In few countries are the scales of justice so heavily tipped against the accused as
in Cambodia. Lined up against the defendant are the police, the prosecutor and judge
who all work together to secure a confession. The defendant is allowed no legal counsel
except for one relative to vouch for his character. In the end, though, it probably
doesn't matter because the verdict, which is delivered at the conclusion of the trial,
is drawn up by the Justice Ministry before the court proceedings ever get under way.
Defendants unhappy with the verdict do have the right of appeal, but there is no
procedure or court to handle the appeal.
As with almost everything in Cambodia, the sorry state of the judiciary is a result
of the legacy left by the Khmer Rouge's disastrous three and a half year rule. Only
four of the country's 500 judges survived the Pol Pot years and along with the awful
waste of human life and intellectual resources was the loss of an entire legal culture.
Two decades later, the benches remain stacked with political appointees and teachers-the
only group of educated people who survived in any great number.
The Vietnamese imposed the current confessional system, which they had adapted from
the French system when they took control of Cambodia in 1979. The idea of an judiciary
was marginalized by the following 13-year civil war year and strong arm rule of all
four factions' leaders.
As part of its mission to restore peace to Cambodia, the Untied Nations sponsored
a three-week seminar recently to introduce the sitting judges to some of the basic
international standards of law. The seminar, which were run by the International
Jurists Committee, were taught by legal experts from around the globe including the
former chief justices of India and Zimbabwe
Antonio La Vina, a human rights lawyer from the Philippines said the main aim of
the course was to strengthen the Cambodian judiciary and make it "independent
"We tried to stress the judge should not be in partnership with the prosecutor
and the police and be independent of the political parties.
"That there is the presumption of innocence , the burden of proof is on the
prosecutor to prove the defendant is guilty. And thirdly we emphasized the right
of the accused to have a defence. There is no defence bar here and the accused is
left alone with all the powers of the state against him," he said.
The visiting judges praised their Cambodian counterparts for their willingness to
learn and recognition that there were international standards of law that the country's
judiciary needed to conform to. Nevertheless, the seminars weren't without vigorous
debate on some points.
"They couldn't understand why judges couldn't be members of political parties,
said Mona Rishmawi, an IJC official.
"Maybe in German it would be okay not in Cambodia were political parties have
totally marginalized the judiciary . That was a position we had to completely destroy,"
Lawyers also came under fierce attack. They were described as liars, manipulators
of facts and a general hindrance to the running of the court.
Another problem was the dawning realization among the judges of the huge responsibility
that bore in the new Cambodia, were no-one would be there to tell them how to rule.
"The judges were very self critical . Repeatedly the judges told us 'we are
not competent' we need training," Reshwe said.
"One of them told us, 'You know in other countries, it takes seven years to
train a judge and we have no training. Their is enormous humility on their side and
they realize it is a very important moment in the history of Cambodia," she
La Vina played down the importance of legal training and said the judges most important
task in the next few years would be to safeguard human and political rights.
"At a certain point the problem will form because with technical things like
property rights a level of legal training is necessary but basic things like human
rights, like criminal cases, I don't think it is essential," he said.
"In my country you have judges who have had the finest educations, they go to
Harvard or Yale and yet they can still be assholes when it comes to human rights."
The constitution being drafted by the newly-elected national assembly will set the
basic framework for Cambodia's new legal system but the IJC experts said the most
important thing now is for the judges to understand their role as an independent
"Law is implemented by human beings," said Basil Fernando, a senior official
with UNTAC's Human Rights component who helped organize the seminar.
"[The new constitution] can be the most beautiful piece of paper in the world
but it is still just a piece of paper unless people understand it and it is our role
to make them appreciate that," he said
The sponsors of the seminar stressed that it was only a beginning point in a long
road to reconstruct Cambodia's judiciary.
UNTAC and Cambodian officials have discussed the possibility of bringing foreign
judges in to act as advisors in court or even to preside over important cases. But
the problem for Cambodia is greater than a lack of qualified judges.
Cambodia has no legal tradition and no real judicial hierarchy. The current supreme
court does not function as a court of review but rather as an advisory court. This
again is a result of the terrible shortage of qualified judges which has led to high
court judges working with the lower courts and there have even been cases where the
supreme court has been used as a file court in property disputes.
There is also no proper penal code, no criminal procedure court and no civil procedure
Reshwe said Cambodia's attempts to rebuild its judiciary were unique because unlike
post colonial countries which had been left with a legal legacy and system, Cambodia's
had been completely destroyed.
"Here you have a country that had a judicial system but you can't trace it because
the people who held any kind of position were all killed. Everything was destroyed
including the legal culture," she said.
"What they know is that there is something they missed , they know they had
something they remember it. The will is there and for that I am confident."