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.
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."
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
"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?"
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
"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."
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.
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
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.
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.
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.
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."