Following Minister of Justice Chem Snguon's interview in the last Phnom Penh Post,
Basil Fernando and Terrance Wickremasinghe argue that Cambodia's "courts"
- by a liberal democracy's definition, at least - can be called no such thing.
Minister of Justice Chem Snguon must be credited for making a very clear statement
on the nature of Cambodia's trial system in his interview with the Phnom Penh Post
(7-20 Nov), in which he said the following words:
"The judge prepares his decision before the trial opens. Before the case opens,
he already has a model. During the trials, issues may be brought up that modify the
judge's decision. If the responses to questioning or testimony are slightly different
than expected, the judge will modify the decision for 10 to 15 minutes at the end
of the trial. If the events during the trial are very different, he must suspend
the trial until a later date. At that time, he will look at additional evidence and
write a decision. Judges always make a map of their decision after looking at the
This is exactly the socialist (Stalinist) concept of trial. Anyone who wants to understand
why the Cambodian 'courts' function the way they do ought to try to understand the
theory of trial applied in these courts. In a liberal democracy, the theory applied
is the very opposite to the one expressed by the Minister of Justice.
Chem Snguon's view used to be expressed in China as "finding Truth from facts".
In the 1930s, it was expressed by socialist lawyers such as Anderi Vyshinsky, Stalin's
famous prosecutor, who is best known for the Moscow trials in which Stalin's rivals
including some of the prominent leaders of the Bolshevik revolution faced the type
of trial represented in the Minister's statement.
In such "trials", the outcome was predetermined before the trial. In the
1980s when Vietnamese experts introduced the current system of courts to Cambodia,
they acted on the basis of their experience and training, which was naturally based
on the socialist law. It is quite well known that Vietnamese experts were trained
in Eastern Europe.
Even in the West, before the liberal democratic notion of a "fair trial"
was developed, there was this model of trial, expressed in the slogan 'First the
sentence, then the trial'.
What is missing in the trial model mentioned by Chem Snguon is the concept of evidence.
In a liberal democracy, the role of the judge arises from the notion of evidence.
To put it generally, this means rules relating to what is admissible as evidence,
how such evidence is to be presented in court, how such evidence can be challenged
by the accused (or by those who represent them - lawyers), how judges decide on the
veracity or otherwise of the evidence presented before him, how judges record the
process of reasoning by which they arrived at the judgment (on the facts and the
law) and similar matters. All these are involved in deciding the guilt or otherwise
of the accused.
When "the judge prepares his decision before the trial opens", the implication
is that the fundamental issue of guilt or innocence is already decided, and what
could slightly change is the actual punishment.
There are three important conclusions flowing from the very honest exposure of
the system made by the Minister of Justice. One is that all trials that have taken
place in Cambodia since the making of the new Constitution (September 1993) and ones
that will take place till this model of trial is changed are mistrials per se. Secondly,
this trial system violates the Cambodian Constitution, as it guarantees a fair trial
to all accused persons. Thirdly, so long as this model continues to be used, Cambodia's
'courts' cannot be termed as courts in the way the word is used in common parlance.
The court structure and hierarchy pre-valent in Cambodia up to the present were created
by the State of Cambodia (SOC) administration in the 1980s and continued up to May
1993. No new court structure was created after the United Nations-supervised elections,
though it was presumed that the 1993 elections would be a watershed in Cambodian
history in introducing democracy to Cambodia. There was no such watershed as far
as the courts were concerned.
One has to emphasize this fact of continuity of the court structure of the old order
as well as its working mechanism in order to understand the nature of the judiciary
that exists at present. Emphasis on this aspect of continuity is significant in view
of the fact that during the period in which the present court structure was formulated
and its judges were appointed (1980-1993), the concepts of the supremacy of Parliament,
the separation of powers and the independence of the judiciary were unknown in Cambodia,
The significant feature of the courts' structure and hierarchy prior to the arrival
of the United Nations Transitional Authority for Cambodia (UNTAC) was that the structure
of courts formed an organic part of the executive branch of the government; the courts
functioned as an arm of the executive, in which the military played a dominant role.
It has to be noted that in spite of the recognition of the theory of separation of
powers and the independence of the judiciary by the Cambodian Constitution and UNTAC
Transitional Provisions on Criminal Procedure (September 1992) the pre-UNTAC court
structure still continues without any change.
Therefore, at present, courts in Cambodia are not independent from the executive,
which remains dominated by the military. As it stands, Cambodia lacks an independent
judiciary. It is quite appropriate to conclude that in Cambodia there are no courts
and judges as understood in the legal systems in liberal democracies. The issue,
therefore, is not one of a weakened judiciary but one of an absence of a judiciary.
This is quite apparent when one observes how courts function and the extent to which
the methods and practices of judges in dealing with the procedural rules set out
in the UNTAC and SOC laws on criminal procedure are carelessly observed. Deviations
and violations in regard to the provisions of criminal procedure are glaringly visible.
The judges are, as the Minister of Justice confirms, in the habit of writing their
judgments even before the cases are heard. Judges exercise their discretion, not
judicially, but arbitrarily, acting on prejudices, preset opinions, extraneous facts
and circumstances not established through evidence heard in court. This is more evident
in cases where a political element is present and where parties involved in the trial
have political affiliations. What makes the process of adjudication even more arbitrary
is the fact that judges treat the general principles of the law of evidence as alien
and are not sensitive to practices of a free and fair trial. Instead, in judging
cases, they adhere to the executive methodologies as strategies to which they are
To make the situation worse, the militarization of the party controlling the fractured
decentralized state machinery has become highly excessive. In this context, in the
provinces, the jurisdiction of "courts" is delegated to other people and
bodies, and very often legal proceedings of offenses connected with drug trafficking
and murder are not even instituted in the "courts."
It is more appropriate to describe Cambodian "judges" as investigators,
arbitrators or administrative officers, rather than judges. The judicial role and
function is as yet an alien concept in Cambodia and under the present circumstances
is likely to remain so for a considerable time. All attempts to re-educate the judges
are of little use while they function as a part of the executive and are so physically
close to the military. Thus, re-education attempts are intrinsically flawed and artificial.
It is illogical and foolishly optimistic to expect an independent judiciary in this
context, especially in a country where civil society is still in its formative stages
and lacks democratic institutions, such as a multi-party system and a vibrant legislative
assembly where public opinion is vigorously reflected.
The problem with the few years of legal reforms in Cambodia since 1993 is that while
the basic communist model of trials and courts has been kept intact, a lot of liberal
democratic jargon has been introduced. There is such talk as presumption of innocence
and proof beyond reasonable doubt, the right of the accused to remain silent and
the like. However, the trial model operates on the basis explained by Chem Snguon,
where the judge prepares the decision before the trial opens.
This is the case of appeals too. In the interview, the Minister of Justice speaks
several times about the right to appeal to the Appeals Court and the Supreme Court.
In fact the Supreme Court of Cambodia does not have any of the functions that a similar
court has in a liberal democracy. Even before 1993 its power was limited to the reading
of case records after trials. The only action it could take after reading a case
record was to request a court to hear a case again. In reality the purpose of reading
the judgment of the courts was to ensure that the courts function in a politically
correct manner, rather than to ensure an appeal process for parties who may want
to show that the original court has arrived at a wrong judgment. Even since 1993
the Supreme Court has not exercised an appellate function.
In any country, and particularly one trying to become a democracy, a strong Supreme
Court with appellate and revisionary and supervisory jurisdiction over the lower
courts is indispensable for a vibrant and independent judiciary to come into existence.
The Supreme Court that exists in Cambodia today is a product of the old order and,
therefore, has inherited all of the characteristic weaknesses and deficiencies of
the past. Theoretically and practically the Supreme Court was part of the executive
branch, and the control and grip that the executive exercises over the Supreme Court
continues to be strong.
The Appeals Court is the new addition to the court system made since 1993. However,
the powers and functioning of this court has been curved within the overall framework
of a communist court system. The manner of functioning is the same: the judge prepares
the decision before the appeal opens. At times, what happens is to try to get the
parties to arrive at some compromise. But the compromise has to be arrived at according
to the parameters set out from outside, which may vary according to the political
significance of the case or the parties in the case.
The failure to enact a Judicature Act with the promulgation of the 1993 Constitution
- to abolish the existing court system and set up a new court hierarchy, with new
judges - was a contributing factor which prevented and hampered the establishment
of a judiciary with the potential to grow into an independent judiciary, even in
a hostile atmosphere.
What is required is a fundamental change to the system of arriving at judgments before
trials or appeals. In the context of Cambodia, this requires a colossal change from
the political-legal culture of the communist era to a liberal democratic legal culture.
To lead such a change, the leaders who initiate the change need to be familiar with
the principles and practices of such a legal system. If the leaders themselves are
sunk neck-deep in the old system, how could they be the initiators and inspirers
The statements of the Minister of Justice on the Bar Association also reflect old
attitudes. The independence of the legal profession is very much a part of making
a proper trial system possible. If judges make judgments before trial, lawyers have
no real role. Recent attempts to control the Bar Association are a step backward,
and it even takes away the hope of possibility of changes in the future. The function
of a Bar Association is to protect the profession from the state and to maintain
professional standards by mechanisms controlled by the association on its own initiatives.
A Ministry of Justice has no function in this matter. However, under the old system
of communist party control of all professional bodies, the independence of professions
was only a political slogan devoid of any reality. This seems to be what is happening
now, after an initial period when defenders and others engaged in legal aid and training
brought a breath of fresh air and created some hope of change. New restrictions on
funds to maintain these initiatives is a clear signal that the old system wants to
close the door and return to its old tricks.
Ultimately, all attempts taken by ambitious judicial training programs to establish
an independent judiciary with independent judges have been frustrated because of
a lack of any real judges in the first place. The court system, with its "judges"
who are alien to the notions of a free and fair trial and to the general principles
of the law of evidence (and other laws), has continued to function within the same
framework dictated by an unfettered executive.
Consequently, the first step towards democracy in Cambodia must be a fundamental
rupture with the court system that originated in the 1980s and that has continued
up to the present date. The strong local lobby that has sprung up in Cambodia demanding
an independent judiciary, as well as international experts and agencies, would do
well to concentrate their efforts on this single issue without being diverted into
futile ventures, such as election monitoring, judges' training and the like, which
will only be frustrated by the current state of the judiciary. All human rights monitoring
up to now has not borne much fruit due to the lack of a credible judiciary to try
- Basil Fernando, a Sri Lankan attorney, was a Senior Human Rights
Officer with the Human Rights Component of UNTAC, and later the first Officer in
Charge and the Chief of the Legal Unit of the Cambodia Office of the UN Center for
Human Rights. Terrence Wickremasinghe is a Sri Lankan attorney who worked
till recently as a Legal Consultant to the Judges' Assistance Program conducted by
the UN Center for Human Rights.