In late September, scores of donors and government officials sat in a room and signed off on a development goal. Within two years, the government promised, drafts of three far-reaching laws aimed at reforming the judiciary and codifying its independence would be adopted by the Council of Ministers.
It was an ambitious aim; the only problem is, it’s at least the 18th time in seven years that such a promise has been made.
Even by the oft-slow standard of legislative development in Cambodia, the lack of movement on these laws has been staggering. Referred to by insiders as the “three fundamental laws”, they have been in the works since 2005, part of a reform strategy dating back to 2002, and something many assumed would be forthcoming shortly after the Paris Peace Accords were signed in 1991.
While it took 15 years, even the highly complex and politically sensitive Anti-Corruption Law was eventually drafted, disseminated and passed.
The three fundamental laws, which focused on codifying the court's jurisdiction, laying out guidelines for the duties and discipline of judges and prosecutors, and clarifying the role of the Supreme Council of Magistracy, however, have languished.
And as they have languished, note legal experts and political analysts, cases redolent of political pressure from on high have been allowed to mount.
Pointing to the stalled case of former Bavet city Governor Chhouk Bandith – fingered by eyewitnesses for the February shooting of three garment workers during a protest – as proof positive of a court system whose hands are tied when dealing with the well-connected, Amnesty International researcher Rupert Abbott said there was no doubt the court bends to pressure. Bouncing back and forth between prosecutor and investigating judge with no apparent forward motion, the Bandith case has become a poster child for the judiciary’s apparent inability to act against the powerful.
“The obvious [comparative] example is the 13 women from the lake . . . [whose] case was . . tried in three days. The court can be incredibly proactive, if we compare it to the Bavet shooting,” Abbott pointed out.
“Even if we buy the allegations against the Boeung Kak 13, the crimes alleged in the Bavet shooting – attempted murder – is a far more serious charge. Those cases, how they contrast, are a really good example of the lack of independence.”
But as court cases that appear to show more than a modicum of political pressure mount, legal experts are renewing calls for passage of the legislation.
Most recently, UN special envoy Surya Subedi told the Post on Tuesday that he considered the absence of that legislation one of the biggest obstacles to development.
“I want to explore what the difficulties are, why progress has been slow,” he said.
For those familiar with the laws, however, there is little question why.
“There is so little information about the status and way forward. There has been almost no consultation and very little has been shared. We don’t know how many changes have been made; we don’t know what changes have been made. And so we start to question the political will,” Michael Engquist, human rights and good governance adviser at the Danish International Development Agency (Danida) said.
For more than two years, Engquist has served as the lead donor partner on the technical working group – a body comprising donors and government officials tasked with working on the three fundamental laws, as well as any other legal reform goals signed off on in any given year.
Or perhaps trying to work on the laws would be a more accurate representation. Engquist and others with knowledge of the situation confirmed that no new drafts have been disseminated since 2006.
And although working group meetings are held for officials and donors nearly every three months, little occurs.
In a 160-page position paper released by the NGO Forum in September to coincide with the first meeting between donors and the government in 17 months, NGOs were unstinting in their criticism.
“Detailed information and a plan for an Inter-Ministerial Meeting, in relation to the adoption of this law, has not yet been released, which has raised doubts by the civil society concerning the political will of the government in pushing forward its adoption,” they wrote.
The government drafters have defended the pace, saying the highly complex nature of the laws, coupled with insufficient resources, have slowed progress. But, they insisted the legislation is moving forward and brushed aside those doubts of NGOs and donors.
“When the laws [will be] passed, we cannot say, because it involves all the technical staff, all the skilled people . . . We want to pass them, like you, but it depends on the ability of the people, on the discussions of how to pass them. The ministry in charge of the laws has to meet with a lot opeople who are experts [first],” Pen Bunchhea, the government secretariat on the group co-chaired by Engquist, said, adding the laws were “very, very complicated”.
Asked whether criticisms over political will were just, Bunchhea laughed. “No,” he said. “We have to go through the formal committee; we are always committed to this.”
After more than two years, Engquist – whose term ends with the new year when Danida leaves the country – has minimal patience for such claims.
“Of course it’s complicated, but the government has promised to have these laws finalised since 2005. Yes, it’s complicated, but on the other hand, we see what’s happening now with all these high-profile cases, which demonstrates the need for these laws,” he said.
Meanwhile, with just weeks to go before Danida leaves and no other donor country tapped to replace Denmark as co-chair, few are sanguine about the laws’ prospects.
But for those deeply embedded in the country’s legal system, the importance of such laws cannot be overstated.
“These laws are vitally needed,” Yeng Virak, executive director of the Community Legal Education Centre, said.
“They’re very much needed to ensure the check and balance of power. In developed countries, democratic countries, there’s a check and balance of powers in different branches of government.
“If the judiciary is independent of the executive, from the pressures . . . we can feel our rights are really protected.”
Without such laws, the judiciary would be the tool of the powerful, with judges and prosecutors fearing for their careers should they make a politically inexpedient move, Virak said.
In cases where the court has been accused of acting under executive order, that threat has proved a legitimate one.
Most famously, just weeks after Phnom Penh Municipal Court judge Hing Thirith dropped charges against the two men wrongfully convicted of the 2004 murder of unionist Chea Vichea – citing insufficient evidence and a botched investigation – he was fired from his position and transferred to Stung Treng province.
“They should be able to apply the law with professional integrity,” Virak said. “Free from the fear of being removed... The court would have relatively better justice as a result. Right now, it’s only the powerful and rich who benefit from the system.”
With assistance from Bridget Di Certo