E.  OBJECTIVES OF THE PAPER 

The objectives of the present paper are four-fold:

1. Outline the concepts to serve as foundation for the formulation of a “Legal and Judicial Reform Strategy for Cambodia”;

2. Propose a quadrupartite government - private sector - civil society - donor partnership strategy to adopt a full-fledged country-owned strategy and plan of action to be implemented over the next five years;

3. Sensitize key stakeholders to the need for a coordinate partnership framework for legal and judicial reform in Cambodia; and

4. Provide the basis for the proposed legal and judicial reform project currently under preparation by the Bank. 

F.  ORGANIZATION OF THE PAPER 

This paper is divided into 5 chapters and organized around five key areas of concern to legal and judicial reform, namely: the law making process, the process of publication of laws, the judicial process, training needs, and issues related to implementation. For each reform area, the chapter provides a general introductory assessment, current reform initiatives, key issues, and ongoing challenges for reform.

Chapter I serves as an introduction and provides a basic understanding of the historical context of the country. It sets the stage by providing lessons learned from past initiatives and provides a historical perspective of the formulation of the sector-wide legal and judicial reform strategy. The chapter also highlights the development concepts, defines the objectives of the paper as well as identifies the prerequisites for success of the strategy.

Chapter II looks at the lawmaking process. It starts with an analysis of the existing situation with regards to legislative process and identifies problems such as a lack of any coherent legislative reform program, the limited capacity to manage and implement the legislative reform agenda, and the absence of any coordination mechanism in the legislative reform process. The chapter provides an overview of past activities and concludes with a vision of what the lawmaking process should be, namely: the need for a coherent legislative reform program, the continuity of the lawmaking process as a continuous process, and the capacity building to ensure sustainability.

Chapter III deals with the publication of laws as a constitutional requirement, as business tools, as adjudication and enforcement tools. Past achievements and ongoing activities are highlighted and suggestions of concrete measures are raised such as regularizing the publication of the Khmer version of the Official Gazette and the encouragement of the private sector involvement in law dissemination efforts.

Chapter IV deals with the Judicial reform. It begins with an overview of the court system and its inherent problems such as untrained judges and their low salaries, dilapidated buildings, and inefficient support structure. Ongoing initiatives and activities of the sector are reviewed followed by a section dealing with reform measures such as defining criteria for appointment of judges, streamlining court procedures, improving case load management, publication of court decisions, and salaries increase.

Chapter V discusses the institutional arrangements required to implement the legal and judicial reform strategy and examines a few options to tackle the current limitations to the effective development and implementation of the strategy. 

G.  PREREQUISITES FOR SUCCESS

Designing and implementing an effective legal and judicial reform strategy for Cambodia will require meeting two conditions at the very minimum:

• Develop at the outset a new partnership framework among government, business, civil society, and development partners to drive the formulation and implementation of the strategy;

• Ensure that the strategy is deliberately supportive of Cambodia’s national economic development strategy.  This must include making sure that law and judicial reform promotes developments that have an immediate and deep positive impact on economic growth.

Like other sector strategies Cambodia’s legal and judicial reform strategy will become one of the building blocks of Cambodia’s national development strategy for the next five years and will be reflected in the forthcoming SEDP-II. 

CHAPTER II: LAWMAKING PROCESS

A.  EXISTING SITUATION WITH REGARDS TO LEGISLATIVE PROCESS

Under the Constitution of Cambodia, as amended in 1998, the National Assembly and the Senate hold the legislative powers in the country, though the National Assembly is the institution with primary legislative power under the Constitution. In practice, this is not the case. The power to initiate legislation in Cambodia rests jointly with members of the National Assembly, the Senate, and the Prime Minister. So far, the National Assembly and Senate have been playing a limited role in legislative drafting. Rather, its role in the legislative process has been to review and enact bills approved by the Government. The vast majority of draft legislation originates with the ministries and is forwarded to the National Assembly after approval by the Council of Ministers. 

In general, the successive stages of the legislative process leading to the promulgation of a law are as follow:                                                     

a.  Draft Legislations Originating from the Government

Traditionally the initial preparation of a draft law is done by a line ministry. Preliminary discussions of the draft are held within the concerned ministry itself with occasional consultations with a few relevant ministries or institutions on overlapping areas or areas of common concern. The draft is subsequently forwarded to the Council of Jurists, a consultative organ under the Office of the Council of Ministers, for review. The review is primarily accentuated on form rather than substance, i.e. check for conformity with the Constitution, coherence or no conflict with existent legislation, appropriateness of the format, clarity of the text, etc. Upon the completion of the review the draft is submitted to a full formal discussion at the inter-ministerial meeting under the hospices of the Office of the Council of Ministers. There, substantive issues and comments are raised by representatives of various ministries and government institutions concerned. Substantive amendments to the legal provisions or compromises to the form are made to the text on areas that the inter-ministerial representatives deem acceptable. Remaining pending issues are left for full debates of the Council of Ministers. The revised draft is then submitted to the Council of Ministers for examination and adoption. Provided there is a consensus or a compromise on the pending issues, the Council of Ministers adopted the draft legislation. 

The Government then submits the bill to the National Assembly accompanied by a "Statement of Purpose." The Permanent Committee of the National Assembly subsequently forwards it to a specialized commission for review. During that review, the commission usually requests for clarification from a representative of the Government who normally happens to be the representative of the line ministry tasked with the initial draft preparation. After such review, the commission presents its opinions to the Permanent Committee which in turn slates the bill at the plenary session of the National Assembly for debates and adoption.

The next step involves the review by the Senate of draft laws approved by the National Assembly. Senate review of a law can take no longer than one month, and only five days for the one marked as urgent. Laws may be promul­gated if the Senate either approves them or offers no opinion. The Senate may also return a law to the National Assembly for reconsideration in its entirety or with regard to particular provisions, or it may reject a law. The National Assembly retains the ultimate power to enact laws during a second consideration if approved by a simple majority in an open vote.

The enacted law is subsequently promulgated by the King or the Head of State and goes into effect 10 days after its promulgation in Phnom Penh and 20 days after its promulgation nationwide. Laws that are stipulated as urgent take effect immediately nationwide after promulgation. All laws promulgated are constitutionally required to be published in the Official Gazette (“Journal officiel” or “Reach Kech”) and circulated nationwide. 

b.  Proposed Laws from the National Assembly and the Senate

The Senate, like the National Assembly and the Prime Minister, may initiate legislation. They may propose any amendments to the laws provided they are not aimed at reducing public revenue or increasing the burden on the people. Proposed laws, initiated by deputies are in a written format, drafted into separated articles, and submitted along with a "Statement of Purpose". The drafting legislators can present their proposals to the reviewing commission which in turn can request the National Assembly to either deny them, consider them, or to treat them as urgent.

The drafting legislators can withdraw their proposed laws at any time even after the parliamentary debates have commenced. However, other deputies can request the National Assembly to reintroduce them back for discussion.

Laws adopted by both upper and lower houses which run counter to the principles of preserving national independence, sovereignty, territorial integrity, and affect the political unity or the administration of the nation will be annulled. The Constitutional Council is the only organ which can decide upon this annulment. 

c.  Review of the Constitutionality of Legislation

The Law on the Organization and Functioning of the Constitutional Council was enacted and promulgated on April 8, 1998. The body is not a tribunal that hears cases but rather, it is an institution that decides only the constitutionality of laws. Beside ensuring the respect of the Constitution, it is responsible for reviewing and ruling on disputes arising from elections, such as those involving rights of voters, electoral rights of candidates and political parties, and election fraud and irregularities.                                               
Prior to their promulgation, organic laws, internal rules of the National Assembly and the Senate, and their amendments are compulsorily submitted to the Council for review of their conformity with the Constitution. Every citizen is by right entitled to challenge the unconstitutionality of a law by submitting its claim to the Council through the National Assembly.                                                 

B.  PROBLEMS CONFRONTING THE LAW MAKING PROCESS

While the legislative process seems to be quite straightforward Cambodia suffers from a lack of any coherent legislative reform program, the limited capacity to manage and implement the legislative reform agenda, and the total absence of any coordination mechanism in the legislative reform process.

a. Limited Capacity to Manage and Implement Legislative Reform Agenda:

To date, the lawmaking process has been anything but systematic. Lawmaking is a long, protracted and sometimes confusing process, which does not facilitate the adoption of laws. Much of the inherent problems in the Cambodian legal system today stem from the historical "melting pot" of legal influences of the French's colonial past, the basic structure, laws, processes, and attitudes of Cambodia's socialist legal system of the 1980s, and the recent anglo-saxon influences in the areas of economic and commercial laws of the late 1990s. This conflict begins since the initial drafting stage of the legislation. Depending on the particular circumstances, limited or extensive assistance may be provided by a donor under the form of foreign legal technical assistance. The shape and substance of the original draft usually reflects the tendency or the influence of the foreign legal drafters. Because of the limited capacity of the Cambodian counterparts in the ministries and their marginal involvement in the drafting process, the draft text is not sufficiently reflective or compatible with the Cambodian legal system as it exists in practice. Inaccurate translation of the draft law into Khmer and inadequate interaction between the foreign expert and Cambodian counterpart compound the extent of   misinterpretation and legal divergence.                           

On the legislative branch, both the National Assembly and the Senate are not better equipped than the executive branch to deal with the complexity of modern legislation which tends to be more and more complex and technical. Most of their members lack the necessary expertise and skills compared to their government counterparts, many of whom also have fairly limited expertise. Their inability to deal with the intricacies of draft legislation is a major factor responsible for delays in the lawmaking process.

b.  Incomplete Legal Framework:

The legal framework itself is largely incomplete and flawed with problems. There is a continuing disinclination, or unwillingness, to draft laws that are comprehensive and enforceable in their own right. Typically draft laws sent to the National Assembly for consideration contain only general statements of purpose, principles and structure of any new institutions created. Crucial details are either insufficient or lacking. Provisions on the legal meaning of key concepts, procedures, due process, scope of authority for new institutions created, legal standards for applying the law, delegations of authority for enacting regulations and enforcement are left for later sub-decrees which are enacted by the Council of Ministers and not the National Assembly. It becomes even more problematic when lower level implementing regulations such as Prakas are issued by the line ministries themselves unchecked by a clear, comprehensive law or a functioning judiciary that can strike down improper government actions or regulations and without regard for the hierarchy of laws and other legal instruments. Moreover the few laws that have been adopted suffer from the lack of the necessary implementing decrees which may take years before they are adopted.

c.  Absence of Coordination Mechanism:

Lawmaking process is a concerted effort involving many different ministries, agencies and even branches of government. Sponsoring ministries are responsible for the preparation of individual pieces of draft legislation. The Council of Jurists is responsible for the review of all pieces of draft legislation prior to their adoption by the Council of Ministers and their submission to the National Assembly. Besides the National Assembly, which adopts laws, and the Senate that reviews them prior to their adoption, the King also has a role to play in the process of promulgation of laws adopted by the Parliament. Surprisingly, there is no mechanism to ensure coordination in the lawmaking process not just within the executive branch but also between the executive and the legislature.

On the donor side, several donors have stepped in to support the preparation of major pieces of legislation by the respective ministries concerned but there has been no agreed program or strategy to guide their process of preparation nor has there been much consultations amongst either donors or the concerned ministries themselves in the process.

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