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The uneven scales of Khmer justice

The uneven scales of Khmer justice

P olitics is playing an ever increasing role in a justice system that was supposed

to be independent. But that is only the beginning of the trouble... Matthew Grainger


MILLIONS of dollars are being poured into reforming Cambodia's justice system that

many foreigners believe is so riddled with problems it is beyond short-term repair.

Decisions and policies are routinely made that contravene laws and the Constitution.

Analysts agree that the judiciary is the cornerstone to the CPP's seemingly successful

agenda of retaining and entrenching its control of the country.

Justice Minister Chem Sgnuon, a senior CPP figure, writes regular circulars interpreting

laws to chief judges, and it is Sgnuon who hires and fires judges and prosecutors

- something only independent bodies described in the Constitution are allowed to


Sgnuon's latest memo dated Sept 13 to provincial chief judges is a case in point.

He ruled as from that date prisoners' parole will be decided by a "specialized

department" within his ministry "which is in charge of this matter".

The law, however, says that the court that convicted the prisoner should decide.

"There are heaps of examples much worse than this," moaned one Western


A Supreme Council of Magistracy, born from the Constitution, was to have helped the

King ensure that the courts were independent, and to oversee the discipline of judges

and prosecutors.

However that institution - which is also entitled to nominate three members to the

Constitutional Council - remains in Sgnuon's control. A law was recently passed establishing

the Supreme Council, but it has yet to function.

Judges depend on Sgnuon to give them answers to questions of law, which constitutionally

should be the job of the "independent" Supreme Council. The Constitution

also forbids government officials from holding more than one position.

Put simply by one Western legal advisor: "There was a big fight, and Sgnuon


Not only were most court officials killed during the Khmer Rouge regime, but the

subsequent restructuring of laws and an under-trained judiciary under various governments

has left Cambodia with a mess of often incomplete and conflicting laws.

The final decision on whether laws are constitutional lies with the independent Constitutional

Council, but that body has yet to be set up after two years.

Though there are laudable exceptions, provincial governors - who used to control

the running of their courts under the State of Cambodia rule - have largely retained

their positions and possibly, Western analysts say, some degree of judicial control.

Many of those governors, for instance, still have a say on how local courts spend

their budget.

Another issue is that the local populace don't respect the courts, analysts say.

"Some parts of the county we have something approaching 'law', but others are

almost totally lawless," said one trainer. "People would not even consider

resolving a dispute in court," he said.

Nor do people know their lawful rights, such as the right to remain silent, or to

have a defender.

Judges say they need legal training, from how to begin a criminal investigation,

to ethics, to how to increase independence from political pressures.

Prosecutors say they want to know how to run an investigation from start to finish,

and complain they need basic equipment to analyze physical evidence.

Court trainers talk of trials being corrupted by politics or money, saying that civil

servants - most importantly judges - are poorly paid. There are anecdotes of judges

and prosecutors tilling their rice plots in the early morning before coming to work

in the court; others riding cyclos on the weekend.

The lack of a standard arraignment process meant that accused are being detained

for periods longer than those legally allowed. This also promotes corruption, law

analysts say, with those who can afford to pay getting swift trials.

Trials are notable for both the lack of physical evidence and testimonies from witnesses.

There was also a high incidence of uncorroberated confessions being the basis for

conviction, they say.

Judges and prosecutors often work in collaboration during trials, lawyers say, again

something forbidden under the Constitution.

The physical limitations of courts and prisons also worry lawyers and human rights

advocates, who cite problems with power, repairs, paperwork, communication - right

down to sanitation.

French lawyers work as advisors in Sgnuon's ministry, trained in the same civil code

on which the Cambodian system is based. The money being poured into law training

by USAID - to the Court Training Program, the Cambodia Defenders Project, CADEDAS,

ADHOC, LICADHO and Vigilance

- is predominately going to American lawyers trained in common law, or Khmer trainees

still learning the law. In addition, there are judicial training projects being done

by UNCHR and the Task Force on Human Rights.

Most Western judicial trainers stress they are striving to avoid duplication of projects

and subsequent confusion among the Khmers they are trying to teach.

"How would you want us to work?" said one. "Every little thing we

do helps." "The money is not going down the tubes," said another.

Others disagree: "USAID is wasting its money. There is no willingness on the

part of the Ministry of Justice to have an independent judiciary."

"The shots are being called by CPP. USAID would be better off spending money

only to train judicial police and in court administration," one said.

"If USAID and other donors are serious about change, they should set preconditions,

like the World Bank does before it lends money. At the moment donors are begging

the Ministry to be allowed to carry on with their projects - it should be the other

way around."

Judicial bodies "just have a long laundry list waiting for us," said one

trainer. "Computers, cars, what buildings they want us to build... they see

these programs as Santa Claus coming into town," he said.

However, judges - and Sgnuon - are very keen that Cambodian institutions improve

judicial techniques with training, most lawyers say.

That is proved by Sgnuon allowing Western trainers free access within Cambodian courts

- a concession that lends itself to political risks - though it also reflects his

confidence of his own position as "the boss", they say.

"Every month Sgnuon meets his senior judges, just like [Interior Co-Minister]

Sar Kheng meets with his police commanders and provincial chiefs," said one

lawyer. "[Sgnuon] clarifies laws and technical matters, but in doing so the

judges sure know who is the boss... and it's certainly not Funcinpec," he said.

"Yes, it's pretty gloomy," said another source. "But that's a fair

indication of the system as it is."

Civil servants needed to be paid enough to respect the law, said one trainer. "It's

not alone sufficient [to solve all the problems], but it's a prerequisite."

"If judges, policemen, soldiers and government clerks don't get enough money

to feed their families, how can they possibly administer justice or government functions

in a fair and even-handed manner?

He said with all the foreign aid flowing into the country "how much is going

in to ensure a transparent, well-funded civil service?" He said it would not

cost so much money to ensure that judges were paid enough "so that if they chose

to be fair, they could".

"There are times when a judge really wants to know something," said another

trainer. "The question is when our objective advise conflicts with the political

instructions from the Ministry of Justice, what wins out? But if our advise is not

there to begin with, it's very clear where the answer will come from."

Sources say that the procedural changes being advocated by, among others, the Court

Training Project, would not remove corruption entirely.

However, better procedures would mean "fewer places where the system can bend,"

said one.

Training projects had to be long term "and [must] recognize that they start

not only without 'Rule of Law', but also a lack of technical competence and experience

which is consistent with everything else in Cambodia, doctors, engineers, teachers...,"

he said.

"I would never justify either human rights violations, or the incursion of the

Ministry of Justice into the judicial process, or the rich and powerful being able

to abuse the system... these things ought to be eliminated yesterday, but there is

progress in other areas," said one lawyer.

"If I didn't believe we could make things work eventually, I wouldn't be here,"

he said.


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