|
(i)
Introduction
NGOs
are encouraged that the donors have created a Governance Working Group to
monitor the progress of the RGC in implementing its commitment to
strengthen the rule of law in Cambodia.
NGOs
note that the RGC has made some effort in the areas of the Good
Governance, Civil Administrative Reform and Judicial Reform in Cambodia,
including most notably the creation of schools for training magistrates
and lawyers.
Although
there have been positive achievements during the previous year, the NGOs
still have serious concerns about the RGC’s apparent inability to
institute fundamental reforms to strengthen and promote democracy, human
rights, and the legal and judicial system. Neither has the RGC taken
significant steps to tackle Cambodia’s key problems of corruption,
impunity and political violence.
In
order to fulfill the above requirements, NGOs encourage the RGC to include
the following recommendations in its national action plan:
(ii)
Key Issues & Recommendations
A.
Judicial Reform
-
The
RGC should significantly increase its current national budgetary
allocation to the Ministry of Justice and Court system. The
current figure of 0.3% is grossly inadequate to finance even basic levels
of functioning. The justice system must be financed at a level that will
enable both its day-to-day functioning and the implementation of reform
programs.
-
The
RGC should expedite the criminal procedure code, penal code, civil code
and civil procedure code, the draft law on domestic
violence, and a law on the National Congress. The National Assembly and
Senate should ensure that these laws are consistent with other applicable
Cambodian Laws and comply with the Cambodian Constitution and
international instruments. All practitioners, such as judges, prosecutors,
lawyers and police officers, should participate in the law-making process.
These draft laws are very important. They should be widely discussed, and
comments from all sectors should be received by the RGC and seriously
considered, in a series of hearings if necessary.
-
The
RGC should expedite as soon as possible a Law on the appointment, removal
and dismissal of judges and prosecutors. A
draft Statute of the Magistracy that reforms these and other areas, has
been before the RGC for over three years without any apparent progress.
-
The
RGC should strengthen the legal and institutional framework governing the
judiciary by establishing a clear court organization
and administration of justice, terms and conditions of employment, work
environment of judicial staff and promotion of women in the legal and
judicial sector.
-
Salaries of judges and
prosecutors should be raised in order to combat and reduce corruption in
courts. Because the judicial
power is equal to the other two branches of government, the salaries of
judges and prosecutors should be equal to those of parliament members and
members of the executive branch.
-
The curriculum of the
School for Magistrates is vital to building the quality of Cambodian
judges and prosecutors. It should be
developed based on the Constitution with input from a wide range of
qualified experts and institutions, including legal NGOs. The School of
Magistrates should also provide additional training to the existing judges
and prosecutors, and allow special entry to magistrates’ training for
qualified and experienced Cambodian lawyers with demonstrated skills,
knowledge, experience and integrity.
-
The
overall structural reform of the judiciary must include a clearly defined
supervisory role and jurisdiction for the Supreme
Court, as the high organ of the judiciary, and additional Appeal Courts
instituted for better access to higher level courts.
-
Judges
and prosecutors should not be members of or appointed by, any political
party, and if necessary, all relevant Cambodian
laws should be amended to make this clear.
-
Corrupt
judges. Prosecutors and other court officials should be punished in
accordance with the law. A functioning. Independent and effective
anti-corruption commission should be created to investigate cases.
Again, the RGC has two draft laws before it that seek to achieve these
objectives but there has been no apparent action to expedite their
passage through the legislative process: the draft Statute on the
Magistracy and the Draft Law on Anti-Corruption. The police should be
reformed to be responsible and accountable in order to help to combat
corruption.
-
The
RGC should establish a system of publishing court decisions, starting with
those of the Supreme Court.
-
The RGC should establish
a commercial court and an administrative court.
-
As in France, the power of
the investigating judge to consider pre-trial detention should be
transferred to an Approval Judge in the local court and the detention/bail
hearing should be adversarial. Investigating judges in Cambodia are
over-detaining accused and failing to follow detention criteria specified
in the UNTAC Law, due to undue influence from MOJ circulars, lack of
efficient mechanisms to keep track of bailed accused and a desire to
expedite the investigation by keeping accused in detention for easy
access.
B.
Supreme Council of the Magistracy (SCM)
-
The
SCM should be reformed to ensure its independence. Although the Supreme
Council of the Magistracy (SCM) Exists, this institution has not
effectively carried out its role of ensuring the independence of the
judiciary. That is because its members are either not themselves
independent or free from political influence, or they are preoccupied with
heavy workloads. The Law on the Establishment of the Supreme Council of
the Magistracy should be amended to exclude members of the executive
branch, to avoid conflict from member’s existing functions and to ensure
that no members are active in any political party. Moreover, the
independence and competency of the whole judiciary needs to be the task of
reform. Whenever related laws are to be amended, the elements necessary to
secure independence and competency must be adequately entrenched.
-
Members
of SCM must be non-partisan (have officially resigned from membership of
any political party), should hold no position in the Legislative or
Executive Branches, and should work full time in the SCM. Additional
members should also include representatives from the Cambodian Bar
Association and academic institutions.
-
Members
of the SCM should be selected from the ranks of judges, prosecutors,
lawyers, or law academics.
-
The
composition of the SCM should consist of: The King as president, President
of Supreme Court; Prosecutor General of Supreme Court; two elected
magistrates (one judge and one prosecutor); two lawyers from the CBA; two
law academics.
-
When
the President of the Supreme Court and the Prosecutor General of the
Supreme Court become members of SCM, they should no longer adjudicate
cases in the courts. This means that they should not play the role as the
judge and Prosecutor.
-
Because
His Majesty the King cannot chair the SCM, it is better for the King to
select and appoint a Chairman of the SCM for a fixed term. This appointed
person must be independent from any conflicting public function.
-
The
SCM law should be amended and the draft law on the Statute of Magistrates,
which is currently being considered by the RGC, should be expedited and
should more clearly define the respective roles of judges and prosecutors.
-
A
code of conduct and ethics for judges and prosecutors should be drafted
and adopted.
-
The
SCM must have actual power to punish magistrates who commit any wrongdoing
in accordance with the Statute of Magistrates and Code of Ethics of
Magistrates. In order to implement this discipline, the two said laws must
be quickly adopted.
-
The
SCM should receive an autonomous budget and have its own secretariat, which is independent from the Ministry of Justice.
-
The
SCM must draft an annual action plan for the programs it will conduct
during the year. The Action Plan will serve as a basis for an evaluation
of its performance. Furthermore, the SCM must establish a hearing
procedure for disciplinary actions taken against adjudge or prosecutor for
misconduct.
C.
Improvement of judicial process and access to justice:
-
A
prompt mechanism to correct errors in the judicial process and to expedite
complaints and appeals must be developed by granting special powers to
Appeal Courts (if more than one is created) and the Supreme Court.
-
Improvements
in procedural, investigative, forensic, and trial mechanisms, including
judgment writing techniques, are part and parcel of the court management
system at all levels of courts, but especially at trial court level.
Capacity building of judges, prosecutors (with full accusatorial
responsibility), court clerks, and other investigating officials is
crucial to the reform process and demands equal attention.
-
Enforcement
of judgments is another critical area. Failure to enforce judgments within
a defined period must be dealt with by severe sanctions. A strong Contempt
of Court Law should be drafted and adopted that enables both the security
of the court and its personnel, and the enforcement of its judgments.
-
Access
to courts for all must be facilitated through legal aid schemes, and legal
representation should be made mandatory.
-
The
government’s investment in legal aid, to provide all Cambodian citizens
with equal access to justice, needs to be substantial. The organization
and funding of a legal aid system needs to be tied into any comprehensive
judicial reform plan.
-
Creation
of special courts (or benches in the courts) to deal with the special
nature of issues relating to juveniles, labor law, family law, commercial
law, or even trafficking in persons, has become an important priority.
D. Law Publications:
-
The
RGC should enable government officials, judicial staff, attorneys, legal
education institutions, legal scholars, business people and society as a
whole to have access to legal information through the publication of an
“Official Gazette”. Public access points could be law libraries and
legal research facilities, CD-ROM legal databases and official websites.
The RGC should also establish a government bookshop in Phnom Penh where
all official public documents and government publications may be purchased
at a subsidized rate.
E.
Civil Society (NGO) participation in lawmaking process
-
Civil
Society especially should be permitted to participate in the various steps
of the legislative process, including being able to defend recommendations
before government committees or select Committees of the National Assembly
or Senate.
-
All
draft laws relating to the judiciary that are currently under
consideration should receive comments from legal experts, stakeholders and
civil society organizations. All legislation should go through a
consultative process that provides adequate opportunity for study of
substantive content and time for comment.
-
CHRAC
notes with concern the recent enactment of laws amending both the SOC and
UNTAC criminal laws without thorough participation and discussion with
civil society legal experts. The resulting laws could have serious
side-effects. For example, the extension of the 48-hour police detention
period by the SOC amendment is based on the fallacious assumption that
such period is for the purposes of investigation. Rather than
investigating thoroughly until they have lawful grounds for arresting,
Cambodian police tend to arrest first in order to conduct an investigation
that justifies the arrest. The amendment to the SOC Law simply encourages
this practice. The amendment to the UNTAC Law seriously erodes judicial
discretion in sentencing, which, in the absence of affirmative defenses in
Cambodian law, could lead to serious injustice where criminal acts are
otherwise justified — for example, by self-defense.
F.
Cambodian Bar Association (CBA) and Human Rights NGOs
-
The
CBA should increase the number of lawyers who can practice law by
accepting more trainees for Lawyers Professional Training or accepting
experienced law graduates who are working in the public or private sector.
-
The
CBA must be empowered and strengthened so that it can build the capacity
of its lawyers with assistance and support of donors. Appropriate policy
changes and resource allocations must be made immediately to increase the
number of lawyers and make their legal skills effective, while at the same
time ensuring transparency and accountability in the CBA’s management
and use of funds.
-
Legal/Human
Rights Organizations need to be strengthened by all means and should have
sufficient financial support to at least maintain their level of
operations.
G.
Transparency
-
Transparency
in both law making and enforcement is essential. Publication and analyses
of laws, parliamentary debates and resolutions, and court judgments should
be given top priority.
-
Top-down
corruption is probably the single biggest obstacle to the country’s
development. A law on anti-corruption and assets declaration has been
drafted and must be expedited by the government with the full
participation of Civil Society. Timelines and conditionality for the
implementation of this law, or a similar law, must be tied to donor
assistance. Ultimate responsibility for its implementation lies with the
Prime Minister who has the primary task of ensuring that the
Anti-Corruption Commission created pursuant to such law is itself free
from corruption. Hence, the utmost care should be taken in constituting
such a Commission and the institutional framework to enable it to operate
effectively.
-
A
Law on Freedom of Access to Information must be drafted and adopted with
the participation of Civil Society.
-
The
National audit authority must be independent. The Candidates for this
authority must be non-partisan.
-
Ombudsman-like
institutions with investigative capacity and reporting obligations to
parliament can also contribute to accountability and transparency in
government; and should be set up by law wherever needed. However, there
is a shortage of those with the expertise and credentials to fulfill
this type of role;
H. Establishment of
Khmer Rouge Tribunal
-
The
establishment of the Khmer Rouge Tribunal should be prioritized in order
to find justice for victims in accordance with UN standards.
-
The
Royal Government should respect the MOU made between the UN and RGC and
cooperate with the UN to establish this tribunal, if necessary amending
the law to enable conformity with international trial standards. | Content| Back
|
Top
| Next |
|
|
