January 14, 2009
By Lao Mong Hay
UPI Asia Online
Column: Rule by Fear
All the specified international human rights norms and standards have now become an integral part of Cambodia's Constitution. This Constitution spells out clearly that Cambodia shall recognize and respect human rights as stipulated in all relevant international instruments. It provides for the separation of powers, an independent judiciary, the guarantee of this judicial independence by the king with the assistance of a supreme judicial body called the Supreme Council of the Magistracy, and the protection of human rights by the king and the judiciary.
However, despite all the constitutional guarantees and protections mentioned above, in reality the Cambodian people have not enjoyed these rights, including the right to a fair and public hearing by a competent and impartial tribunal. There is no such tribunal as yet in Cambodia.
Since the abandonment of communism in the early 1990s, the Cambodian judiciary has not proved to be independent despite continued criticism over its lack of this important attribute. It is very much under political control. Most, if not all, members are affiliated to the ruling party, with the chief justice of the Supreme Court being a member of the party's standing and central committees.
More recently the Cambodian authorities have recognized the obvious, though indirectly. Last October a deputy prime minister, Sok An, announced that the government “will be preparing a workshop on the law and courts,” saying that the government had heard “bad rumors about courts in Cambodia” and it was going “to work very hard to change that.” He added that the government “needed to enforce discipline and make sure that the courts are independent."
As for competency, the courts have recently been found to be short of it. Last year the Senate's Legislation and Justice Committee conducted an investigation into the functioning of the courts and the legal knowledge of judicial officials. After the completion of the investigation in a number of courts in November, its chairman, Ouk Bunthoeun, revealed some of the committee's findings, one of which was the inadequate knowledge base of these officials. "The judges and the prosecutors are facing difficulties implementing the laws …There are a lot of technical terms that (they) don't understand," he said.
The Cambodian courts have also been found to lack impartiality. This lack comes from their lack of independence and from corruption. A survey by Transparency International released in February 2008 found that the judiciary, in tandem with the police, was the most corrupt institution in Cambodia.
A study by an NGO released earlier, in December 2007, said, “ The primary functions of the courts continue to be: 1) To prosecute political opponents and other critics of the government; 2) To perpetuate impunity for state actors and their associates; 3) To promote the economic interests of the rich and powerful.” Ouk Bunthoeun, mentioned above, said his committee had also found the bias and corruption that the courts have been accused of.
The dismal status of the courts of law and the ensuing denial of constitutional right to a fair and public hearing by an independent, competent and impartial tribunal should no longer be tolerated. The king of Cambodia should discharge his constitutional duty, get the Supreme Council of the Magistracy which he chairs, and seek support from the government and the Parliament to ensure the independence of the judiciary.
As the first step, the law on the status of judges and prosecutors that the country's Constitution has specifically stipulated and the government has long promised, was enacted and effectively enforced. This law should affirm and protect the constitutional immovability and independence of this group of judicial officials so as to ensure the security of their tenure. It should prohibit their affiliation to any political party while their tenure is secure.
The Supreme Council of the Magistracy should free itself from political control as well and, like judges and prosecutors, its members should not be affiliated to any political party. This council should effectively enforce its code of ethics for judges and prosecutors and establish the procedure and mechanism for complaints against these judicial officials which should be easily accessible to the public.
In the meantime, the leadership of the country should respect the separation of powers and the independence of the judiciary, and end their control over it. Furthermore, this branch of government should be allocated adequate resources so that it can properly provide justice and protect human rights.
(Lao Mong Hay is a senior researcher at the Asian Human Rights Commission in Hong Kong. He was previously director of the Khmer Institute of Democracy in Phnom Penh, Cambodia, and a visiting professor at the University of Toronto in 2003. In 1997, he received an award from Human Rights Watch and the Nansen Medal in 2000 from the United Nations High Commissioner for Refugees.)