality during prime time. But another problem arises. Most of the television stations in Cambodia are privately owned. Is it part of Professor Subedi’s assignment from the UN to encourage government control of the content broadcast by privately owned Cambodian television stations? Not likely.

Therefore, another quick change of subjects: he is talking about state-run electronic media. (Moreover, in passing, he resolves the contradiction between fairness and equality in favour of equality: “equal footing”.) Anyone have a problem with that?

But parties competing in Cambodian elections are already given equal time on state electronic media to present their platforms to the public. Professor Subedi acknowledges this in passing earlier in the report, but seems to have forgotten it by the time he was writing his recommendations. He also seems not to have noticed that Cambodia is well ahead of international standards in this respect.

The current arrangement is equal but not fair: it is less than fair to the bigger parties and more than fair to the smaller ones. In my opinion, that kind of bias is appropriate, because it make it easier for voters to change their allegiances if they are so inclined, and therefore tends to keep the space for electoral competition more open.

Professor Subedi proposes making things more difficult for smaller parties. If his recommendations were adopted, only parties already represented in the National Assembly would have access to free air time on state TV. This is a formula for preventing anyone from breaking into the existing parliamentary club. Had his recommendations been in force at the time of the 2008 election, the CPP, SRP and Funcinpec, the only parties represented in the NA, would have been the only parties able to present their views on state TV and radio. The Human Rights Party and Norodom Ranariddh Party, and all other parties, would have been excluded. In those conditions, would the HRP and NRP still have been able to win seats? No one can know for sure, but it certainly would not have been easier for them.

The real point of it all

Professor Subedi’s final electoral point, and of the report as a whole, is a not very well-veiled argument for pardoning Sam Rainsy for his convictions and sentences arising from his destruction of border posts. Professor Subedi says Rainsy was “convicted on charges that are allegedly politically motivated”.

That is correct: Sam Rainsy and others in his party have alleged that the charges against him were politically motivated. So what? Even if Sam Rainsy is correct about that: So what? The Sam Rainsy Party at the time of the recent commune elections charged that various CPP officials had done this or that wrong, contrary to the law. Weren’t those charges politically motivated?

What matters about charges is whether or not they are true. The motives of those who file the charges are irrelevant unless it can be shown that their motives might cause them to accuse someone falsely. So whether or not the charge that Sam Rainsy illegally pulled up border posts was politically motivated doesn’t really matter unless Sam Rainsy says he didn’t pull up the posts. That is not the situation. Sam Rainsy has publicly admitted destroying the border posts, and has subsequently urged other Cambodians to do the same thing.

Nevertheless, Professor Subedi continues: “A political solution should be found to enable him [Sam Rainsy], as the leader of the opposition, to play a full role in Cambodian politics”.

Obviously, the SRP and other opposition parties should be able to participate with equal rights in the next election and to play a full role in politics more generally. But that dictates nothing about the role of any particular individual. If the SRP were to charge a high CPP government official with some crime, would Professor Subedi agree that the courts should not proceed with the charge because that might interfere with the CPP’s ability to play a full role in politics?

The same paragraph of Professor Subedi’s report includes: “The Special Rapporteur believes that a concerted effort by the ruling and opposition parties towards reconciliation is in the interests of stronger and deeper democratization of Cambodia.” Once again, this is true or false depending upon what Professor Subedi means.

If “reconciliation” means that the governing and opposition parties should normally advocate the same policies, then that is not at all a deepening of democracy, because it means that the choices offered to voters aren’t real.

On the other hand, if “reconciliation” means that the governing and opposition parties should agree to debate their differences before the Cambodian public and recognise the public’s decision in the subsequent vote instead of pretending that the decision wasn’t valid because this or that condition wasn’t met, that would indeed be an improvement in Cambodia’s democracy. But then there wouldn’t be much of a role left for people like Professor Subedi.

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