CDC - Speech by H.E. Mr. DITH MUNTY


Speech by H.E. Mr. DITH MUNTY Chairman of the Council for Judiciary Reform Consultative Group Meeting June 20 and 21, 2002 — Phnom Penh

Excellencies, Ladies and Gentlemen: Experience has shown us that any judiciary reform is a very sensitive process— and that is true even in developed countries. First of all because this realm is a highly technical one and furthermore, because it involves the supreme powers of the sovereign state. The challenge is greater in the case of Cambodia because of its particular history and geographical setting. We are not faced with developing brand new institutions but with putting in place a legal system of Cambodian essence, one of the pillars of the constitutional state and guarantor of basic rights regarding the protection of people, the protection of property and the safeguarding of state institutions. In this country where various legal influences coexist, such as Roman civil law and “common law”, we have a good basis for meaningful dialectics as far as Cambodia is concerned. Indeed, Cambodia is confronted with a tremendous challenge that it fully intends to meet before the end of the present legislature—the challenge being to come up with its own legal system that is not just a dubbing of a system in use in another country. As [the famous French jurist] Montesquieu said in the Age of Enlightenment, *“[laws] should be so characteristic of the people for whom they are made that only by great coincidence might those of one nation fit another.”* Excellencies, Ladies and Gentlemen: During this short speech, I would like to provide a quick overview of what has been done in recent months in the area of judiciary reform (I), after which I will comment on the future outlook in terms of a preliminary timetable (II). I. What has been done. This report has two main components: some in-depth reflective thinking on the nature and extent of judiciary reform (A) and implementation of concrete actions (B). A. Reflective thinking on the nature and extent of judiciary reform. Reform cannot take place in the absence of a prior definition of the requirements and the implementation of an action strategy. The first item that comes to notice—and I cannot ignore it—is the slowness with which judiciary reform is taking place. This apparent slowness must not be equated with a failure to act. The desire to bring about a rapid solution to complex problems carries the risk of doing only a superficial job. On the other hand, action implies the existence of a plan that may require several years to bring full circle. The Cambodian government is conscious of the need to implement a judiciary reform process suited to the historical, economic, sociologic and cultural background of the Kingdom. It is bound notably by Article 158 of the 1993 Constitution to safeguard the identity and originality of existing khmer law, provide for its coherence and close in its gaps. It furthermore wishes that the judiciary reform takes into consideration the features of ASEAN, the regional organization of which Cambodian became a member on April 30, 1999, as well as its desire to become a member of the World Trade Organization (WTO) in the near future. During this phase, one of study and analysis, the government became convinced that reform of the judiciary must be sensitive to specific needs and be implemented according to a set of simple, coherent principles. Its sole purpose must be to make the Khmer legal system more comprehensive and efficient. In other words, give it a legal and judicial basis for credibility and the stability of the constitutional state and promote economic development led by the private sector. The institutions in charge of implementing the reform have therefore carefully analyzed the various documents and proposals from Cambodia’s partners who want to help it in this project to ensure consistency in all that is done. On this point, allow me to thank the various cooperation agencies that have been so helpful to us in this area. B. Concrete achievements. It is in such a spirit that a number of major achievements went on record over the last year. I would like to briefly mention them here. - The establishment of the Royal School of Magistracy (École Royale de la Magistrature), under *anukret* dated February 5, 2002. As a public institution unique to this region, the RSM will provide initial and on-going training for judges in the Kingdom of Cambodia. It will feature a two-year program alternating academic study with hands-on training in a court of law context. The RSM is furthermore designed to avoid a number of training redundancies and weaknesses that have greatly hampered the judiciary system. A woman, herself a magistrate, has been appointed to the position of superintendent of the Royal School of Magistracy under Kret Royal dated April 25, 2002. - The establishment of the future Professional Training Center for Lawyers (Centre de Formation professionnelle des avocats) under *anukret* dated September 15, 2001. Starting in late 2002, this school will conduct an entrance examination for a first group of law students. A high-caliber, two-year curriculum that I hope will be comparable to the one for magistrates, will be provided for budding lawyers. It will be implemented by the Cambodian Bar Association in partnership with overseas bar associations with which it enjoys close ties. - Completion of a Report on Visits to Jurisdictions in Cambodia: This document, the first of its kind, outlines a precise “inventory of fixture” on the status and activity of 10 of the 23 courts in the Kingdom of Cambodia. It contains a number of recommendations supported by a statistical analysis that are designed to enable the rehabilitation and equipping of ten courts of law during the year 2003. These court sites are intended to be made into training centers to receive student judges from the first class slated to being their practicum year in January 2004. This same study may soon be extended to the other jurisdictions in the Kingdom of Cambodia as part of a multi-year rehabilitation plan for all of the jurisdictions. The reach of the plan will depend upon the extent of law court activities and territorial jurisdiction in each case. - Recruitment of 31 new magistrates who are Currently undergoing training in courtroom settings. - Restructuring of the R L J Board with two co-chairmen and representatives of a number of institutions. - On-going codification work: This involves a review, by the ad hoc commissions, of the draft civil and penal codes, as well as the codes of civil and penal procedure. This work is moving along steadily and the experts involved expect that these landmark texts will be finished before the end of the current legislature. - Sectoral legal reform: A number of pieces of legislation and amendments to existing laws have played an important role in crucial cases, leading to a strengthening of the constitutional state. Time does not permit to list these comprehensively, but it can be said that legislative activity is moving forward, thus gradually filling in gaps in the legal system. - Cooperation with regard to criminal police and in the penal sector: Major progress has been made in these areas thanks to foreign aid. - A think-tank on independence of the judiciary: The government studied this priority issue that, eventually, will see the putting in place of institutions crucial to guaranteeing the independence of the judiciary. Among other things, the role of the Supreme Council of Magistracy will be defined with regard to the appointment, career path and discipline of judges, as well as the role of the Ministry of Justice. An anukret dated May 24, 2002 has given a secretariat to the Supreme Council of Magistracy. The Law Respecting the Supreme Council of Magistracy has been amended and its budget resources enhanced. - The foregoing are the key, crucial achievements that I would like to draw to your attention in relation to the judiciary since the previous Consultative Group Meeting on June 12 and 13 in Tokyo. We obviously cannot now just sit on our laurels, and the purpose of my next point is to outline the way ahead for the months, indeed year to come. II. Future outlook and provisional timeframe. We must firstly consolidate our achievements (A) while at the same time develop new functional fields (B). A. Consolidating our achievements. The first thing is to get the two schools up and running, effectively fulfilling their entry-level and on-going training mission for judges and lawyers in the Kingdom of Cambodia. This will be a contribution to human resources development, a crying need in this country. Thus, at the request of the Government of Cambodia, an action plan for developing the RSM has been drafted by the steering team. The plan includes acquisition and setting up the premises, administrative staff recruitment, training of trainers, holding a competitive entrance examination for student judges, preparation of 10 pilot court houses as training centers and the preparation of a two-year curriculum of entry-level training for prospective judges designed to be intensive in nature because the time allotted for the course of studies is under three years. The goal has been set to hold the competitive entrance examination in November 2002 so that the training of student judges can get underway by January 4, 2003. In this way, the courts will be able to tap the resources of the first graduating class of judges that will be available by January 1, 2005. We hope that a similar action plan will be applied to the Professional Training Center for Lawyers, so that there will be a contingent of new graduate lawyers available at the same time as the new judges. Furthermore, work on the factual report on jurisdictions in Cambodia is expected to continue and be completed so that by July 31, 2003, the Ministry of Justice will have at its disposal the comprehensive document it requires in order to propose a multi-year plan for the renovation of jurisdictions in complement to that of the 10 pilot court houses that are to be used as training centers for RSM student judges as previously mentioned. Codification operations will be continued at the same rate, with the goal of having these major pieces of legislation tabled before Parliament during the year 2003. It would be good if these four major codes could be accompanied with preambles or explanatory statements to provide information for the parliamentarians who will be called upon to vote on these provisions that will have a very significant impact on the workings of Cambodian society. B. Developing new functional fields of reform Further areas for reform may focus on the following four points: 1. Relationship between judiciary institutions and the executive power. Our Constitution clearly affirms the principle of the separation of powers and that of the independence of the judiciary (article 51). But the principle of separation of powers does not mean that there is no dialogue between the powers. Independence of the magistracy does not mean that judges are not accountable. Thus, to make these provisions meaningful, the overall framework set by the Constitution must be rounded out by a definition of the organization and areas of jurisdiction of the various institutions involved in the judicial system. First and foremost, the area of jurisdiction of the Ministry of Justice must be defined in relation to other institutions required by the constitutional state, such as the Supreme Council of the Magistracy and the Order of Lawyers. The Supreme Council of Magistracy is one of the vital instruments to guarantee the independence of the magistracy. However, that implies that it has sufficient means to carry out its powers, duties and functions with regard to the appointment and discipline of judges. And the basic issue of the criminal police is one that must also be dealt with in cooperation with the Ministry of Interior. 2. Anti-corruption measures and a law respecting the magistracy. Corruption is a scourge that endangers political order and legal security. It is particularly dangerous when it affects the judiciary. Very quickly, if possible in the course of the year 2002, a law respecting magistrates must be enacted, one that defines their rights and obligations and guarantees their permanent appointment and their independence by giving them a level of compensation large enough so that they will always say no to corruption. In this regard, it is necessary to closely tie in the Supreme Council of the Magistracy by strengthening its legal affairs inspection department and drawing up a code of ethics for judges. These are vital steps in the fight against corruption. The establishment of the RSM makes it all the more urgent to have such law on the magistracy. It would have a determining effect on the recruitment and pay level of the first graduating class of student judges selected at the November 2002 competition. 3. Law awareness: The operation of a constitutional state implies broad familiarity with positive law. The Ministry of Justice must therefore disseminate legislation as quickly as possible, most importantly to the law courts or tribunals. The masses must also be familiar with the law, as is true of all members of the foreign community. Therefore extension services must be provided through the appropriate media to facilitate understanding thereof by the people. The goal pursued is none other than acceptance of the rule of law by the greatest number. The establishment of a resource center at the Royal School of Magistracy: was covered in a technical memorandum from the project chief on November 14, 2001. This measure will unquestionably offer an effective response to the crucial problems of setting up legal data banks and getting legal documents distributed to all stakeholders concerned by such issues. The RSM must receive the necessary funding in order to get this center up and running, prior to the arrival of the first group of legal students on January 1, 2003. 4. Harmonization of legislation and consistency of legal terminology: The work of the two ad hoc commissions set up by the Ministry of Justice to review and adapt to the local context the draft penal and civil codes and codes of civil and penal procedure highlights the need for an overall preliminary analysis to ensure the consistency of draft laws originating from other ministries with the previously mentioned draft codes. This was recently proved true with the heritage law, which had a number of provisions contrary to the penal code, notably with regard to the amounts of penalties or extent of criminal sanctions. The work done by the commissions will provide a starting point for the development of a trilingual lexicon of legal terms that has shown itself to be direly needed. In view of the limited time I have been allotted, I am unable to deal with the many, many other areas that are to be covered by the reform process. We realize that the needs are tremendous, but the job does not seem that overwhelming to us. All agree that the reform is an absolute must. My sincere wish, in the interest of democracy, is that the international group of donor agencies will continue to show confidence in us by their provision of aid, both of a technical and financial nature. Thank you for your attention.