Lawmakers and politicians say there are at least two paths available for the formation of a new government, despite the boycott of an upcoming swearing-in ceremony by two parties.
The Sam Rainsy and Human Rights parties have vowed to boycott the ceremony, which is central to the formation of the National Assembly, but officials said options remain for the formation of the government that would force both parties to participate or risk losing seats they won in July's election.
The first option for the formation of the government would be an interpretation by the Constitutional Council on whether the election law requires parties to give up their seats if they continue to boycott the results. The second is an amendment of the same election law by the current National Assembly by the majority Cambodian People's Party ensuring that a boycott would end in the loss of seats.
Officials said last week the first option would be preferable to maintain plurality of government, as the second option would entail the elimination of a minority party's voice by the majority party. But opposition leaders said the current National Assembly has no role to play, as its session was closed earlier this year.
Nguon Nhil, first vice president of the present National Assembly, said on Thursday that the plenary meeting of the National Assembly, in which new members are set to be sworn in following the official announcement of election results in September, won’t be halted by the intended boycott of the two opposition parties.
With the CPP's apparent win of 90 National Assembly seats in July's election, the party can easily turn out a two-thirds majority of the 123 total seats, he said. That would allow the party to amend the constitution, or to quorum for a vote of confidence in the creation of the new National Assembly and the appointment of the prime minister and the cabinet.
Although the election has passed, the present National Assembly continues its duties until 60 days after the formal announcement of results by the National Election Committee and until the Constitutional Council has competed reviewing all appeals of election complaints, he said.
However, opposition leader Sam Rainsy said recently the third mandate of the National Assembly already has been closed, following the official pronouncement by National Assembly President Heng Samrin in April. With the session closed, the National Assembly has no legal basis to reopen and amend laws, he said.
Furthermore, if a new National Assembly were to form without the participation of the Sam Rainsy Party, which won 26 seats in the election, and Human Rights Party, which won three, the parliament would be illegitimate, he said.
The formation of the government without the elected parties would not represent the will of the people in the election, Sam Rainsy said.
"If the Assembly wants to hold a meeting, it can, but a big part of it would not represent eligible voters," he said.
He declined to comment on whether the opposition would continue its boycott, pending results of a Constitutional Council review of its election complaints, including widespread vote fraud.
A continued boycott or further delays in the formation of the government will "depend on the result of the complaints," he said.
The Constitutional Council is set to consider the Sam Rainsy Party's appeals Tuesday.
Son Soubert, a member of the Constitutional Council who is in the Human Rights Party, said recently the new National Assembly can form as soon as the Council determines the election was rightful.
But, he said, the National Assembly must have the participation of all 123 elected representatives, meaning a boycott by the opposition could halt the process.
With 90 seats in the new National Assembly, the CPP will have more than the two-thirds necessary to quorum and pass legislation, he said, but the National Assembly will not be legitimate.
"Now we don't have a law that states, 'an illegitimate Assembly cannot operate in case some political parties boycott,'" he said. "This is the loophole."
The loophole will be interpreted by the Constitutional Council, he said, adding that the CPP also had a majority of members in the Council.
"Now they control all," he said. "So when it goes to the Constitutional Council, they have a two-third [majority] there. I say this as a citizen, not a Constitutional Council member."
Meanwhile, the boycott of results and subsequent swearing-in ceremony reflects the responsibility of lawmakers to their voters, if they have clear, reasonable arguments, said Chhim Phalvorun, director of the Civic Population Institute and an expert on constitutional law.
Such a boycott with clear arguments should not require relinquishing seats, which would lead to the feeling that voters were looked down upon, he said.
The election law, however, cannot be amended if the country is in a state of emergency, he said, nor if it meant impacting the a multi-party system or constitutional monarchy, which are outlined in the constitution.
"It means the majority in a democratic Assembly can amend the constitution," he said, "but they cannot conspire to do so when the country is in a state of emergency, or conspire to eliminate Article 51, which defends a democratic, multi-party [system]."
Any interpretation, though, on whether an amendment is constitutional, or whether it would adversely affect a mulit-party system, would be up to the interpretation of the Constitutional Council, which remains CPP dominated.
One last consideration: were the boycotting parties forced to give up their seats to the other competing parties, the next National Assembly would actually contain more parties than any session in the past.