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Struggling for a fair judiciary

Struggling for a fair judiciary

Up two twisting flights of stairs and through a maze-like continuum of conference rooms and antechambers, sits the office of Phnom Penh Municipal Court (PPMC) Chief Chiv Keng.

The cramped room is covered with charts and lists and proclamations. Hanging on the door is a black judicial robe and draped over his chair is a smart Western sport coat. But the spartan surroundings, and Keng's own modest Khmer business suit, stand in sharp contrast to the knuckle-sized diamond ring that glitters from his left hand as he fingers the heavy wooden gavel lying on his desk.

Since he was appointed to replace Sor Suphary as head of the PPMC on October 13, Keng has been charged with revamping the capital's infamously inefficient court system.

Many observers consider Keng, a former Kampong Thom court prosecutor and 18-year veteran of the Supreme Court, the point man in Hun Sen's "iron fist" crackdown on corrupt court officials. But others say the appointment of a high-level CPP party member is yet another example of how the executive branch continues to exert its control of an ostensibly independent judiciary.

"Politicians still want to control all branches of the state. We urge politicians to free all judges, let them be non-partisan and stop appointing them by the political party quota system," said Sok Sam Oeun, executive director of the Cambodian Defenders Project (CDP). " We are skeptical that the executive branch will relinquish its control of the judiciary."

Keng is the first to admit that manning the frontlines of a comprehensive overhaul of the justice system is no small task. After all, he inherited a 10,000-case backlog, a plummeting public opinion of the court's transparency and increasing pressure from the government to produce positive results. His new responsibilities come against the backdrop of a Cambodian Bar Association (CBA) wracked by internal dispute, a Ministry of Justice that claims it exists on a $710,000 annual budget, and stern calls from top donor countries - including the normally soft-spoken Japanese Embassy - that the judiciary be reformed as a mandatory requirement of the recently awarded $601 million aid package.

Moreover, Sam Oeun says that more than 50 percent of Cambodia's court cases are tried without lawyers. And attorney Som Chandyna, of the Asia Pacific Law Group and CBA member, said torture, forced confessions, and other human rights violations are common while many civil cases are turned into criminal cases in order to detain suspects illegally.

"In the past people have considered the Phnom Penh Municipal Court like a market for doing business," Keng told the Post. "They considered the cases like goods that they can buy."

But, as he brings forth reams of court documents, arrest warrants and statistical information, Keng is keen to highlight recent improvements at the PPMC.

"I know that the government, the Ministry of Justice, the Council for Juridical Reform, the Supreme Council of Magistracy and the Supreme Court are satisfied with our reform," Keng said.

"Right now you can see a different situation here. Before, crowds would come to talk about their cases inside the court compound, and it was disorder. Now only lawyers and clients are allowed. We have also reformed the administration; before it was very slow and many people were not happy. Also, we are now only charging 1,500 riel for court stamps, and people do not fear that the court will ask them for money."

Keng, who says he has requested more courtrooms, judges and prosecutors from the SCM, also cites an improved relationship between judges and with law enforcement as benchmarks of his short tenure.

But some diplomats and legal analysts are not convinced this is enough. Some say that reforming the judicial system from within is unrealistic, and that the very foundations of the legal and justice systems need to be addressed.

"Clear roles in the judiciary need to be established by law, not by the executive leader," said Sam Oeun, whose CDP joined the Cambodian Human Rights Action Committee (CHRAC) in calling for reform and recomposition of the SCM ahead of the Consultative Group (CG) meeting held on March 2-3. "Right now, it's not only the people, but the government itself, that doesn't trust the courts. Nobody believes the prime minister will loosen his 'iron fist'."

International influence

Though the government's promise of court and law enforcement reform is being administered by the coalition government and monitored by Cambodian civil society groups, the re-drafting of civil and penal procedure is a decidedly international affair.

At the recent CG meeting, judicial reform was named, along with the adoption of an anti-corruption law and natural resource management, as one of the top Joint Monitoring Indicators (JMI) that must be implemented by the government.

"The judiciary is not really independent. There is a lack of competence and there is corruption - our Cambodian friends confirm this," said German Ambassador Pius Fisher on March 7. "The culture of impunity has to be broken. Some examples need to be set as warning signals to others that they can't get away with everything. They need a much stronger will to battle this cancer. A judiciary with political masters won't do its job."

Fisher stressed that a flawed judiciary is a huge roadblock for investors and foreign business interests.

"Along with corruption, the key issue every investor looks at is the court system," Fisher said. " This is paramount for every investor considering coming to Cambodia."

As it stands now, the draft laws on civil and criminal court procedures are being reviewed with the help of foreign experts.

"The French are doing the penal code and the Japanese are doing the civil code," said US Ambassador Joseph Mussomeli.

"The one of particular importance of course is that the penal code still has defamation as a criminal offense. But the prime minister has already come out strongly saying that he doesn't want it to be a criminal offence. This would be a huge improvement in the whole region. I mean, criminal defamation is used from Poland to Africa to Singapore to stamp out dissent. If the Cambodians were to take the lead and genuinely decriminalize defamation it would be a remarkable breakthrough."

But in a March 7 interview, a high-ranking official from the Japanese Embassy in Phnom Penh expressed his country's concern about the use of Western experts to redefine the "existing structure of the French-based legal system" and the difficult task of accurately translating abstruse legal concepts.

"Japan's experience after World War II is something we can transfer to Cambodia," the spokesman said. "We want to encourage balanced development and investment and for this an independent judicial branch and a strong civil code must be adopted. With the help of Japanese legal experts a draft of the civil procedure code has been submitted to the National Assembly for approval."

Japanese Ambassador Taka-hashi Fumiaki, in an internal CG address, said, "The establishment of an independent and professional judicial branch is an urgent task.... In this vein, we donors should refrain from employing foreign consultants, commuting to this country on a short-term basis, who tend to transplant their own legal systems, or in the worst cases, introduce excessively innovative rules and systems, virtually non-existent in any sovereign country. As far as we are concerned, JICA experts in charge of legislative assistance are all long-term residents in the country making efforts together with Cambodian counterparts in solving day-to-day problems and respecting Khmer legal terminology."

Most observers admit that even with steadfast political will, judicial reform will take time.

"We will see a whole new set of laws - but that's not all of it," said Mussomeli. "You need better-trained judges. You need judges and prosecutors who are all paid better salaries. You can't expect someone who has six children to feed to work on $60 a month and not be tempted by bribes and other forms of corruption.

"During the Pol Pot regime, the judiciary was essentially obliterated. It takes time to build institutions and achieve rule of law. Right now the the judiciary is like 16th-century England. We believe in the government's intentions - we just hope it doesn't take three centuries."


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