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Draft penal code a legal nightmare

Draft penal code a legal nightmare

Legal experts are divided on whether the draft of Cambodia's penal code should be

extensively revised, or scrapped entirely and rewritten from scratch.

Since 1993 Cambodia's judiciary has relied on a confused mixture of old laws and

the UNTAC codes for handling criminal cases. The UNTAC codes were meant to be transitional,

but eight years after their adoption they are still in use.

The draft penal code has been floating around the Ministry of Justice since 1994

and moves are now under way to review the draft and push it through the approval

and enactment process.

But legal experts are concerned that the Ministry of Justice is preparing to rush

the draft through the approval process before it is properly reviewed by Cambodia's

legal and civil society community.

Sok Sam Oeun, Executive Director of the Cambodian Defenders Project, said: "It

is time to make sure Cambodia receives a good law, even if it means slowing the process

down to make sure it is written clearly and consistently. "Otherwise we will

have rule of bad law, not rule of law," said Sam Oeun.

Most legal experts interviewed by the Post agree on the Draft Penal Code's major

flaws: it tramples over rights guaranteed under the constitution; it mixes civil

with criminal law; it is disorganized and poorly worded, and it is open to misinterpretation

because terms are not clearly defined.

Sam Oeun said NGO working groups are being organized to review and make constructive

suggestions to the drafters of the law - but so far there has been no formal request

from the Ministry of Justice for input from civil society and outside legal experts.

"If the Government is open to comment, perhaps all the articles could be improved,"

said Sam Oeun.

Ang Eng Thong, President of the Cambodia Bar Association and a member of the Ministry

of Justice penal code drafting committee, said the law was still being reviewed by

the committee, and he believes that in the end a good law will result.

Eng Thong said the penal code was written by Mao Path, a former advisor to the Ministry

of Justice, in 1993-94. Eng Thong said about two thirds of the draft was lifted directly

from Cambodia's 1969 penal code because it was "easy to understand".

The drafting committee has so far reviewed some 200 of the draft's 540 articles.

Eng Thong expects the committee to finalize the draft some time this year.

When the committee wraps up its review, Eng Thong said a workshop would be held to

receive advice from outside legal experts and civil society organizations.

Getting advice from people outside the committee now would just slow down the review

process, he said.

Complicating the review process was the arrival of an 818-article draft penal code

for Cambodia that was presented in September last year. This draft was the work of

Philippe Castel, a French lawyer at the Paris Appeals Court.

Because of its length, Eng Thong said reviewing this new draft would be a long, difficult

task, but he thought elements of it could be combined with Path's work.

Eng Thong said the mixing of civil law and criminal law in the draft penal code was

no accident - the drafters want to apply criminal punishment to people seen as "cheating

others" in certain business arrangements.

He acknowledged some of the terminology contained in the draft penal code was vague,

but the final draft would include a glossary of definitions.

Legal experts warn of attempts in the draft code to moralize, or control sexual conduct,

by criminalizing acts that are morally dubious at worse (see Article 440).

They warn that some articles do not treat people equally before the law. Article

436 treats the rape of a married person more seriously than a single person, and

the rape of a virgin more seriously than the rape of a non-virgin.

Eng Thong said these ideas came from Cambodia's 1969 penal code. Raping a married

woman was not just an act of rape, but "was like stealing someone's wife".

"In the Buddhist religion you can't steal someone's wife," he said.

Menh Navy, Advocacy and Networking Manager for Gender and Development for Cambodia

(GAD), said the draft penal code was extremely regressive.

"We suddenly find that in the criminal code abortion will be a crime for both

the women who seek abortion and those who perform them," said Navy (see Article

444).

GAD is concerned about confusion over the definition of the age of consent which

can range between 15 to 18 depending on which draft article is consulted.

Trafficking - a major problem in Cambodia - was not clearly defined in the code,

and the rape and sexual assault laws were in need of serious revision, she said.

Janet King, the University of San Francisco's Director of the Cambodia Law and Democracy

Program, said the drafters of the penal code seemed confused about the difference

between civil and criminal law (see Article 10).

Eleven articles related to tonctines - informal lending associations - but these

were contractual provisions and should not be covered under the criminal code, except

in cases of fraud.

"Contract violations are not a crime and they should not have criminal penalties

[see Articles 516 and 529]," she said.

King said the concept of the presumption of innocence did not appear to be very well

understood by those who drafted the criminal code and she is concerned about the

myriad inconsistencies between articles.

Care must be taken so that the penal code did not conflict with the draft civil code

and other laws still being written.

"The ultimate danger is that if Cambodia gets a law that is not possible to

understand and not possible to follow, then people will ignore it and then it will

become more difficult to establish a respect for the law and a willingness to follow

it," she said.

King believes that the Penal Code draft needs to be re-written. "There's no

way you can salvage this," she said.

One positive aspect of this law drafting effort was there was now a serious attempt

to bring the criminal code into one unified set of laws.

"It's a very positive step and the Justice Ministry should be lauded for doing

this," she said.

King said she would strongly encourage the Justice Ministry's drafting committee

to consult the legal community and civil society groups and proceed with the revision

process slowly.

"It is a very important law - you're talking about people's lives," said

King.

She would also encourage law makers to consult with their constituents. "No

doubt it is a messier, less efficient system, but in the end you come out with a

law that will be more readily accepted, so it is worth the trouble," she said.

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