Amendments to the UN-era penal code that were signed into law January 10 have hamstrung
Cambodian judges and tightened Ministry of Interior (MoI) control over the judiciary,
said Ouk Vandeth, legal vice-director of Legal Aid of Cambodia (LAC).
The amendments to the Law on Aggravating Circumstances were drafted by the powerful
MoI, rather than the ministry that carries the judicial reform portfolio, the Ministry
of Justice. Cambodia's judiciary has long been criticized as weak and lacking independence
from political interference.
Cambodia currently prosecutes crimes under either the 1956 Penal Code or the UNTAC
Penal Code. A new penal code to replace the UNTAC-era legislation has been on the
drawing board at the Ministry of Justice since 1994, but is yet to materialize.
Cambodian Defenders Project director, Sok Sam Oeun, said the latest slew of amendments
would provide an ideal testing ground for the new code.
"Right now I think the government is experimenting because the new penal code
looks like the old penal code," he said. "This will help decide what appears
in the new penal code."
The amendments increase penalties across a range of crimes, extend the right for
police to hold suspects before bringing charges, and withdraw from judges their entitlement
to deliver discretionary sentences.
The effect is already being felt in the judicial system, particularly for those cases
involving minors, said Vandeth of Article 8. That Article states that a judge should
"not consider attenuating the circumstances or reduction of sentence to below
the minimum term or suspension of the sentence".
"It seems that the requirement of that law is injustice," said Vandeth.
"Under UNTAC law [the United Nations Transitional Authority in Cambodia] mental
illness, personal history, self defense and the age of offenders were all factors
that were considered under Article 68."
CDP's Sam Oeun, however was less concerned about the changes, arguing that Cambodian
judges frequently hand out inappropriate sentences for serious crimes.
"I'm not happy with the UNTAC laws because they give the judge the power to
give a low sentence for any crime," he said. "The law needs to be clear:
for a felony the judge should not be going below the minimum sentence."
Sam Oeun said that establishing a parole board and employing probation officers would
be a more effective way of mitigating sentences than leaving it in the hands of judges.
Establishing separate juvenile facilities was the most appropriate way of dealing
with underage offenders, he said.
"We saw that the new articles of the amendment gave more power to the Ministry
of Interior," said Vandeth referring to the controversial Article 36, which
increases civil servants' control over the judiciary.
The amendment gives expanded powers to a wide range of civil servants including granting
commune chiefs, district and provincial governors the "competence to order and
instruct the judicial police officers within the territory of their control to operate
on the offense".
However, said Sam Oeun, in practice the amendments would make little difference.
"I don't think it has changed so much. The good thing is that it makes [the
role of civil servants in the judiciary] more transparent."
Article 90 grants police the right to detain suspects for 72 hours without filing
charges. The increase from 48 hours provoked some dissent during debates in the National
Assembly last November. Funcinpec lawmakers initially voted down the amendment before
reluctantly passing the change November 14.
"This law is against the innocent and against the Constitution," said LAC's
Vandeth. "We do not welcome this law and we are struggling to have it changed."
Critics have charged that the extension of the detention period will increase the
number of human rights abuses of suspects in police custody. Cambodia's police have
frequently been criticized for relying on violence and intimidation to extract confessions
Sam Oeun said CDP did not support the measure, but if procedures were followed properly,
the extension would matter less.
"Right now the police can abuse the procedures in the UNTAC code without any
ramifications. For example the court will still admit evidence that results from
illegal searches," he said.