P olitics is playing an ever increasing role in a justice system that was supposed
to be independent. But that is only the beginning of the trouble... Matthew Grainger
MILLIONS of dollars are being poured into reforming Cambodia's justice system that
many foreigners believe is so riddled with problems it is beyond short-term repair.
Decisions and policies are routinely made that contravene laws and the Constitution.
Analysts agree that the judiciary is the cornerstone to the CPP's seemingly successful
agenda of retaining and entrenching its control of the country.
Justice Minister Chem Sgnuon, a senior CPP figure, writes regular circulars interpreting
laws to chief judges, and it is Sgnuon who hires and fires judges and prosecutors
- something only independent bodies described in the Constitution are allowed to
Sgnuon's latest memo dated Sept 13 to provincial chief judges is a case in point.
He ruled as from that date prisoners' parole will be decided by a "specialized
department" within his ministry "which is in charge of this matter".
The law, however, says that the court that convicted the prisoner should decide.
"There are heaps of examples much worse than this," moaned one Western
A Supreme Council of Magistracy, born from the Constitution, was to have helped the
King ensure that the courts were independent, and to oversee the discipline of judges
However that institution - which is also entitled to nominate three members to the
Constitutional Council - remains in Sgnuon's control. A law was recently passed establishing
the Supreme Council, but it has yet to function.
Judges depend on Sgnuon to give them answers to questions of law, which constitutionally
should be the job of the "independent" Supreme Council. The Constitution
also forbids government officials from holding more than one position.
Put simply by one Western legal advisor: "There was a big fight, and Sgnuon
Not only were most court officials killed during the Khmer Rouge regime, but the
subsequent restructuring of laws and an under-trained judiciary under various governments
has left Cambodia with a mess of often incomplete and conflicting laws.
The final decision on whether laws are constitutional lies with the independent Constitutional
Council, but that body has yet to be set up after two years.
Though there are laudable exceptions, provincial governors - who used to control
the running of their courts under the State of Cambodia rule - have largely retained
their positions and possibly, Western analysts say, some degree of judicial control.
Many of those governors, for instance, still have a say on how local courts spend
Another issue is that the local populace don't respect the courts, analysts say.
"Some parts of the county we have something approaching 'law', but others are
almost totally lawless," said one trainer. "People would not even consider
resolving a dispute in court," he said.
Nor do people know their lawful rights, such as the right to remain silent, or to
have a defender.
Judges say they need legal training, from how to begin a criminal investigation,
to ethics, to how to increase independence from political pressures.
Prosecutors say they want to know how to run an investigation from start to finish,
and complain they need basic equipment to analyze physical evidence.
Court trainers talk of trials being corrupted by politics or money, saying that civil
servants - most importantly judges - are poorly paid. There are anecdotes of judges
and prosecutors tilling their rice plots in the early morning before coming to work
in the court; others riding cyclos on the weekend.
The lack of a standard arraignment process meant that accused are being detained
for periods longer than those legally allowed. This also promotes corruption, law
analysts say, with those who can afford to pay getting swift trials.
Trials are notable for both the lack of physical evidence and testimonies from witnesses.
There was also a high incidence of uncorroberated confessions being the basis for
conviction, they say.
Judges and prosecutors often work in collaboration during trials, lawyers say, again
something forbidden under the Constitution.
The physical limitations of courts and prisons also worry lawyers and human rights
advocates, who cite problems with power, repairs, paperwork, communication - right
down to sanitation.
French lawyers work as advisors in Sgnuon's ministry, trained in the same civil code
on which the Cambodian system is based. The money being poured into law training
by USAID - to the Court Training Program, the Cambodia Defenders Project, CADEDAS,
ADHOC, LICADHO and Vigilance
- is predominately going to American lawyers trained in common law, or Khmer trainees
still learning the law. In addition, there are judicial training projects being done
by UNCHR and the Task Force on Human Rights.
Most Western judicial trainers stress they are striving to avoid duplication of projects
and subsequent confusion among the Khmers they are trying to teach.
"How would you want us to work?" said one. "Every little thing we
do helps." "The money is not going down the tubes," said another.
Others disagree: "USAID is wasting its money. There is no willingness on the
part of the Ministry of Justice to have an independent judiciary."
"The shots are being called by CPP. USAID would be better off spending money
only to train judicial police and in court administration," one said.
"If USAID and other donors are serious about change, they should set preconditions,
like the World Bank does before it lends money. At the moment donors are begging
the Ministry to be allowed to carry on with their projects - it should be the other
Judicial bodies "just have a long laundry list waiting for us," said one
trainer. "Computers, cars, what buildings they want us to build... they see
these programs as Santa Claus coming into town," he said.
However, judges - and Sgnuon - are very keen that Cambodian institutions improve
judicial techniques with training, most lawyers say.
That is proved by Sgnuon allowing Western trainers free access within Cambodian courts
- a concession that lends itself to political risks - though it also reflects his
confidence of his own position as "the boss", they say.
"Every month Sgnuon meets his senior judges, just like [Interior Co-Minister]
Sar Kheng meets with his police commanders and provincial chiefs," said one
lawyer. "[Sgnuon] clarifies laws and technical matters, but in doing so the
judges sure know who is the boss... and it's certainly not Funcinpec," he said.
"Yes, it's pretty gloomy," said another source. "But that's a fair
indication of the system as it is."
Civil servants needed to be paid enough to respect the law, said one trainer. "It's
not alone sufficient [to solve all the problems], but it's a prerequisite."
"If judges, policemen, soldiers and government clerks don't get enough money
to feed their families, how can they possibly administer justice or government functions
in a fair and even-handed manner?
He said with all the foreign aid flowing into the country "how much is going
in to ensure a transparent, well-funded civil service?" He said it would not
cost so much money to ensure that judges were paid enough "so that if they chose
to be fair, they could".
"There are times when a judge really wants to know something," said another
trainer. "The question is when our objective advise conflicts with the political
instructions from the Ministry of Justice, what wins out? But if our advise is not
there to begin with, it's very clear where the answer will come from."
Sources say that the procedural changes being advocated by, among others, the Court
Training Project, would not remove corruption entirely.
However, better procedures would mean "fewer places where the system can bend,"
Training projects had to be long term "and [must] recognize that they start
not only without 'Rule of Law', but also a lack of technical competence and experience
which is consistent with everything else in Cambodia, doctors, engineers, teachers...,"
"I would never justify either human rights violations, or the incursion of the
Ministry of Justice into the judicial process, or the rich and powerful being able
to abuse the system... these things ought to be eliminated yesterday, but there is
progress in other areas," said one lawyer.
"If I didn't believe we could make things work eventually, I wouldn't be here,"