Re: Cambodia: Legal Foundation And Framework For The Country's Judiciary Required

Khmer people are like dogs,

outside lawyers must watch over
Cambodia 's judges all the time .



n Sep 1, 6:36 pm, Chim <Chi...@xxxxxxx> wrote:
Cambodia: Legal Foundation And Framework
Tuesday, 1 September 2009, 11:54 am
Press Release: Asian Human Rights Commission

Cambodia: Legal Foundation And Framework For The Country's Judiciary
Required

The Asian Legal Resource Centre (ALRC) wishes to bring to the
attention of the Human Rights Council a major lacuna that constitutes
one of the most fundamental obstacles to the enjoyment, protection and
promotion of human rights in Cambodia. The lack of the required laws
on the statute of judges and prosecutors as well as the lack of the
legal underpinning to the organisation of the judiciary are resulting
in the judiciary not functioning effectively. This crucial institution
is fundamental to the actualisation of human rights and remains
ineffective and lacking in independence and capacity to function. It
is imperative for any discussion on human rights in Cambodia, for
these issues to take centre-stage. Without an effective, legally
established and independent judiciary, human rights violations have no
effective deterrent and impunity is guaranteed.

By virtue of the Paris Peace Agreements of 1991, Cambodia is bound to
all relevant international norms and standards of human rights. It is
to set up an independent judiciary so that, as §2 of Annex 5 on the
“Principles for a New Constitution for Cambodia” to the “Agreement in
a Comprehensive Political Settlement of the Cambodia Conflict,”
aggrieved individuals will have the courts adjudicate and enforce
their rights.

Cambodia has since honoured many of its international obligations as
it has adhered to international human rights instruments and has
enshrined many human rights in its 1993 Constitution. As spelled out
clearly in the preamble to this Constitution, Cambodia is supposed to
be a pluralistic liberal democracy governed by the rule of law and
respecting human rights. Its Art.31 states that “The Kingdom of
Cambodia shall recognize and respect human rights as stipulated in the
United Nations Charter, the Universal Declaration of Human Rights, the
covenants and conventions related to human rights, women’s and
children’s rights.” In its decision dated 10 July 2007, Cambodia’s
Constitutional Council declared that all recognised human rights have
become an integral part of Cambodian law.

Cambodia is a constitutional monarchy and, according to Art.8 of its
Constitution the king is the guarantor of the rights and freedoms of
his people. To perform this duty he has the assistance of the
judiciary which, for its part, is also the protector of the rights and
freedoms of the Cambodian people (Art.128 if the Constitution).

The Constitution has specifically stipulated a number of laws that
need to be enacted, namely, the law on the statute of judges and
prosecutors and also the law on the organization of the judiciary
(ART. 135 of the Constitution). However, since the creation of the
Constitution, these two important laws have not seen the light of day.
Amongst the main reasons for this are corruption and executive control
of the judiciary. As a result, Cambodians are not in practice entitled
to be tried by an independent, competent and impartial tribunal
established by law under Art.14-1 of the International Covenant on
Civil and Political Rights, to which Cambodia is a State party.

Over this relatively long period of time, tens of thousands of people
have been tried by judges whose status have not been defined by the
required law and by courts of law whose establishment has never been
based on a law on the organization of the judiciary, although both of
these laws that have been specifically stipulated in the Constitution
of 1993.

The Cambodian government has delayed, the enactment of these two
important laws for what will be 16 years this coming September 24th; a
delay that should by itself amount to an unconstitutional omission on
the government’s part, although the country’s Constitution is silent
on this omission. The delay in the enactment of these two laws stands
in stark contrast to the law on the statute of civil servants and the
law of members of the armed forces, both of which were enacted more
than ten years ago, in the mid-1990s.

The government has preferred to continue to apply the old law on the
nomination of judges and the activities of courts, enacted in the
communist days on the eve of the country’s pluralistic liberal
democracy. This particular law no longer befits the new system of
government that abandoned communism and embraced liberal democracy, in
order, purportedly, to be governed by the rule of law. This new system
adopts the principles of separation of powers, the independence of the
judiciary and the jurisdiction of the Supreme Council of the
Magistracy as an independent body belonging to the judiciary, and as
the supreme judicial body of the judiciary, whose jurisdiction is the
nomination and discipline of judges and prosecutors. Furthermore, this
particular pre-liberal democracy law is not among laws and regulations
that should continue to apply under the transitional provisions of the
country’s constitution (Art.158 of the Constitution).

The Constitution’s transitional provision only recognizes the validity
of past laws and standard documents pertaining to state properties and
the rights and freedoms pertaining to lawfully acquired properties in
the past. Art 158 on this transitional provision says: “Laws and
standard documents in Cambodia that safeguard State properties,
rights, freedom and legal private properties and in conformity with
the national interests, shall continue to be effective until altered
or abrogated by new texts, except those provisions that are contrary
to the spirit of this Constitution.”

The absence of the law on the statute of judges and prosecutors
ensures that there are no guarantees concerning the independence of
individual judges and prosecutors. The Supreme Council of the
Magistracy belongs to the independent judiciary and is chaired by the
king. It nominates and disciplines judges and prosecutors, both of
which belong to this Council. This Council assists the king in
ensuring the independence of the judiciary.

Due to the absence of this law, no age of retirement of judges and
prosecutors has been fixed and there have been charges of favouritism
levelled about older judges or prosecutors (including four of them
recently), who have wished to remain in active service. Furthermore,
there have been cases of infringement by the Ministry of Justice and
even the government itself on the jurisdiction of the Supreme Council
of the Magistracy. The Ministry of Justice controls the Secretariat of
the Council, and has made nomination proposals and got the Council to
approve them and submitted them to the king for signature, without the
Council having much say at all in the process.

A couple of recent examples have illustrated the government’s
infringement upon the jurisdiction and independence of the Supreme
Council of the Magistracy. On June 21, 2009, the government ignored
the Supreme Council of the Magistracy altogether when it retired and
replaced four out of eight (two-ex officio and two (of three)
appointed) members of the Council and submitted the whole proposals
for the king for signature. More recently, on August 4, the Minister
of Justice proposed the appointments of over 32 judges and prosecutors
(including four over the de facto age of retirement of 60), and had
the Council approve them and submitted these to the king for
signature.

This practice is very much indicative of the executive’s control over
the judiciary. It is unconstitutional, but there is no procedure for
constitutional review of acts of government by the country’s
Constitutional Council in the same way as the constitutional review of
laws operates. This loophole should be removed, lest Cambodia
continues to be ruled by decree instead of the rule of law, and the
government continues to exercise control over the judiciary.

The prolonged absence of the law on the statute of judges and
prosecutors poses a problem concerning the legitimacy of the Supreme
Council of the Magistracy as well as of the Constitutional Council
itself. Due to necessity during its formative years beginning in 1994,
and the then-inability to enact the law on the statute of judges and
prosecutors in time, an interim arrangement was made to appoint three
judges as members of the Supreme Council of the Magistracy, pending
the enactment of that law through which they would be elected by their
peers. Since 1994, the law in question has not been passed despite the
government’s repeated promises to do so. The election of these three
judges has been upheld and they have continued to be appointed. As
time passes by the legitimacy of the composition of the Council is
becoming increasingly questionable.

The dubious legitimacy of the composition of the Supreme Council of
the Magistracy in turn puts into question the legitimacy of the
composition of the country’s Constitutional Council, whose
jurisdiction is to ensure the constitutionality and interpretation of
all laws and to serve as the court of final appeal for election
conflicts. Three of the nine members of the Constitutional Council are
appointed by the Supreme Council of the Magistracy whose composition
lacks legitimacy. When the legitimacy of latter’s composition is also
dubious, it is very doubtful whether the Constitutional Council’s
authority has its full weight.

With the absence of the law on the statute of judges and prosecutors,
and also of the law on the organization of the judiciary, both of
which have been specifically stipulated in the country’s constitution,
the whole of Cambodia’s justice system do not have any legal
foundation and framework.

Recommendations

There is still a long way to go before anyone in Cambodia can be
guaranteed being tried by an independent, competent and impartial
court established by law. However, it should not take very long to
enact a law on the statute of judges and prosecutors and another law
on the organization of the judiciary, in order to ensure that a trial
court is at least established under the law and that judicial officers
in charge of investigations and trials have proper legal status as
judges or prosecutors. The Cambodian judiciary can no longer function
as a judiciary without a proper legal foundation and framework.

The Asian Legal Resource Centre (ALRC) therefore recommends that the
Special Rapporteur on the situation of human rights in Cambodia and
the members of the Human Rights Council pay special attention to the
need for an effective, independent judiciary with a proper,
constitutionally legal foundation and framework. Without this, all
discussions about and work on human rights in Cambodia is unrealistic
and unlikely to lead to successes.

The ALRC recommends that the government of Cambodia enact the two laws
on the statute of judges and prosecutors and on the organization of
the judiciary, if it has any pretence of being serious about the
protection and promotion of human rights and democracy in the country.
This would greatly improve the conditions of nominations of judges and
prosecutors, their independence, the prohibition on their political
affiliation, the prohibition on their removal without their consent,
their competence and impartiality, salaries, promotion, discipline and
removal from judicial services under grave circumstances, and the age
of retirement.

With these two laws, the judiciary would become one of the three
branches of government with an equal footing with the legislature and
the executive and could ensure a system of checks and balances
befitting a pluralistic liberal democracy, which Cambodia is under its
Constitution. The two branches of government should respect the
principle of separation of powers and also the independence of the
judiciary as enshrined in Articles 51 and 128 of the Constitution. # #
#

About the ALRC: The Asian Legal Resource Centre is an independent
regional non-governmental organisation holding general consultative
status with the Economic and Social Council of the United Nations. It
is the sister organisation of the Asian Human Rights Commission. The
Hong Kong-based group seeks to strengthen and encourage positive
action on legal and human rights issues at the local and national
levels throughout Asia.

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