CDC - Legal and Judicial Reform Strategy


KINGDOM OF CAMBODIA Nation Religion King Royal Government of Cambodia DRAFT STRATEGY Legal and Judicial Reform Office of the Council of Ministers June, 2002 For discussion purpose only

DRAFT Legal and Judicial Reform Strategy Background At the Donor Consultative Group meeting held in Tokyo, Japan on June 12-13, 2001, The Royal Government of Cambodia (RGC) presented its draft strategy for legal and judicial reform (LJR). In the strategy, the RGC reiterated its commitment to the rule of law as a fundamental element of achieving the government’s vision for a democratic Cambodia where human rights, free enterprise and market economy are fostered. "The strategy was developed to promote the establishment of a credible legal and judicial framework conducive to private sector development and the enforcement of personal and property rights and obligations, and to contribute the establishment of rule of law and good governance”. The elements of the strategy included Publication of Laws, Law Reform, Strengthening the Judiciary, Legal Training, Private Sector Involvement, and Gender Equity. The strategy was presented with a view to initiating discussions leading to the finalization of the strategy and the development of an action plan. Progress in Development of a LJR Strategy, June 2001 - June 2002 A review of the Governance Action Plan was conducted in December 11, 2001. The RGC acknowledges the slow progress in the areas of legal reform and judicial reform. The Donor Coordination Group on Governance shared this view and recommended that the RGC better focus on its legal and judicial reform strategy. Coordinated by the Chair of the Governance Group, comments from a number of donors on the June 2001 strategy was communicated to the RGC through the Council of Ministers. Although there were many recommendations, the areas in which there seemed to be near unanimous agreement among the donors included the areas of wider consultation in the reform process; a well coordinated LJR strategy; acceleration on implementation of LJR; regular publication of the official gazette; and adoption of the law on the magistracy. With all of this in mind, the Council of Ministers, using the Council of Jurists as the focal point, and with assistance on coordination by the World Bank, has developed the following draft strategy. Goal The strategic goal of the strategy has been articulated as: 'Establishment of a credible and stable legal and judicial framework for upholding the rule of law and fostering private sector led economic growth’ As stated in our draft strategy presented at the CG meeting held in Tokyo in June 2001, ‘A properly administered and fully operational rule of law and justice system does not just act as an arbiter of disputes between parties; it also serves to uphold the rule of law, promote the establishment of a stable legal framework and adapt the law — to the needs of the economy’. The RGC is fully committed to a private-sector led market economy in Cambodia, and with the imminent entry to the World Trade Organization, the RGC’s goal is to establish a stable legal and judicial framework where ordinary citizens, as well as national and international investors can go about their business with the confidence that their rights at all time will be protected by a transparent, predictable, and fair justice system that is credible and stable. There are essential elements at a practical level that are required to establish such a legal and judicial framework. Taking in to account the unique history, culture, society, economy, and the future aspirations of the Cambodian people, as well as the comments made by the donors on legal and judicial reform in May 2002, the RGC has identified six, inter-dependent strategic objective areas as follows.

The following sections will present a brief overview of each of the above objectives. Strategic Objective 1 Improve the protection of fundamental rights of the Cambodian people The protection of the human rights of people is the foundation of a democratic society. Individuals must enjoy basic freedom, and this freedom cannot be interfered with in any way without a fair trial in which innocence is presumed and guilt must be proven. The LJR strategy of Cambodia has therefore identified this element as its first strategic objective. The Constitution of the Royal Government of Cambodia ensures the protection of human rights of the people of Cambodia as follows: “The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, and children’s rights. Every Khmer citizen shall be equal before the law, enjoying the same rights, freedom and fulfilling the same obligations regardless of race, colour, sex, language, religious belief, political tendency, birth origin, social status, wealth or other status. The exercise of personal rights and freedom by any individual shall not adversely affect the rights and freedom of others. The exercise of such rights and freedom shall be in accordance with the law.” Building upon the experience of the donor agencies, non-governmental organizations, and the partnering government agencies who have been involved in human rights over the years, the RGC will develop a comprehensive action plan to inform all citizens of their fundamental rights, train all relevant government officials to promote the protection of such rights, to establish mechanisms for reporting and adjudicating any violations, as well as putting in place values and systems where violations will be completely eradicated. The action plan for the strategy will treat human rights as an objective to be achieved by a specific set of activities, as well as a cross cutting theme to be addressed through all of the other activities. The strategic inputs, as summarized below recognize that special attention must be paid to vulnerable groups whose rights are in particular danger of being violated or adversely affected. 1. Provide training and awareness programs on fundamental rights at the community level especially to women, children, and other disadvantaged people, including establishment of and awareness on reporting mechanisms 2. Provide training and awareness to officials in law enforcement agencies on human rights and fundamental rights as provided for by the constitution of the Royal Government of Cambodia including the establishment of guidelines and standard procedures 3. Provide training and awareness to journalists and NGO’s. Strategic Objective 2 Improve the legislative framework The RGC statement on LJR distributed at the 2001 Consultative Group Meeting held in Tokyo, discussed the importance of Law Reform and confirmed that ‘a coherent legislative framework consisting of an adequate body of ruled is an essential element of the Rule of Law’. The RGC believes that, a) developing a legislative reform program of priority legislation essential to the to the creation of a credible legal and judicial framework; b) establishing a mechanism to coordinate the legislative process across government ministries and institutions charged with responsibility for legislative reform; and, c) developing the capacity of agencies and institutions responsible for legislative reform, including, in the case of the National Assembly and Senate, facilitating the development of their capacity to consider, initiate, review or adopt legislation, as the case may be; are essential to the establishment of rule of law in the country; d) establishing the Master List of the laws to be enacted. The RGC strategy in this area is to establish a legal framework which enables a market economy to function properly including substantive law such as property rights, business entities, contract, fair marketplace, labour, and financial matters; as well as institutional arrangements such as administration, judiciary, and publication. With the imminent entry to the WTO, the RGC has passed most of the relevant substantive law, but more needs to be done in institutional arrangements. In this context, the RGC has already commenced activities to strengthen the law making capacity of the national assembly, and has made considerable progress in increasing similar capacities of the executive branches of government as the Council of Jurists with assistance from donors. Critical legislation such as the Penal Code, Criminal Procedure Code, Civil Code, and Civil Procedure Code are being developed with donor assistance. The important Land Law has been passed by the National Assembly. However, there are several gaps in the legislative framework; and, the process for drafting and passing of laws needs to be streamlined. More effort is required in this area and the current strategy will focus on the following inputs: 1. Finalize pending legislation 2. Using a participatory methodology, identify gaps in the legislative framework, and fill such gaps 3. Strengthen the entities involved in passing of new laws and amendments to laws 4. Provide training in legislative drafting to officials involved in such activities throughout the government Strategic Objective 3 Provide better access to legal and judicial information This Strategic Objective also stems from the 2001 LJR strategy presented in Tokyo, where the importance of publication of laws was stressed. The entire body of laws of Cambodia, including all decrees, sub-decrees and any other subsidiary legislative or administrative regulations, should be developed and published with complete transparency. The strategy under this component to ensure that such laws, decrees or regulations are widely publicized at the time of promulgation so that everyone is aware that a new law or regulation has been introduced, or a former one amended; and, thereafter be freely accessible to lawyers and general public alike. Similarly, the RGC will also ensure that decisions of the superior courts are also available for use by judges, lawyers and the general public. Such publication and access to case law is essential to the development of a professional judiciary where principles such as the doctrine of precedent can be followed. ‘The doctrine of precedent dictates decisions reached in previous cases in the same jurisdiction dealing with the same or similar issues should be followed in current or future cases unless there is a good reason to deviate, is a fundamental principle of adjudication. The doctrine of precedent is founded on a sense of fairness and the belief that decisions should be consistent and not arbitrary so that legal and judicial consequences of conduct can be predicted. However, for this element of jurisprudence to effectively function, our Judges and lawyers must have reliable and easy access to previous decisions of the superior courts. In this instance, we need donor assistance to establish a comprehensive case law digest to be published on a regular basis... Strategic inputs include: 1. Publish existing laws and all subsidiary legislation; 2. Ensure availability of printed legislative enactments to Judges, lawyers, law students, government officials, private sector and any other interested parties; 3. Ensure the comprehensive, timely, official publication of all new laws and subsidiary legislation, eg: official gazette; 4. Establish a case law digest for the printing and dissemination of information on judgments of the higher courts; 5. Establish legal data base-CD ROM; 6. Produce lexicon in Cambodian, French and English. Strategic Objective 4 Enhance quality of legal services The availability of high quality legal services is a fundamental aspect of access to justice for all citizens. The right of a person brought before the courts to have access to professional legal representation is in inherent right in a democratic society. In this sense, legal services have to be improved across the board, to increase availability of professional legal aid to poor citizens as well as the improvement of professional services to other sections of the society, especially to the private sector in case of commercial disputes. It is also essential that there is an adequate number of qualified lawyers available to provide such services. One of the problems faced in Cambodia is the fact that there are approximately 200 lawyers serving a population of 12 million people. The RGC strategy to increase this number in a sustainable manner to ensure that legal representation is available to all citizens of Cambodia including the most rural areas. With the increase in lawyers, the RGC strategy will also examine ways in which the Government can provide free legal representation to accused persons who cannot afford to pay for a lawyer. Training of lawyers including continued professional development of lawyers is an essential element of this strategic objective. With the establishment of new important laws such as the Land Law, sufficient availability of well-trained lawyers is essential to the success of the legal system. The development of the private sector will also demand improved quality in legal services available in Cambodia. The RGC will coordinate with donors interested in this area to assist in the training for lawyers with a view to improving the quality of services they can offer to litigants and others, as well as increase the numbers. The training will include substantive and procedural matters, as well as ethics and duties to clients. The strategic inputs will cover the following: 1. Provide high quality and easily accessible legal aid services for disadvantaged people 2. Increase number of lawyers to provide legal advice to litigants and the total population all over the country 3. Provide efficient training to law students as well as continuing professional development programs to ensure highest possible quality of legal advice is provided to clients 4. Ensure that due process is followed by all Judges, lawyers, court staff and other law enforcement officers Strategic Objective 5 Strengthen judicial services The strengthening of the Judiciary is an important element of the RGC strategy for LJR. As stated in the LJR strategy presented in 2001, ‘an efficient, independent and transparent judiciary is an essential element of any credible law and justice system that is based upon the Rule of Law’. This strategic objective is to achieve such an independent and transparent judiciary. The 2001 strategy also identified four areas of importance to the RGC: a) Process of appointments and promotions and the exercise of discipline in the judiciary; b) Court organization and the administration of justice; c) Terms and conditions of employment; and, d) The work environment of judicial staff The first three elements have been dealt in the current draft of the ‘Law on The Statutes of Judges of the Kingdom of Cambodia’. The draft is to be continued for discussion at the Inter-ministerial Meeting of the Council of Ministers Office when the amendment of the law on the Supreme Council of Magistracy is approved by the National Assembly. The strategy for improving the professionalism of the judiciary also reflects the aspirations of the RGC with regard to private sector led development. If disputes arise, particularly between enterprises and the government, there needs to be a system for the interpretation and enforcement of the law that is independent of the executive and legislative branches of government. To encourage entrepreneurship and market activity, the RGC strategy will ensure that decisions of the courts will be made according to clear and publicised rules and guidelines, and all parties will be treated fairly and impartially. In particular, there will be no special treatment or discrimination against any party appearing before the courts. The strategic inputs will include: 1. Strengthen independence, credibility, transparency and accountability of judges through training and better remuneration; 2. Introduce systems on appointment, promotion payment of Judges, and disciplinary action through a legislative enactment; 3. Establish a code of ethics for all judges, and court staff coupled with related disciplinary actions; 4. Introduce uniform case management and court management techniques; 5. Improve systems for the enforcement of judgments; 6. Ensure availability of sufficient courthouses with basic facilities throughout the country including the establishment of special courts; 7. Improve physical infrastructures of the tribunals; 8. Establish pilot courts. Strategic Objective 6 Introduce alternate dispute resolution methods Alternate dispute resolution (ADR) methods are becoming increasingly popular in many societies as a cost-effective, often non-confrontational, and speedy ways to settle disputes at all levels. ADR can be loosely separated in to two levels. The first is the resolution of commercial disputes by businesses through mediation or arbitration. The second level is village or community level resolution of minor disputes through mediation. The first level of ADR was briefly discussed in the RGC strategy presented in 2001 as; ‘In many cases, the most expeditious appropriate form of dispute resolution is arbitration. The Royal Government will undertake a study on the merits and modalities of arbitration and, subject to the findings, proceed to facilitate the establishment of arbitration facilities’. The strategy here remains the same, and under this objective the RGC will examine the possibility of introducing arbitration facilities especially for commercial matters. Commercial mediation is also a new method of settling business disputes. The RGC sees the advantage of resolving commercial disputes through a mediation process as businesses who settle their disputes in a win-win environment through mediation, will be better positioned to continue their relationships in a spirit of good will after the disputes have been settled. The strategy is to investigate the suitability of such a system to Cambodia. Settlement of disputes at the village level is a cost-effective and speedy system for villagers to settle their disputes without the expense and time involved in having their disputes resolved at a courthouse that may be quite a distance from their homes. There is some evident that informal mediation is in currently in existence at the rural level. There is evidence in the history of Cambodia that this was common from ancient times, but there is no evidence of the rates of success. Admittedly, those conducting mediations are not trained in this area, and some disputes may not be mediated to the satisfaction of all parties. The strategy, therefore, will investigate what is existing at present at the grassroots level, and drawing on the experience of other developed and developing countries, will, as appropriate develop a mediation program including training for mediators. Therefore, the strategic inputs in this area include, after careful study and investigation of what is suitable and sustainable in the context of Cambodia to: 1. Introduce Commercial Arbitration and Commercial Mediation methods 2. Streamline mechanisms for resolving minor disputes through mediation Next Steps The strategy, developed by the Council of Jurists, has been approved by H.E. the Chief Justice. The strategy will be presented in the nearest future to other relevant agencies in the RGC for their comments, discussions, and approval. Subsequent to agreement by all RGC agencies, the strategy will then be presented to the donors and civil society for their comments by August/September, 2002. The RGC sees the development of this strategy and the implementation of the action plan as an ongoing activity. At the same time, given the importance demanded by LJR in the context of a democratic society, and in order to achieve the LJR objectives in a systematic and effective manner, the RGC is currently in the process of forming a combined Council for Legal and Judicial Reform. The Council will be co-chaired by His Excellency Senior Minister Sok An from the Council of Ministers, and His Excellency Chief Justice Dith Munty. H.E. Neav Sithong, Minister of Justice will also be in the Council. The Council will be assisted by a Permanent Coordination Body (PCB) consisting of representatives from all stakeholder government institutions. The strategy formulation will continue to receive assistance from the World Bank as the first component of a LJR project that the RGC is now negotiating with the World Bank. The Council and the PCB will take overall charge of the finalization and implementation of the RGC strategy; guiding and coordinating the efforts of donors in this area; and, following up on all LJR issues in Cambodia. The PCB will also be the monitoring mechanism for the World Bank assisted project ensuring at all times that the views of all legal and judicial players in the RGC are well-represented. The RGC believes that this is crucial to achieving sustainability of not only World Bank assisted activities, but also activities implemented by all donors in this area.