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Importance of publicity of judicial process and publication of judicial decisions

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Ly Tayseng is Managing Partner of HBS Law. HBS Law and HBS Natary Public

Importance of publicity of judicial process and publication of judicial decisions

The publicity of the judicial process is a fundamental principle to ensure transparency and trust in the judiciary. It encompasses public hearings, pronouncements and the publication of judicial decisions, and is recognised in both national and international laws.

Article 31 of the Kingdom’s Constitution recognises and respects human rights as enshrined in the UN Charter, the Universal Declaration of Human Rights (UDHR), and all treaties and conventions related to human rights, women’s rights, and children’s rights.

Article 10 of the UDHR states: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

Article 11 stipulates: “[1] Everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”

Through the provision of the two articles, Cambodian courts shall respect the principle of the publicity of the judicial process.

For civil cases, Article 188 of the Code of Civil Procedure stipulates that the pronouncement of judgments shall be made in a public trial at its hearing schedule, and the original text of the judgments shall be read aloud by the presiding judge.

For criminal cases, pursuant to Article 316 of the Code of Criminal Procedure, debates shall be made at a public hearing, unless the publicity of such proceeding poses danger to public order or customs. Article 317 of the Code of Criminal Procedure requires that, in all cases, judgments be announced at a public hearing.

Cambodian courts have properly held public trials and public pronouncements of judgments.

However, they have yet to implement the publication of judicial decisions, except for the Extraordinary Chambers in the Courts of Cambodia (ECCC) which has widely disseminated its decisions and made the indictments, trial schedules, debates, pronouncements of the judgments, and the text of the judgments or its decisions accessible to the public on its website.

There are diverging views on the concept of publishing judicial decisions among the Cambodian legal and judicial community. Some argue that judicial decisions are not disseminated given that courts in general, except for the ECCC, do not have sufficient human, logistic and financial resources to publish and disseminate their decisions in print or in electronic formats.

However, others comment that the main reasons why the courts do not publish their decisions are, generally, leaders in the judiciary are unwilling to do so, or are concerned about the quality and accuracy of the court’s decisions.

Specifically, they say some decisions are related to political cases or are influenced by corruption, where the judicial process may not have been conducted in a proper and transparent manner. Additionally, judicial decisions may have been unreasonable, or there may have been a lack of proper analysis of the facts and legal reasoning, or a fear of public criticism.

Therefore, the courts do not allow the public other than the concerned parties to have access to their decisions. Even the extracts or summaries of their decisions are not accessible.

Such perception has eroded confidence in Cambodian courts among the national and international communities, painting a sombre picture that the courts have not kept pace with global development.

I believe that the publication of judicial decisions is very important. It ensures a fair trial, changes the negative public perceptions on the capacity of Cambodian judges and the judiciary as a whole, and increases the transparency of the public service of the courts.

It also establishes a clear legal resource for judges, lawyers and legal scholars; develops a consistent legal practice and culture with the spirit of public accountability; and will help improve the capacity of judges and court officials in the long run.

There are also concerns that the publication of judicial decisions could affect the privacy and rights of disputing parties as protected by national and international laws.

I believe that these concerns are not legitimate because the publicity of the judicial process and fair trials are core principles which serve larger public interests than the protection of individual privacy. Disputing parties shall realise that when they refer their disputes to courts, they will be exposed to a public trial.

On the other hand, once courts have implemented public trials and public pronouncements of judicial decisions, there will be no more reason to keep the body or text of the decisions in secrecy.

The general public and media should be given access to the judicial decisions in order for them to study, criticise and appreciate them. This allows the public to recognise the transparency and have trust in the judiciary.

I also believe that the preliminary steps in judicial reform should be focused on increasing transparency in the provision of public service by the courts, starting from the publication of judicial decisions at all levels following the examples of the ECCC.

Leaders in the judiciary shall not hesitate, for political excuses, to publish and disseminate the judicial decisions because public confidence in the judiciary should also be considered a major political concern.

This is because it will significantly contribute to improving social justice and the respect of law by law enforcement officers and the people, and reducing demonstrations and violence outside the court system. Furthermore, Cambodian judges will also strive to improve their capacities.

If the courts across the country are unable to publish and disseminate their decisions, the final decisions of the Supreme Court and the Courts of Appeal should be published on the bulletins of court decisions or posted on the courts’ websites or on the Ministry of Justice’s website.

It should be noted that in the late 90s the Supreme Court would publish and disseminate its decisions on the bulletins of court decisions but stopped doing so for reasons that are not immediately clear.

The justice ministry and/or the Supreme Court may also issue guidance or instructions to courts at all levels regarding the formats, contents, and mode of publication of court decisions, simply by removing any decisions which they believe may cause harm to the public order or good customs of Cambodia, particularly when it involves the issue of, inter alia, amorality or the dignity of women or children.

I have often observed that representatives of the Cambodian government, especially senior officials of the justice ministry, often claim that Cambodia is a rule-of-law country.

“The government does not interfere in the judiciary’s affairs,” they say. “The trials are fair to all citizens whether they are politicians or ordinary citizens.”

In contrast, members of the general public, national and international civil society organisations, as well as UN representatives, often seem to have a differing evaluation on the Cambodian judiciary – they do not seem to accept the defensive claims of the government and often make statements demanding the courts to conduct fair trials with transparency and in accordance with the law.

One of the reasons for distrusting the Cambodian courts, aside from political reasons in which the government representatives have been seen as actively exercising excessive power on judicial affairs, is the lack of transparency and publicity in the judicial process.

Leaders in the judiciary are not brave enough to publish court decisions to illustrate to the public the improvement in work capacity of Cambodian judges even when they are capable of making good decisions.

As a lawyer, researcher and jurist, it is still hard to be convinced by the claims from the government representatives because their claims may not be supported by the current practice, as perceived by the public at large.

I urge that judicial decisions be published so that lawyers, scholars and jurists could have judicial precedents and legal bases for studying, searching and counselling.

Ly Tayseng is Managing Partner of HBS Law.

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