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CCHR Briefing Note – October 2014 Judicial Reform Executive Summary This briefing note outlines the current state of the judiciary in the Kingdom of Cambodia (“Cambodia”), following the enactment of three controversial laws by the Royal Government of Cambodia (the “RGC”), and analyses shortcomings in the functioning of the judiciary and courts, and offers recommendations. On 16 July 2014, the Law on the Organization and Functioning of the Supreme Council of Magistracy, the Law on the Statute of Judges and Prosecutors and the Law on the Organization and Functioning of the Courts (the “three laws relating to the judiciary”) were signed into effect by King Norodom Sihamoni.1 The laws seriously undermine the independence of the judiciary through effectively giving the executive direct control over it. The first section of the Briefing Note provides a background on the way in which the judiciary and the courts operates, including an analysis of the current state of the rule of law, separation of powers and judicial independence in Cambodia. The second section provides a brief analysis of the three laws relating to the judiciary. The third section provides an introduction to additional barriers to the good functioning of the judiciary in Cambodia, while the final section sets out specific and realistic recommendations for judicial reform – reforms that the Cambodian Centre for Human Rights (“CCHR”) believes to be vital to a properly functioning, independent judiciary that is capable of serving the citizens of Cambodia and upholding the rule of law. Some of these recommendations are: 1. The three laws relating to the judiciary must be amended in order to ensure the independence of the judiciary and to comply with international laws and standards; 2. Community education should be provided and information disseminated to ensure that citizens are aware of their legal rights; 3. Improvements should be made in legal training and resources to produce skilled and knowledgeable lawyers who are experts in their field and fully competent members of the judiciary. Judges and lawyers must be fully conversant in legal rights and procedures but must also have adequate facilities and budgets to promote and enforce them; and 4. An immediate and unconditional commitment should be given from both the RGC and the judiciary that the courts will not be misused as political tools to silence dissent and stifle debate. This Briefing Note is written by the Cambodian Center for Human Rights (“CCHR”), a leading, non-‐ aligned, independent, non-‐governmental organization (“NGO”) that works to promote and protect democracy and respect for human rights – primarily civil and political rights – in Cambodia. 1
The Phnom Penh Post, ‘King OKs judiciary laws’ 15 August 2014 http://bit.ly/1BOv4op
Background: In Cambodia, there is no real separation of powers. The influence of the executive continues to pervade the judiciary and the courts lack independence. There is a widening gap between the constitutional guarantees in terms of the status of the judiciary and the way that the judiciary functions in practice. As this gap widens, the space for criticism and debate is shrinking, as the courts are used as political tools to silence opposition and dissent. The Constitution of the Kingdom of Cambodia (the “Constitution”) enshrines the independence of the judiciary and defines its function as being to “guarantee and uphold impartiality and protect the rights and freedoms of the citizens.”2 In the current political climate, however, the judiciary is unable to fulfill this guarantee, and outside influences permeate the courts on a regular basis. Politically-‐motivated cases have been brought against opposition politicians, land-‐rights demonstrators and those who speak out in defense of human rights. Conversely, those with government connections or positions of authority have enjoyed impunity, even when they have been accused of committing serious offenses. Criminal investigations – which in Cambodia are court-‐led – have been selective and inconsistent, creating a climate in which the rule of law is absent. In such an environment, it is impossible for the people of Cambodia to have trust or confidence in their judicial system, and it is widely regarded with suspicion and fear instead of being seen as an instrument whereby disputes and accusations can be dealt with peacefully and fairly. Despite the fact that citizens remain unable to put their faith in the judiciary, there has been no real mobilization of public support for judicial reform. While this inaction may be due at least in part to the fact that the RGC and authorities have shown a willingness to suppress dissent with violence – and on several occasions, lethal force – it may also have contributed to the RGC’s opaque and rushed adoption of the three laws relating to the judiciary and lack of opposition to it within the general public. On a more specific level, the way in which hearings are conducted is indicative of a lack of resources, insufficient quality of training, and a lack of awareness of relevant human rights standards. Basic procedures are not always followed correctly and trials can be rushed. Pre-‐trial detention is prevalent among adults and juveniles alike, and there is no separate juvenile law. Citizens generally have very little awareness as regards to their legal rights and how to exercise them, and the legal system is overburdened with a high volume of cases. Since CCHR commenced its Trial Monitoring Project (“TMP”) in 2009, there has been an incremental improvement in the level of adherence to fair trial standards. However, major concerns remain and it is clear that significant reform is required if any real headway is to be made. A credible and stable judicial framework is essential if the rule of law is to be upheld, which can only be achieved with fundamental changes and a genuine respect for constitutional ideals. Unfortunately the much awaited laws relating to the judiciary adopted in 2014, instead of guaranteeing the independence of the judiciary, seriously reinforce the control of the executive.
2
Article 128 of the Constitution
The three laws relating to the judiciary3 On 23 May 2014, the National Assembly (“NA”) approved the three draft laws relating to the judiciary, which were then approved by the Senate on 12 June and validated by the Constitutional Council on 2 July. The laws were finally given the seal of approval on 16 July by King Sihamoni. After years of waiting, it took just two months for a set of significant laws on judicial reform to be passed. The draft laws were not published and shared with civil society and the general public and were approved in few hours by both the NA and the Senate with no amendment or review, while the NA was missing all Cambodian National Rescue Party (“CNRP”) members following their boycott of the institution. The laws effectively give both the legislature and the executive decision making powers over the structure, functioning and financing of the judiciary, violating the most fundamental principle of the separation of powers. The Law on the organization and functioning of the supreme council of the magistracy4 The Law on the organization and functioning of the supreme council of the magistracy (the “Magistracy Council Law”) states that the Supreme Council of Magistracy (“SCM”) will assist the King with ensuring the independence of the judiciary as stated in the Constitution.5 According to Article 18 of the Magistracy Council Law, the SCM will have the power to decide and propose to the King the appointment, transfer, secondment, leave of absence, delineation of duties and termination of office of a judge and disciplinary action against a judge. As such, the SCM is a key body to ensure the independence of the judiciary. It is therefore extremely alarming that Article 4 automatically allows the Minister of Justice (the “MoJ”) to become a member of the SCM who in addition to being a member, takes the presiding position6 within it. The Magistracy Council Law through Article 4 also allows members of the NA and the Senate, the right to vote to appoint a member of the SCM. The inclusion of members of both the executive and legislature into the judiciary is a direct attack on the principle of the separation of powers. As such, the executive and legislature effectively have decision making powers that jeopardize the impartiality of judges and prosecutors. In addition, Article 8 and Article 15 put the general secretariat of the SCM and the SCM’s budget under the central administration of the MoJ. The control of the administration of the SCM and budget by the executive puts the judiciary under the direct management of the executive which seriously undermines its independence. The judiciary therefore has to rely on the MoJ’s budget allocation. One of the most important functions designated to the SCM is the ability to impose disciplinary actions on judges. The Magistracy Council Law states that members of the SCM assume the role of the Disciplinary Council.7 Although the MoJ is not involved in the Disciplinary Council8 in proceedings against 3
See CCHR Legal Analysis, “Three draft laws relating to the judiciary,” May 2014, http://bit.ly/1uJ6TVY An unofficial translation of the laws is available at: http://bit.ly/1uJ6KC1 5 The Magistracy council law, Article 1 6 Article 7 The Law on the Organization and Functioning of the Supreme Council of Magistracy 2014 7 Ibid. Article 20 8 Article 20 Ibid 4
judges and prosecutors, it is involved in the Disciplinary Council in cases which concern the President of the SCM. The inclusion of the MoJ into the disciplinary process is seriously concerning. The involvement of an agent of the government into the resolution procedure regarding a disciplinary action against a judge or prosecutor severely impacts the principle of independence of the judiciary. Judges should have the protection of a disciplinary proceeding which guarantees the principle of independence of the judiciary enabling it to carry out its function free from political influence and on the basis of clearly defined disciplinary faults. Law on the Statute of Judges and Prosecutors The Law on the Statute of judges and Prosecutors gives power to the MoJ to influence the promotion and career progress of judges and prosecutors. Article 33 of the law creates the “Promotion and Career Progress Commission” (the “Commission”) which is mandated to decide on the career progress of each judge and prosecutor. The Commission comprises of eight members whose chairman is the Secretary of State of the MoJ. In addition, worryingly the parameters of this authority are neither stated nor defined. Through its chairman in the commission, the executive therefore creates a framework in which a judge or a prosecutor would be inclined to trade in their impartiality for a promotion. Consequently, those judges whose decisions are in accordance with government policy can expect to enjoy longer judicial careers. Law on the Organization and Functioning of the Courts The Law on the Organization and Function of the Courts contains provisions that determine the organization, jurisdiction, functioning and financing of all tribunals and prosecution offices attached to them. According to international standards, the SCM should have jurisdiction over the administration and management of the tribunals to ensure the quality of justice.9 The SCM should have jurisdiction over the administration of the tribunals in order to monitor the implementation of the principle of independence within every section of the judiciary. However, Article 11 of the law confers these powers to the MoJ. In addition, Article 79 states that the courts’ budget will be allocated from the MoJ’s budget. Although the total budget for the courts is allocated from the state budget courts should be independent in the administration of the where and how that budget is allocated between the courts. In light of the above, it appears that the RGC’s will in adopting the three laws relating to the judiciary was to codify its practice of controlling the judiciary rather than enhance its independence. Other barriers to a properly functioning judiciary in Cambodia A tool to suppress dissent The judiciary is under the influence of outside sources in numerous ways. Government influence on the courts can be seen in the number of politically-‐motivated cases seen in recent years, as set out below. One of the most notorious cases was the prosecution in 2012 against some parliamentary members 9
Recommendation (f) of the CCEJ’s Opinion No. 10 (2007) on the Council of the Judiciary, dated 23 November 2007.
from the Sam Rainsy Party, such as Sam Rainsy and Mu Sochua, who were convicted for criminal disinformation or defamation charges. This politically motivated prosecution attempt to decapitate the leadership of the party, by the imprisonment of some of its member or by the expulsion from their parliamentary seats. Their judicial prosecution is a symptom of the endemic influence of the government party in the Cambodian judiciary.10 Another recent case was the imprisonment in July 2012 of Mam Sonando, the owner of an independent radio station and outspoken defender of human rights. Following some protests in Kratie province because of the eviction of around 1,000 families, the police arrested some villagers accusing them of being part of a secessionist movement. Despite the fact that there was not any evidence to implicate Sonando, he was charged with incitement offenses and participation in an insurrectionary movement. The fact that Mam Sonando was arrested and that his case proceeded to trial in the absence of any inculpatory evidence11 demonstrates the extent of the sway that the RGC holds over the judiciary. In glaring contrast is the absence of any investigation into the death of the 14-‐year-‐old girl at the hands of the authorities during the same protests, which both demonstrates that the law is not applied equally or consistently. Mam Sonando was finally released on 15 March 2013, after eight months in prison, by a decision of the Court of Appeal which changed the charges against him and reduced his sentence. He will remain under judicial supervision for the next three years. On 2 and 3 January 2014, 23 protesters, including human rights activists Vorn Pao, Theng Savouen and Chan Putisak were arrested while protesting for higher increase of the minimum wage for garment factory workers. Since their arrest, the 23 have repeatedly been denied their rights to a fair trial.12 They were held incommunicado by the authorities for five days, without access to lawyers, medical care or their families. The authorities finally revealed on 7 January that they were being held at Correctional Center 3 in Kampong Cham province, six hours away by road from Phnom Penh. Following international outcry they received suspended sentences on 30 May 2014.13 This combination of politicized prosecutions and impunity for the well-‐connected not only undermines the independence of the judiciary, but also poses a serious threat to the values of a liberal democracy. This situation is the result of endemic corruption and with the enactment of the three laws relating to the judiciary the power to regulate and discipline the judiciary remains in the hands of the executive. Insufficient Resources and Training The judicial and legal sectors were decimated during the Khmer Rouge regime, and the RGC has made commendable progress in terms of rebuilding these sectors and facilitating professional training, although there is still much work to be done. Immediately after the promulgation of the Constitution in 10
David Boyle and Cheang Sokha, "Opposition leader Sam Rainsy pardoned", 12 July 2013. http://bit.ly/1uJbV52 11 CCHR Legal Analysis, “Legal analysis of the charging and sentencing of Cambodian journalist and human rights defender Mam Sonando,” http://bit.ly/1uJeWlO 12 CCHR Press Release, “CCHR calls for the acquittal of the 23 and their immediate release,” 29 May 2014, http://bit.ly/1uJfwjt 13 CCHR Press Release, “CCHR welcomes the release of 25 protesters but strongly condemns their convictions,” 30 May 2014, http://bit.ly/1uJfp7r
1993, the majority of judges and lawyers had had little or no training.14 The Royal Academy for Judicial Professions (the “Academy”) opened in 2003 and it is hoped that this institution will in time provide the necessary level of training and education to produce a new generation of well-‐educated, competent and capable professionals. Currently, however, the reputation of the Academy is tarnished with allegations of bribery and corruption, with judicial appointments often going to the highest bidder, rather than the most capable candidate.15 CCHR’s own TMP often monitors cases in which judges announce verdicts with little or no legal reasoning, while the quality of legal argument in court is extremely poor. For instance, the 74.5% of the cases monitored at the Phnom Penh Court of Appeal between March 2013 and January 2014, the judges failed to state the relevant law applicable to the offense.16 Furthermore, the intricacies of legislations are often bypassed and evidence is rarely closely examined, trials are rushed with verdicts often bearing little correlation to the evidence presented; and convictions are routinely based on confessions, even in the absence of any other corroborating evidence. Such weaknesses in the judicial and legal sectors are the result of corruption and poor training and are exacerbated by a lack of resources, both in terms of personnel and finances. During dialogue meetings between members of the judiciary and CCHR’s trial monitors, judges have stated that defense lawyers are sometimes appointed on the day of trial because there are simply not enough lawyers to match demand and basic procedures, such as displaying public notices of hearings. The lack of sufficient numbers of lawyers, particularly defense lawyers, acts as an impediment to accessing justice and also has a negative impact upon the quality of representation if lawyers are not given sufficient time to prepare cases. Failures to follow basic legal procedures can also be attributed to a lack of quality legal training. Judges often fail to properly advise defendants of their statutory rights and, when defendants are reminded of their rights, judges routinely fail to give adequate explanations to them. During the fifth reporting period of CCHR’s TMP at the Court of First Instance, from 1 July to 31 December 2013, judges informed and explained the defendants’ rights to be legally represented and to remain silent in only 2% of cases.17 At the Court of Appeal, between 1 March 2013 and 31 January 2014 in only one case out of 204 did the judges explained the right to remain silence; and only in five cases did they explain the rights to be legally represented.18 Unfortunately, instances of judges answering mobile telephones and leaving the courtroom during the hearing continue to occur and do nothing to enhance their image of professionalism or independence either. 14
Dr Lao Mong Hay, ‘Institutions for the Rule of Law and Human Rights in Cambodia’ (Asian Human Rights Commission, undated article) http://bit.ly/N5I6cp 15 Asian Human Rights Commission, ‘To Be a Judge, Be Ready to Bribe’ (12 May 2009) http://bit.ly/N5JonG >. 16 CCHR sixth Bi-‐annual report “Fair trial rights in Cambodia,” December 2013, http://bit.ly/1qh6aVI 17 Data relates to the Phnom Penh Court of First Instance only, from 1 July 2011 to 31 January 2012. 18 Data relates to the Phnom Penh Court of Appeal only, from 1 March 2013 to 31 January 2014.
Conclusion and Recommendations While the necessary changes to the judiciary are fundamental and far-‐reaching ones, CCHR nevertheless considers them to be both realistic and achievable. Much of the necessary legislation for a functioning judiciary already exists, either in draft form or in legislation that has already been enacted, and these laws need to be strengthened and refined in order to address the concerns set out in this Briefing Note. The recommendations regarding training and education can be commenced within a relatively short time-‐scale, and are practical and sustainable, provided that adequate financial and human resources are made available, and provided that the RGC is willing to make a genuine commitment to meaningful judicial reform. Amendments to the three judiciary laws must be made with genuine and open consultation with civil society organizations and the general public: Some of the amendments that must be made to the laws are as follow19: •
• •
Members of the SCM, members of the disciplinary council of the SCM, and members of the Commission of Promotion in Rank and Grade should be elected by judges and prosecutors. Candidates for elections should not be affiliated with the legislature and executive and should include non-‐judges; The MoJ should not have managerial power over the General Department of Judicial Administration, it should be the power of the SCM; The MoJ should not manage the finance of trial courts and prosecution offices; instead it should be the power of the SCM.
Increase education/awareness of rights: Education and awareness of rights must be increased not only to inform citizens of their rights and how to access them, but also to mobilize public support for judicial reform. Such progress can be achieved by distributing information to defendants in courts and prisons as follows: • Defendants are often unaware of their legal rights; information should be disseminated to all those involved in court cases from the outset of proceedings. Simple leaflets and/or posters should be distributed to police stations and prisons where defendants are held on remand, setting out their legal rights and entitlements • The same information should be made available at courts, and all courts/prisons should hold a directory of legal aid lawyers with contact details for lawyers made available to defendants • Courts should make sure Judges inform and explain their rights to the defendants. A standard form with those rights should be drafted, so the court clerk or the judge can read it out at each hearing.
19
For more detailed recommendations please see CCHR Legal Analysis, ‘Three draft laws relating to the judiciary,’ May 2014, http://bit.ly/1uJ6TVY
Improved training and resources within the judicial and legal sectors and introduction of a Code of Conduct for judges: Training must be improved from the earliest possible stage, with a focus on legal arguments, rules of evidence and the principles of fair trial standards. As such, CCHR makes the following recommendations: • The Bar Association of the Kingdom of Cambodia should take a more active role in the education of trainee lawyers and also in creating an effective continuing professional development scheme for practicing lawyers • Additional financial resources should be channeled into the legal and judicial sectors to ensure that courts have adequate facilities and that there are sufficient numbers of legal aid lawyers • A robust Code of Conduct for judges should be drafted and enforced by the SCM to ensure adequate standards of professionalism within the judiciary The judiciary and the RGC must make an immediate commitment to cease the judicial harassment of human rights defenders and activists: The recommendations set out in the above categories can only be successfully implemented if the judiciary and executive make a genuine commitment to put an immediate stop to the use of the courts to silence political dissenters and critics of the RGC and its allies: • The RGC and the courts must stop the judicial harassment of human rights defenders, political activists and opposition politicians • The RGC must agree to the immediate and unconditional release of those currently detained for politically-‐motivated convictions that have no basis in law and no place in a liberal democracy For more information, please contact Sun Bunthoeun CCHR Trial Monitoring Project Coordinator, via telephone at + (855) 11 943 213 or email at
[email protected]
