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Logo of Phnom Penh Post newspaper Phnom Penh Post - Government seen soft on weak judiciary

Government seen soft on weak judiciary

CAMBODIA'S weak judicial system is in desperate need of reform, but analysts say

the Government does not want to institutionalize the rule of law.

Dr Lao

Mong Hay, Executive Director of the Khmer Institute of Democracy, believes that

without an urgent focus on judicial reform it will be impossible to stem the

tide of corruption sweeping across Cambodia.

"How can you combat

corruption if you don't have the institutions to verify and to adjudicate

corruption cases," said Mong Hay.

He said Cambodia needs the rule of law

as well as the institutions that support the rule of law - especially law

enforcement agencies and the judiciary.

Mong Hay said there is much talk

of reform coming from politicians, but he is skeptical about their


"The more our rulers repeat their 'will' and their

'commitment' the less they act committed to the reform process. The more they

talk about decentralization, the more they centralize power."

Mong Hay

believes all the hard work put towards drafting new laws for land, fisheries,

forestry, and other sectors will be wasted unless the courts are able to

adjudicate professionally.

"A lot of foreign advisors take for granted

that if there is a law then it will be enacted, enforced, and accepted - that

lawbreakers will be brought to justice and tried. But in Cambodia this is not

the case," he said.

"How can you expect these laws to be enforced without

a properly functioning law enforcement agency and judiciary?"

Mong Hay

said the key to developing a functioning judiciary is the creation of a strong,

independent public prosecutor's office.

"[The donors] have overlooked the

role and [lack of] power of the public prosecutor's office.

" The office

cannot do anything. No resources, no skills, and there are not many public

prosecutors. We need to tackle these issues as a matter of


"Public prosecutors represent society and ensure that it

functions well.

"If police don't pursue criminal investigations then

prosecutors should order investigations as a matter of course - not to wait for

a directive from high Government officials. If they learn of crimes through

other sources, like the media, then they have a duty to act."

Though the

legislative and executive branches of government have their own rules of

procedure, and laws to determine their function and power, Mong Hay said this is

not the case for the judiciary. "In terms of law, the judiciary is


King Norodom Sihanouk is, by law, the Chairman of the Supreme

Council of the Magistracy, the body which oversees the judiciary - making

appointment proposals, disciplining officials, and assuring the judiciary's


"The King must discharge his responsibility in this

particular area. He cannot just delegate when there's the need to hold a

meeting. He has never attended himself. He has never chaired the council. He has

delegated his power to Chea Sim."

Chea Sim, as the acting Chairman of the

council, is in a role incompatible with his position as President of the Senate.

It is a conflict of the separation of powers between the branches of government

envisaged by the constitution, said Mong Hay.

He believes the King should

get the council to meet regularly and he wants to see disciplinary measures

imposed by the council against corrupt judges and prosecutors.

He said

the greatest challenges in reforming the judiciary will be stemming corruption

and he believes the only way to encourage honesty and independence is by paying

judges and prosecutors a decent salary.

"The prosecutors want to be able

to do a good job, but first we must address the issue of their below-survival


Mong Hay said judicial officials need training to upgrade their

skills and professionalism and he hopes it can be provided by experts from

countries with similar legal systems.

Mong Hay said the Cambodian press

has a responsibility to bring judicial reform to the forefront of public

discourse and he urges reformists, judges and magistrates to join hands with

civil society to ask the King to express his legal and moral authority over

these matters.

But these reforms will be impossible unless the

international community throws its support behind the issue, said Mong Hay,

warning that a real reform movement can expect to meet with opposition


"Our leaders do not want to lose control of the judiciary. They fear

their power base will collapse beneath their feet."

The Government has

maintained a tight control over the courts. A Western diplomat said that a

senior Government minister regularly meets with senior members of the judiciary

to instruct them on how the Government wants certain cases dealt


The clearest example of judicial corruption is the way that

relatives of high ranking Government officials are dealt with by the Police and


Hun Sen's nephews, despite having been caught in flagrente on

several occasions, have yet to be put before the courts.

Other high

profile cases include the murder of actress and classical dancer Piseth Pelica,

whose diary posthumously linked her with Hun Sen, and the acid attack allegedly

by the wife of Svay Sitha on his teenage mistress.

Thun Saray, President

of the human rights organization ADHOC, said without the rule of law none of the

Government's reform programs will succeed, and it is important that the

professionalism of both the court system and the police be


Saray said the Supreme Council of the Magistracy must be

independent of the executive and the legislative branches and therefore Senate

President Chea Sim should not continue as acting Chairman.

Saray said

Cambodian civil society organizations are now trying to work through the

newly-established Working Group on Governance and they want to see rule of law

and transparency to be the focus of its efforts.

"I think we need to have

the political will to push forward these reforms. We need to get everyone

talking about this. Judicial reform is a priority of our nation's

reconstruction," said Saray.

He said people still believe the state has a

role in providing justice, but unless reforms are made soon, angry citizens

being denied justice might no longer respect the state.

"Peace can only

be sustained if justice is respected. We don't need perfect justice, but at

least acceptable justice. If not, people will begin killing each other, using

their own way to find justice," said Saray.

The President of the

Cambodian Bar Association, Ang Eng Thong, said the Government has made some

halting steps towards judicial reform, but he feels its commitment is lacking.

Eng Thong believes many judges have neither the skills nor the ethics to

perform their jobs.

"The court officials don't have the ability to deal

with the important new laws - they are not clear on even the basics of law. I am

also concerned that many judges are involved in bribery."

Eng Thong also

believes Chea Sim's appointment as Chairman of the Supreme Council of Magistracy

creates a conflict of interest and he expressed his reservations to the King

earlier this year.

"The King agreed with me, but he said it is hard to

find any other mature person for the position," said Eng Thong.

On April

22 a seven-member Judicial Reform Council (JRC), headed by the President of the

Supreme Court, was created by Royal Decree.

But legal experts warn that

because the function of the JRC is determined by the Council of Ministers -

which in effect puts the JRC under the control of the Prime Minister - it is

unconstitutional and contradicts the principals of the separation of powers and

the independence of the judiciary.

Chea Vannath, the President for the

Center for Social Development, does not believe that even a reformed judiciary

could possibly work in an environment where everything else is corrupt. "How can

you have a clean house in a very dirty neighborhood.

"The judiciary is

just one pillar of the national institutions. Without reforms across the board,

judicial reform will not work," said Vannath.

But Vannath agrees that new

laws, no matter how good they are, will be useless unless the judiciary is


"Right now there is too much politics. Politicians think

about their own power - how they will stay longer in power, how will they keep

things under control. Instead of regulating, our Government is now controlling

everything," said Vannath.

She believes there has been an awakening of

the Cambodia people and of the judiciary itself. "Now at least people are aware

that there is another way to think."



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