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Steering
Committee for Legal and Judicial Reform
Royal Government of Cambodia
LEGAL
AND JUDICIAL REFORM STRATEGY
FOR CAMBODIA
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Prepared
and Presented by
Sok Siphana, JD
Secretary of State for Commerce
Member, Steering Committee for Legal and Judicial Reform
to
Dr. Heng Vong Bunchhat
Chairman, Steering Committee for Legal and Judicial Reform
Phnom
Penh, March 22, 2001
"LEGAL
AND JUDICIAL REFORM STRATEGY FOR CAMBODIA"
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CAPTIONS
A.
Background
B. Lessons learned
C. Formulation of a sector-wide legal and judicial reform strategy
D.
Development concepts
E.
Objective of the paper
F.
Organization of the paper
G.
Prerequisites for success
CHAPTER
II LAWMAKING PROCESS
A.
Existing situation with regards to legislative process
B. Problems confronting the law making process
C.
Past initiatives
D.
Vision for the future
CHAPTER
III. PUBLICATION OF LAWS
A.
Importance or publication of laws
B.
Past achievements and ongoing activities
C.
Vision for the future
CHAPTER
IV. JUDICIAL REFORM
A.
Overview of the court system
B.
Ongoing support and activities
C.
Vision for the future
CHAPTER
IV. CAPACITY BUILDING
A.
Existing situation
B.
Past capacity building activities
C.
Capacity building for the bar in and era of globalization
D. Vision
of the future
CHAPTER V:
IMPLEMENTATION OF THE STRATEGY
Annex
I national legislative programme
1. Laws
that improve judiciary and law making
2.
Legislation to support private sector development
A.
BACKGROUND
When the new Royal Government of Cambodia
(Government) was established in 1993, Cambodian society was lacking in the
basic institutions and structures upon which the safeguarding of fundamental
human rights and the functioning a free market economy depends: an
independent judiciary, a body of legal professionals, an effective
non-political administration, a free press, a broadly educated professional
class, and indigenous human rights and other non-governmental organizations
able and willing to promote and defend popular interests. While the
constitutional framework set the stage, the Government felt that the success
of enforcing or implementing constitutional safeguards and provisions
related to individual rights, freedoms and entitlement, protection of
private properties rested with the rebuilding or strengthening of many basic
institutions of government and of the emerging civil society.
The Government has confirmed its
commitment to "achieve a fair, just and peaceful society”, and
through the Constitution and numerous policy statements, has made its reform
commitment clear. Within a short period of
less than seven years and within the framework of a new liberal multi-party
democracy and with the support of its development partners, the people of
Cambodia and the Government have come a long way toward achieving many
accomplishments which not long time ago one would not even dream possible.
Nonetheless, at the eve of the new
millennium, Cambodia found itself further entrenched in an era of economic
integration with its economy becoming more and more interdependent and
interconnected with those of the rest of the world. With the sharp
acceleration of the globalization process, as reflected by fundamental
forces and global trends
much beyond
the control of Cambodia,
it became imperative that Cambodia accelerate its reforms if it intended to
enjoy the benefits of globalization or at least to avoid being marginalized
by the same process. Given its small
domestic market and history of instability, Cambodia must show more resolve
and commitment, be more successful, more progressive, and more demanding in
reforms to overcome its poor international image and compete for investment.
Reforms aimed at achieving "a fair, just and peaceful society"
were not enough, they must be responsive and supportive of market-based
economic policies and fully supportive of and coherent with national
development objectives. They must accept and recognize the importance of the
private sector in achieving rapid economic growth and the need of such
growth as the basic requirement for an effective attack on poverty.
B. LESSONS
LEARNED
Past assessments have shown that although
many donors have been actively involved in legal and judicial reforms in
Cambodia, there is a perception that the considerable resources which have
been so far applied in the process have not been used as effectively as they
might have been. One factor which has been cited for the lack of
effectiveness of legal reform is the absence of a clearly defined strategy
for legal reform and, hence, a perceived lack of coordination both amongst
donors and amongst legal reform initiatives. There is a perception that, in
some cases, donors have supported similar or substantially similar reform
initiatives but without coordination with one another, whilst, in others,
the initiatives that have been so supported have actually been in conflict
with one another. In both situations the absence of a clearly defined reform
strategy has resulted in a less-than-optimal use of limited resources
available for legal reform.
C.
FORMULATION OF A SECTOR-WIDE LEGAL AND JUDICIAL REFORM STRATEGY
While Cambodia has already numerous
elements of a legal and judicial reform strategy it still lacks a
full-fledged strategy that is integrated in the overall country development
strategy. In order to maximize the
benefits of any future legal reform program the World Bank current country
assistance strategy (CAS) for Cambodia urges the Government to adopt a
sector-wide or partnership approach to legal and judicial reform,
emphasizing close coordination amongst donors, effective use of limited
resources and a consensual approach to the achievement of strategic goals.
The Government also recognizes the need to adopt and implement a credible
and comprehensive legal and judicial reform strategy, with which every new
legal reform initiative needs to comply.
The process of preparation of the legal
and judicial reform strategy paper was launched in early 2000 with the
commissioning of a legal and judicial diagnostic study under the Technical
Assistance Project. The outcome of the diagnostic study which was intended
to be used as one of the building blocks for the preparation of the
full-fledged legal and judicial reform strategy paper was widely reviewed by
all the stakeholders concerned at a workshop held in April 2000. Further
discussions on the findings and recommendations of the diagnostic study were
held involving both the legal community and donors. In consultation with the
Bank and other donors, the Government has engaged a local consultant to
prepare the first draft of such a strategy for comments by the Bank and
other donors prior to its review and adoption by the Government. The first
draft of the strategy paper was produced and circulated for comments in
early September 2000. Another consultant was also engaged by the Government
to prepare a draft of a legislative program which was considered as one of
the crucial components of the strategy paper. Selected findings from the
ADB’s exhaustive study on “Enhancing Governance for Sustainable
Development (CDRI, April 2000) were similarly incorporated in the paper.
In the course of the Bank supervision
mission in February 2001, it has been agreed that urgent steps needed to be
taken by the Government to have the draft strategy paper finalized and
presented for adoption by the Government. In
particular, it has been agreed that the draft will be prepared on behalf of
the steering committee by Messrs. Sok Siphana and Heng Vong Bunchhat, both
of whom are members of the committee. A first draft will be prepared by the
former and submitted, not later than end of February 2001, to the latter for
review and comments. Subject to the committee's final endorsement, the final
draft ought to be ready for submission to the Government, not later than
March 2001, for its approval. The strategy paper will serve as one of the
building blocks for the proposed legal and judicial reform project which is
currently under preparation.
D.
DEVELOPMENT CONCEPTS
The paper proposes 3 key concepts to
serve as foundation for the formulation of a “Legal and Judicial Reform Strategy
for Cambodia.” The concepts are:
(1) making
legal and judicial reform one of the country's "competitive
advantages" in order to succeed in the long-term competition for
investment and assistance;
(2) emphasizing
the partnership between the public sector and civil society as a critical
element in promoting legal and judicial reform;
(3) focusing
strongly on the delivery of capacity-building support to state and non state
institutions to ensure the appreciation of the rights, and the respect of
the legal obligations incurred as a
result of Cambodia's admission to regional and world organizations and to
attain the full realization of the development of Cambodia in the new
context of a globalized economy.
1
Fundamental global trends can be summarized as (i) global interdependence;
(ii) protectionism and growing economic blocs; (iii) Tran nationalization of
multinational corporations (MNCs); (iv) rapid technological advances; and
(v) growth of environmental concerns.
2
Ryrie Williams, First World, Third World, Foreword, Macmillan Press, London,
1999
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