Issues In The Judicial System Of Cambodia
The court system in each country is governed by the Judicial branch. In Cambodia, the judicial system is usually criticized by the citizens extremely due to the injustice of the result of the decision. There are many reasons behind this issue. First, the influential of the executive branch over the judicial branch affects very much to the justice in the court. Second, the corruption that happens in society also affects to the court system due to the lack of rule of law to control this action. Third, the lack of independence of the decision making also causes the judicial system to be injustice in the real practice. Therefore, this paper will discuss about these problems, and try to find any solution for this issue.
The Judicial System is an important system to solve the problem in the society. In practice, this system is divided into three classes of courts: (1) Court of the First Instance or provincial municipal court, (2) Appeal Court, and (3) the Supreme Court. Besides this, there is other two courts which are special courts. First, the Military Court is the court that solves the cases that related to military crime or discipline. Second, the Extra-ordinary Chamber for the Court of Cambodia (ECCC) solves only the cases that happen from 1975 to 1979, which committed by the Khmer Rough leaders.
The main problem in the judicial system of Cambodia is in the Court of the First Instance or Provincial Municipal Court. All of the civil cases must go to this court first, and the main problem also happens in this court. As we see in the real cases, the cases that involve with the influential person seem usually bias and injustice. The rich or influential people usually win the cases even though they do not provide anything to any member of the court. For instance, any cases that have bad affects to the top leaders in the government, the court does not take that case to consider and find the solution. As in recently, case between a member of the parliament and the opposition party member with the prime minister, the court does not take the case that the member of the opposition file against the prime minister to consider, but the court take the case that the prime minister files against her.
In addition, the corruption that is the current issue in the society also affects the judicial system. As we know, the poor rarely win the case when there is any problem with the rich. The main cause of this issue is from the lack of independence of the court and the lack of serious punishment. By seeing in the rules in the Supreme Council of Magistracy, no judges or prosecutors were dismissed from their jobs or positions. So the judges or any other members of the court are not afraid to do any corruption. Moreover, the lack of morality of the judges or prosecutors in their field also affects the system of the court in Cambodia. For example, some judges even though he or she is so rich with a high quality of life, they still do corruption in their job without respect the principle of morality in their professional.
The judicial system in Cambodia requires the strong enforcement of the law. This means that the rule of law in Cambodia is not strong enough to control the society in order. People who are powerful are not afraid to do something wrong, for when they face any problem, they use their money to help them. In addition, the lack of knowledge of law of Khmer citizen is also providing some disadvantages the good implementation of law. For instance, when a person does something wrong, sometimes he or she does not know that it is against the law, and it easy also for the court to cheat on them.
The lack of getting the information from authority also has some bad effects for Khmer citizen. The local authority seems serve the interest of the people who have money to corrupt them. In practice, when we face a problem and need the help from the authority, we must have some money to pay for them. In addition, the lack of understanding between people also provides a lot of issues in the society, and the issue sometimes is solved with violent act. Besides this, the local authority seems ignore with the social problem. They serve only something that provides the interest for them. The morality of their professional mostly is not acceptable. For instance, the official who works in some ministry or departments is so rude when we need something to be helped.
In addition, Constitution of Cambodia states that all Khmer citizens have equal rights, and their rights are protected by the Constitution. However, in practice, the powerful people are still superior to normal people. This issue needs strong commitment of the government to settle more effectively. The government should pay more attention to reform this system in order to balance the isolation of right of the citizen in the society.
In my point of view, all of these issues can be solved with the reform of the whole system. First, the judicial system needs to be reformed from the top to bottom. The independence of the court should be improved. There should be stronger punishment to the court members when he or she works against his or her professional. In addition, our legal system should be strengthened more efficiently. The quality of implementing the law by the legal officer should be better than this. Moreover, the law on corruption must be enforced more effectively; the power or influence of the top leaders should be more separated from the judicial branch. The legal education in our education system should be stronger, and the quality of the law should be more debatable during the process of making. For example, as we know, most of the law in dafted by the Council of Ministers. This indicates that most laws serve the interest for the government like the law on corruption spends very long time to make, for this law will provide a lot of bad effect for the government. In addition, during the debate of law in the National Assembly, the opinion or advice of the members of the opposition is rarely taken for consideration. Therefore, the imbalance of power in law making provides the imbalance of power in the democratic process in Cambodia.
Besides this, the legal education in the education institution must be strengthened. This education should be made from high school or below not only at university. There should be more encouragement for the student to study law and the government institution. In addition, the education of law for the citizen in the society should be more promoted.
In addition, the problem of legal reforms in Cambodia is the old model that was left by the Communist regime during 1980s and early 1990s. In fact the Supreme Court of Cambodia does not have any of the functions that a similar court has in a liberal democracy. Even before 1993 its power was limited to the reading of case records after trials. The only action it could take after reading a case record was to request a court to hear a case again. In reality the purpose of reading the judgement of the courts was to ensure that the courts function in a politically correct manner, rather than to ensure an appeal process for parties who may want to show that the original court has arrived at a wrong judgement. Even since 1993 the Supreme Court has not exercised an appropriate function.
What is required is a fundamental change to the system of arriving at judgements before trials or appeals. In the context of Cambodia, this requires some change from the political-legal culture of the communist era to a liberal democratic legal culture. To lead such a change, the leaders who initiate the change need to be familiar with the principles and practices of such a legal system.
The independence of the legal profession is very much a part of making a proper trial system possible. If judges make judgement before trials, lawyers have no real role. Recent attempts to control the Bar Association are problems that make the judicial system to go backward. It even takes away the hope of possibility of changes in the future. The function of a Bar Association is to protect the profession from the state and to maintain professional standards by mechanisms which are controlled by the association on its own initiatives. A Ministry of Justice has no function in this matter. However, under the old system of communist party control of all professional bodies, the independence of professions was only a political slogan devoid of any reality. This seems to be what is happening now, after an initial period when defenders and others engaged in legal aid and training brought a breath of fresh air and created some hope of change. New restrictions on funds to maintain these initiatives are clear signal that the old system wants to close the door and return to its old tricks.
Furthermore, the principle of separation of powers in government is fundamental of a democratic state based on the rule of law. The judicial power is one of the three powers of a democratic government. It is pursuant to this power that justice is contributed in disputes, not only between citizens and citizens, but also between citizens and government and between government organs and agencies. Therefore, there is the need to establish the judicial power in a mechanism independent from the legislative and executive powers of the government, with adequate guarantees to separate it from political and other influences in order to secure its independence. Understanding and respect for this arrangement in constitutional government, the effective system of justice within which judges can be discharged their roles independently. It is also essential that the judiciary not only remain independent, but also be perceived by all consumers of justice to be so.
Besides all of these, while modern constitutions provide for an independent judiciary, there are some difficulties to be encountered in the implementation process. Cambodia, in which the legal standard is still low as well as financial and human resource constraints, it is often found that the application of the international and regional standards seems not clear. While some use these constraints as an excuse to resist such application, there are others whose concern is genuine. So we need all possible understanding and assistance from the international community to progressively achieve these standards while evaluating the values of judicial independence in the process.
The independent of justice system cannot be achieved without providing a political environment and the respect of all the basic constitutional values for good government. These values include accountability and transparency in all public institutions, including private institutions and corporations dealing with the public. It is only within such a governmental structure that an independent judiciary can function effectively. It is therefore essential that when structuring an independent justice system other constitutional institutions are given attention and are provided for, including provisions for an independent legal profession, efficient enforcement and prosecutorial agencies with a free press and respect for constructive non-governmental organizations.
An independent judiciary is the backbone of any democratic society under the Rule of Law, and this is especially true in Cambodia, where the success of the transition to democracy bases so much on its establishment. In a report of a U.N. Special Representative, he concluded that the implementation of training programs aimed at the promotion and protection of civil rights and ensuring true independence of the judiciary were priority areas requiring urgent attention.
The situation of an independent judiciary remained as it had been before the Paris Peace Agreements. The changes on paper were not reflected in reality and the problems facing the Cambodian judiciary were enormous. Problems included summary executions and administrative detention as well as the inability to prosecute offences committed by the police or military, and to summon police and military personnel as witnesses; executive control over the judiciary; and the lack of a system of fair trial and trained lawyers. There is no proper appeal system, and no Supreme Court with the power of judicial review or examining the validity and legality of administrative actions. Adding to this list of problems was the lack of both trained judges, without which an independent judiciary cannot exist, and of necessary laws and procedure.
The judicial independence and the Rule of Law are introduced the conceptual framework of an independent judiciary. The Rule of Law, the independence of the judiciary, the separation of powers, court systems and structures, and the respective roles of the judge, prosecutor and lawyer were presented. Another part the Law and Procedure went into legal provisions and demonstrated how they are implemented by all independent judiciary to protect human rights. Moreover, Comparative Law and Judicial Review examined the next step up the judicial ladder and further developed some of the conceptual issues. A particular focus was the judiciary’s function of judicial review of administrative actions. This part also provided a comparative overview of the primary differences between the common law and French legal models. These illustrated how the universal principles of judicial independence are not rhetoric; applied to all stages of the administration of justice, they are the concrete foundation of the Rule of Law and of immediate and practical relevance to Cambodia.
Discussing the role of the judiciary in a civil society, some states that the judicial power must not be submissive to the other two powers, the three must be separate from each other and have different functions. According to this, the constitution must clearly provide for an independent judiciary; judges themselves must have real competence in legal matters and must be courageous; judges must be well paid so that they have a good standard of living; judicial council must be created to administer, nominate, promote, control and defend judges; and the state must have sufficient laws on which judges can base their work.
While seeking justice in front of the courts, for both civil and criminal cases, defence lawyers are needed. Defenders will defend the interests of their clients, the accused, find in doing so assist in the judge’s task to seek justice for both parties in the lawsuit. The right to defense must be clearly stipulated the constitution, where it must provide that every person shall have the right to legal defense of his own choosing to protect his own rights and freedom, his honour, his property and his reputation in front of the court. Stressing their importance to the administration of justice in Cambodia, it was said that lawyers make war striving for justice.
Besides such limitations on the scope of the functions and powers of the judiciary, the functions of courts may be controlled by the National Assembly and the executive by direct monitoring. The Public Prosecutor has the overriding power over courts’ judgements, as the Prosecutor General must ensure that legal proceedings, judgements and the execution of judgements are conducted correctly and in accordance with the law. People’s assessors have the right to participate in court proceedings and during a hearing they have the same rights as judges.
In brief, the injustice and current issues in the Cambodian judicial system is a very complicate issue for the government to make a lot of reform in order to improve the system more efficiently and effectively. In my opinion, the reform on the judicial system needs a strong commitment from the government and other related institutions. The morality of the members of the judicial branch should be improved to make this institution be more trustful from the public.