By virtue of Article 39 and the new Article 128, our Constitution has, since 1993, solemnly created a basic right for ordinary folks to challenge the actions of the government’s institutions.
Victims of illegal action would receive compensation for the damage they would have suffered, and this right would be exercised through the courts of law.
Breaking from the previous tradition, the framers of the liberally inspired Constitution had essentially imagined a novel legal framework – indeed, a new planet in which courts would become the ultimate arbiter in settling disputes between rulers and the ruled.
As neither the ruler nor the ruled could, by their own will, determine the meaning of the law, I would argue it is the duty of the independent judges to say what the law is.
This is so the so-called judicial review could effectively subject the legality of the Administration’s activities to court rulings.
In brief, the framers had intended to open up the door for administrative litigation, to set the new planet in motion.
Twenty years have silently gone by, and serious law students, as well as the curious public, can’t help wondering whether this new planet has gone afar. Most assuredly, it has not. Why not?
There are two main reasons. First, not every Constitutional provision, supreme as it can be, is complete in and of itself.
Very often, Parliament would need to enact laws to implement particular Constitutional rights.
Article 39 empowers ordinary citizens to sue the state for compensation, but it does not say how.
In the absence of a procedural law to govern administrative litigation, judges would be reluctant to entertain administrative lawsuits.
Second, administrative law is not a popular subject in Cambodia. For instance, it is not among the written tests for the entrance examinations to the Royal Academy for Judicial Professions, which essentially trains future judges.
Does this mean, one might ask, that when someone suffers from an illegal act of a government’s organ there is nothing a court can do?
In my opinion, Article 128 provides sufficient grounds for judges to act.
The lack of law does not make rule of law inapplicable. On the contrary, it is exactly when the law is ambiguous or non-existent that a court, as the guardian of the law, performs its job best by searching for the very foundation of justice.
Rule of Law (in other words, law has rules to follow) is different from Rule by Law (which blindly makes everything subject to law, even to bad laws).
When adjudicating an administrative lawsuit, a judge simply needs to consider three pre-conditions: reviewability, timing and standing.
Unless certain acts have been made unreviewable by law under convincing evidence, or their unreviewability can be fairly discernible in the detail of the legislative scheme, any action of the executive branch, in general, should be held reviewable.
Timing means that the lawsuit is acceptable only if the action complained of is final, and the petitioner must have exhausted other available administrative remedies before coming to court.
Finally, standing requires an injury in fact, causal connection between the injury and the conduct that gives rise to complaint (fairly traceable to the action of the defendant) and that the court’s decision will likely redress the injury.
Article 39 and Article 128 have caused the rise of the planet courts.
How fast the planet can move, and which orbit it may embark upon, depends, in the absence of a procedural law, on the conscience of the independent judges whose most decent job is to provide justice even in the most unlikely places.
Dr Virak Prum is the Dean of Law at the University of Puthisastra in Phnom Penh