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Logo of Phnom Penh Post newspaper Phnom Penh Post - Resurrecting Cambodia's Judicial Tradition

Resurrecting Cambodia's Judicial Tradition

In few countries are the scales of justice so heavily tipped against the accused as

in Cambodia. Lined up against the defendant are the police, the prosecutor and judge

who all work together to secure a confession. The defendant is allowed no legal counsel

except for one relative to vouch for his character. In the end, though, it probably

doesn't matter because the verdict, which is delivered at the conclusion of the trial,

is drawn up by the Justice Ministry before the court proceedings ever get under way.

Defendants unhappy with the verdict do have the right of appeal, but there is no

procedure or court to handle the appeal.

As with almost everything in Cambodia, the sorry state of the judiciary is a result

of the legacy left by the Khmer Rouge's disastrous three and a half year rule. Only

four of the country's 500 judges survived the Pol Pot years and along with the awful

waste of human life and intellectual resources was the loss of an entire legal culture.

Two decades later, the benches remain stacked with political appointees and teachers-the

only group of educated people who survived in any great number.

The Vietnamese imposed the current confessional system, which they had adapted from

the French system when they took control of Cambodia in 1979. The idea of an judiciary

was marginalized by the following 13-year civil war year and strong arm rule of all

four factions' leaders.

As part of its mission to restore peace to Cambodia, the Untied Nations sponsored

a three-week seminar recently to introduce the sitting judges to some of the basic

international standards of law. The seminar, which were run by the International

Jurists Committee, were taught by legal experts from around the globe including the

former chief justices of India and Zimbabwe

Antonio La Vina, a human rights lawyer from the Philippines said the main aim of

the course was to strengthen the Cambodian judiciary and make it "independent

and effective."

"We tried to stress the judge should not be in partnership with the prosecutor

and the police and be independent of the political parties.

"That there is the presumption of innocence , the burden of proof is on the

prosecutor to prove the defendant is guilty. And thirdly we emphasized the right

of the accused to have a defence. There is no defence bar here and the accused is

left alone with all the powers of the state against him," he said.

The visiting judges praised their Cambodian counterparts for their willingness to

learn and recognition that there were international standards of law that the country's

judiciary needed to conform to. Nevertheless, the seminars weren't without vigorous

debate on some points.

"They couldn't understand why judges couldn't be members of political parties,

said Mona Rishmawi, an IJC official.

"Maybe in German it would be okay not in Cambodia were political parties have

totally marginalized the judiciary . That was a position we had to completely destroy,"

she said.

Lawyers also came under fierce attack. They were described as liars, manipulators

of facts and a general hindrance to the running of the court.

Another problem was the dawning realization among the judges of the huge responsibility

that bore in the new Cambodia, were no-one would be there to tell them how to rule.

"The judges were very self critical . Repeatedly the judges told us 'we are

not competent' we need training," Reshwe said.

"One of them told us, 'You know in other countries, it takes seven years to

train a judge and we have no training. Their is enormous humility on their side and

they realize it is a very important moment in the history of Cambodia," she

said.

La Vina played down the importance of legal training and said the judges most important

task in the next few years would be to safeguard human and political rights.

"At a certain point the problem will form because with technical things like

property rights a level of legal training is necessary but basic things like human

rights, like criminal cases, I don't think it is essential," he said.

"In my country you have judges who have had the finest educations, they go to

Harvard or Yale and yet they can still be assholes when it comes to human rights."

The constitution being drafted by the newly-elected national assembly will set the

basic framework for Cambodia's new legal system but the IJC experts said the most

important thing now is for the judges to understand their role as an independent

body.

"Law is implemented by human beings," said Basil Fernando, a senior official

with UNTAC's Human Rights component who helped organize the seminar.

"[The new constitution] can be the most beautiful piece of paper in the world

but it is still just a piece of paper unless people understand it and it is our role

to make them appreciate that," he said

The sponsors of the seminar stressed that it was only a beginning point in a long

road to reconstruct Cambodia's judiciary.

UNTAC and Cambodian officials have discussed the possibility of bringing foreign

judges in to act as advisors in court or even to preside over important cases. But

the problem for Cambodia is greater than a lack of qualified judges.

Cambodia has no legal tradition and no real judicial hierarchy. The current supreme

court does not function as a court of review but rather as an advisory court. This

again is a result of the terrible shortage of qualified judges which has led to high

court judges working with the lower courts and there have even been cases where the

supreme court has been used as a file court in property disputes.

There is also no proper penal code, no criminal procedure court and no civil procedure

court.

Reshwe said Cambodia's attempts to rebuild its judiciary were unique because unlike

post colonial countries which had been left with a legal legacy and system, Cambodia's

had been completely destroyed.

"Here you have a country that had a judicial system but you can't trace it because

the people who held any kind of position were all killed. Everything was destroyed

including the legal culture," she said.

"What they know is that there is something they missed , they know they had

something they remember it. The will is there and for that I am confident."

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