CHAPTER III. PUBLICATION OF LAWS

A.  IMPORTANCE OF PUBLICATION OF LAWS:

a.  Publication of Laws as a Constitutional Requirement:

The rule of law presupposes not just the existence of a set of rules but also that they should be known in advance so as to facilitate the proper application of the law by enforcement agencies, tribunals, and other interested parties. However, it is not enough to have in place an adequate body of rules; equally important is the need to publish those rules and bring them to the knowledge and attention of the population. Through its Constitution, Cambodia has fully adhered to this basic principle. Article 93 of its Constitution provides in effect that laws, which have been promulgated by the King are to be published in the Official Gazette and brought to the knowledge and attention of the population. Had this not been the case, one of the fundamental principles of every legal system would have been devoid of meaning: the principle that ignorance of the law is not a defense presupposes that laws are regularly published and brought to the knowledge and attention of the population.          

b.  Publication of Laws as Business Tools:

Access to information is vital for efficient planning and implementation of business activities in a competitive market economy. Information about laws and regulations is particularly important because they set "the rules of the game" for all players in a market economy. It is extremely costly if each company must visit all ministries and authorities to identify the laws and regulations related to its business. The burden of gathering information is prohibitively high for poor people trying to set up and sustain new small businesses. This only forces small enterprises into the informal economy. Thus, transparency in laws and regulations greatly reduces transaction costs for business, provides a level playing field for all players including small businesses, and facilitates private sector development.                                                                         

c.  Publication of laws as tools to build confidence:

Publication of laws not only serves to enhance knowledge of the law. It also helps to build confidence in the system amongst investors and the international community in general. Interviews with business groups made clear that Cambodia's public sector has paid insufficient attention to improving transparency in laws and regulations. Companies have encountered major difficulties in acquiring information about laws and regulations. The difficulty appears to be particularly severe with regard to the numerous administrative orders (sub-decrees, decisions, circulars) issued by the Government. New administrative orders are typically issued without prior notice to affected persons or the public.       

d.  Publication of Laws as Adjudication and Enforcement Tools:  

Publication of laws also facilitates the proper application of the law by tribunals, enforcement agencies and other interested parties. It also serves to bring out contradictions and inconsistencies, which would otherwise not be apparent amongst different legal and regulatory instruments.

e.  Transparency in laws and regulations under WTO:

Upon its accession to the WTO, Cambodia will be required to fully apply the transparency requirements prescribed in Article X of the GATT 1994, Article III of the GATS and other articles regarding transparency on the WTO Agreements.

B.  PAST ACHIEVEMENTS AND ONGOING ACTIVITIES:

Notwithstanding the clear merits of publication and an explicit constitutional requirement to that effect, the official journal is not published on a regular basis in Cambodia. Only a small percentage of Cambodian laws have been translated into English, and few, if any, “official” translations of these laws exist. Translations often fail consistently to identify a law’s position in the hierarchy of laws. Translations not undertaken by legal scholars are often too imprecise or inaccurate to lend themselves to strict legal analysis.             

The genesis of the publication of the English version of Cambodian laws dated back to the year 1993 when the initial compilation and translation of Cambodian laws took place at the initiative of a few expatriate legal advisors working with the Government. The First and Second Volumes of the Compendium were published by the Council for the Development of Cambodia under a funding from UNDP. The works were converted into a CD Rom legal database under another UNDP project and subsequently the Legal Reform Unit (LRU) under the Council of Ministers uploaded them onto their website. Under the Technical Assistance Project, the Bank has supported the regular publication of Cambodia's laws and regulations in three languages (Khmer, English and French). These laws and regulations, which are produced in a monthly bulletin, are also accessible through the internet and in the form of CD software. These initiatives are being expanded to cover on a selective basis courts judgments and decisions which may be of interest.

The publication of the Third Volume of the Compendium was undertaken by the CLRDC with a seed funding from SEAFILD/CIDA and built partly on the works of the LRU. For those pieces the CLRDC provided the value added in terms of reediting the translated version and fine tuning them into a more acceptable professional translations. Weekly update of legislation development was undertaken by the law firm of DFDL which also offers subscription through online services.                                                           

In addition to these publications, the private sector strongly suggests that the Government issue an official public notification before all laws and regulations come into effect. Notice to the public that a new law or regulation will come into effect on a given date would provide information to both institutions concerned and the public that will allow them to better prepare for implementation of new legislation. This is especially critical for the private sector which must adjust its business planning and operations to new rules and requirements. The recent publication in local newspapers of a new prakas³ by the MoC is an excellent example of one ministry's attempt to provide public notice on new rules that will affect the private sector as well as the general public.

C.  VISION FOR THE FUTURE:

a.  Government obligation to publish laws:

There is clearly a need for the Government not only to strengthen but also to take urgent steps to revive the Official Gazette as a constitutionally required publication. The Official Gazette should be published regularly and without interruption in adequate quantity to satisfy the demand both in urban and provincial areas. Because the publication is done in the National language and the organizational structure is already in place, the efforts to revive it should be minimal. Subscription services should be promoted and market distribution networks developed in order to ensure a sustainable stream of income from the sale of these publications.                                                                             

Whilst the publication of the official journal is clearly a governmental function mandated under the Constitution, the same is not true of ancillary publications such as a monthly bulletin of laws and regulations produced in three languages. The publications are produced in three languages and are costly to produce. Accordingly, they have been issued in limited quantities, which are insufficient to satisfy the huge demand that they have generated. As the Technical Assistance Project draws to a close, there are questions being raised about the sustainability of the monthly bulletin of laws and regulations and other publications produced by the Legal Reform Unit (LRU) of the Council of Ministers, which the Bank has supported under the project.

Parallely, notwithstanding the unofficial nature of publications of the private sector and civil society, the Government should encourage these initiatives and collaborate with them to further develop this parallel market for foreign language publications. If they are better suited than a Government agency to pursue this activity, it ought to be encouraged to do so.                                                                                                                     

b.  Systematic Approach to the Publication Process:

Article 93 of its Constitution provides in effect that laws, which have been promulgated by the King are to be published in the Official Gazette and brought to the knowledge and attention of the population. As such laws and regulations are required to be published as a matter of law before they enter into force. All the stakeholders, whether they be the Government, the private sector, the civil society, or the public, can look into these publications both as a source of good laws but also a source of constitutional protection against the abuses of overzealous ill-intent officials. Any law or regulation not found published will not have the effect of being a good law and therefore invalid and unenforceable in the court of law.

Because of the official nature of the publication, a systematic approach to the publication process needs to be revisited. A better coordination between all institutions concerned needs to be forged, from the National Assembly and the Senate to the Office of the Council of Ministers to the line ministries and government agencies. A uniform National computer font should be adopted and perhaps, for ease and speed of communication, an electronic network system installed connecting all institutions concerned.                

c.  Article 158 of the Constitution:

Analysis of Cambodian law is difficult for several reasons one of which goes to the heart of the issue of ascertaining what laws are in effect. Article 158 of the Constitution provides that laws and regulations which safeguard state property, as well as the rights and property of private individuals, and are consistent with the national interest, continue to be in force unless and until they are amended or repealed, except to the extent that they are contrary to the spirit of the Constitution. Although Article 158 of the Constitution has been diversely interpreted, there has been to date no legal challenge as to the constitutionality of any law predating the Constitution. While its meaning appears on the face of it to be quite clear, there are sharp disagreements between those who would prefer to limit its effect to those laws and regulations which were actually in force just before the entry into force of the 1993 Constitution, and those who seek to use its provisions to revive laws which had been in force prior to the Khmer Rouge regime but have in effect been repealed by the Khmer Rouge.                                                                                           

Whether one adopts one or the other of the two interpretations will inevitably have a direct impact on the legal validity of laws in force prior to the 1993 Constitution and, hence, on the content and scope of publication. It is evident that an interpretation of Article 158 which seeks to restrict its scope to cover only those laws which were still in effect at the time of the adoption of the 1993 Constitution is of more limited value than one which is capable of reactivating laws which predate the Khmer Rouge regime. To suggest, however, that Article 158 can be used to rehabilitate not only those laws, which were in force at the time of entry into force of the 1993 Constitution, but also those, which had been repealed by a previous regime, is to strain the ordinary meaning of Article 158. It is an expansive interpretation of the provision, which is unlikely to be widely supported.

However there seems to be emerging a consensus on a more pragmatic approach.  Instead of engaging in a fractious and potentially divisive debate on the scope and impact of Article 158, it may be best for the Government, in consultation with the National Assembly and the Senate, to determine whether and to what extent there may be laws which had been previously in force and which it may be desirable or appropriate to re-enact with or without modifications. Some such laws may have the merit of having actually been in force and on the statute books in Cambodia, even if, by reason of a historical accident or as a matter of legal interpretation, they are now deemed repealed or inapplicable. It is open to the Government, should it so decide, to propose the formal re-enactment of such laws by the National Assembly on an expedited basis to address major gaps in the country's legislation which currently exist and are likely to persist for years to come pending adoption of new laws.                                           

The civil code is a case in point. There is no civil code currently in force, and it will be several years before the current draft is completed by the large team of Japanese consultants responsible for its preparation, and probably several more before it is eventually adopted. Meanwhile there are large gaps in the law, including the law relating to succession, which have become a source of extreme embarrassment for judges and magistrates. It is arguable that, pending the adoption of the new civil code, it may be best to revive the previously existing civil code and re-enact it with modifications, as needed, to serve its purpose for a limited duration pending a full debate on, and the adoption of, a new code.                                                                                             

³ Prakas No. 329/PRK/MoC of July 29, 1999 on Measures Against Food Products Devoid of Appropriate Packaging Labels.

CHAPTER IV.  JUDICIAL REFORM

A.  OVERVIEW OF THE COURT SYSTEM:

The judiciary is one of the main pillars of any legal system based on the rule of law. The presence of an independent, capable, and uncorrupted judiciary is the foundation of the Rule of Law and underpins the development of a market economy. In Cambodia, however, this is not the case. The judiciary is not equipped to assume its rightful role in a rule-based environment. Amongst the issues which are specific to the Cambodian judiciary are: judges' intellectual capacity, salaries, discipline, appointments and promotions, court organization, judicial procedures and infrastructure needs.

a.  Human Resources

Cambodia's recent history has taken its toll on the courts. Cambodia's Judiciary is seriously lacking in human resources. The shortage of lawyers meant that most judges appointed in the immediate aftermath of the Khmer Rouge regime were former teachers. Of the 120 judges who belong to the judiciary, only a handful of them have any proper legal qualifications to speak of. Prosecutors on balance possess even less legal education. Only 22 percent of the prosecutors have had some formal legal education, with only 9 percent holding a full law degree.⁴ The Judiciary's weak human resources are especially striking with regard to commercial cases. The level of experience among judges with commercial and financial law education is lower compared to criminal and other civil cases. Judges regularly ask the Ministry of Justice for opinions, suggestions, or legal interpretations regarding cases. To date, training of judges has been largely small, infrequent, and unsystematic.

The Judiciary also suffers from a shortage in financial resources. The budget line for the courts falls under the MoJ. The MoJ itself received only 0.3 percent of total national budget in 2000. By implication, the budget for the Judiciary represents a much lower amount. The salary scale for judges, prosecutors, and court officials is comparable to that of other civil servants, averaging around $24 per month. Considering that low average monthly salary, it is not hard to imagine that corruption may be a significant factor in arriving at court decisions.

Another factor is political influence. Under the Constitution, the Supreme Council of the Magistracy or Conseil Supérieur de la Magistrature (CSM) is mandated to advise the King on measures to safeguard the independence of the judiciary as well as issues of appointments and promotions. The CSM is also responsible for maintaining discipline amongst the judicial staff. In its present form, however, the CSM is perceived as being too dependent on the executive and has been largely ineffective in enforcing discipline amongst judges and magistrates.                                                          
Although the Constitution says that rules governing judges, prosecutors, and the functioning of the judiciary shall be defined in specific laws, no such laws have been enacted in the seven years since the establishment of the Constitution. In the absence of a law governing appointments and promotions in the judiciary (statut des magistrats), there are no known criteria for their appointments and promotions. Appointments are often made on the basis of considerations, which have little to do with either the qualifications or the merits of the individuals.                                                              

b.  Infrastructure Needs

Quite apart from issues pertaining to appointments and promotions, the judiciary is also faced with other challenges of a more logistical nature. The Municipal Court of Phnom Penh, as other provincial courts, suffers from physical disrepair and the lack of physical facilities and other amenities. There is insufficient office space to house judges and their staff. Office equipment and materials are inadequate or in short supply.

c.  Judicial Procedures

Serious gaps in the judicial procedures - for example, the lack of modern rules of criminal and civil procedures - allow this situation to continue. By all accounts, the existing judicial process is painfully slow. There is no law on the enforcement of judgments issued by the courts. The result is a system in which individuals are highly vulnerable to manipulation, misinformation, and procedural (and sometimes physical) abuse. This complicates enforcement and has at times led to violence. Recognizing this problem, the MoJ issued in 1997 an order in which the ministry "decides to give prosecutors the competence/right to lead in the implementation of court decisions for all levels of courts at the request of a party." The order remains in force until a follow-up law is enacted or a sub-decree is issued. The adoption of new legislation, whether it is the civil or civil procedure code, the criminal or criminal procedure code, or even new commercial or land tenure legislation, brings immediate benefits to the judiciary in terms of facilitating the application and enforcement of laws.                                      

The appeal process is more streamlined, though still problematic. The Appeal Court in Phnom Penh handles all appeals nationwide. This is a significant barrier to appeal for cases tried in distant provincial courts. The problem is then compounded by the practice of the Appeal Court to, in effect, retry all cases. Evidence is presented and witnesses, often only the accused, are questioned. In a judiciary that lacks sufficient human resources, conducting a second full trial at the Appeal Court places a large burden on the court system.                                                

d.  Court Organization

The organizational structure of most tribunals does not allow for specialization or the formation of specialized units or chambers. Training opportunities are few and far between. Not surprisingly, the backlog of pending cases before the courts has steadily increased.

B.  ONGOING SUPPORT AND ACTIVITIES:

As one of the essential pillars of a rule-based legal and judicial environment, the judiciary stands to benefit from each and every initiative that serves to strengthen the rule of law. There are a number of important judicial reforms being pursued to varying degrees by the Government with the support of various donors.

a.  Criminal Justice Assistance Project (CCJAP)

The CCJAP is a three-year program of support funded by the Australian Government, working within the Ministries of Interior and Justice. Members of the project team work direct with the Judicial Police and Prisons Department within the Ministry of Interior and with the Courts. The goal of the Project is to improve operational, managerial, institutional and human rights conditions within the justice system of Cambodia. The purpose of the project is to assist the Government develop an integrated approach to improvements in the efficiency and effectiveness of the criminal justice system, thereby improving the human rights of citizens who become involved in the process. Implementation is limited however to Phnom Penh and the provinces of Kompong Chhnang, Kompong Cham, Kompong Speu, Kampot and Prey Sar Prison.

b.  Council on Judicial Reform (CJR)

In its efforts to attract foreign direct investment and to enhance the effectiveness, reliability, and respect of the judiciary system, and upon a proposal of the Government the King decreed Reach Kret No. NS/RKM/0400/07 establishing the long awaited Council for Judiciary Reform (CJR). The CJR's general mission is to promote, provide suggestions, and control the policies and programs for judicial reform. Its duties include: (i) implementing policies of the Supreme State Council on Reform; (ii) disseminating directions to courts on judicial reform programs and the courts' role in them; (iii) proposing drafts of legal documents and measures on judicial reform to the Supreme State Council on Reform; (iv) controlling implementation of judicial reform programs by each court; (v) reporting to the Supreme State Council on Reform on results of implementation; and (vi) coordinating to find funds for reforms. Like any other judiciary body created in the past, the body remained up to now quite passive.           

c.  Supreme Council of Magistracy

Referring to articles 113 and 115 of the Constitution, the SCM is to be established in order to guarantee the independence of the judiciary, maintain discipline for judges, and to assure the good functioning of the courts. The Law on the Organization and Functioning of the Supreme Council of Magistracy was enacted in late 1994 by the National Assembly and paved the way for the establishment of the Council under the high patronage of His Majesty King Norodom Sihanouk. It might be noted that under a law enacted prior to the Constitution, MOJ held the power to recommend appointments, transfers, and suspensions of all judges and prosecutors, except for the President of the Supreme Court and the General Prosecutor of the Supreme Court whom the National Assembly selected.

The SCM can raise its recommendation to His Majesty the King on the appointments, transfers, disruptions, suspensions or removals from actual service for any judges and prosecutors as well as provide recommendations for their promotions. The SCM can also act as a disciplinary council for matter involving disciplinary actions to be taken against the judges and prosecutors, under the chairmanship of the Chief Justice of the Supreme Court or the General Prosecutor to the Supreme Court, depending on whether such disciplinary actions involved judges or prosecutors.

d.  The Constitutional Council

The Law on the Organization and Functioning of the Constitutional Council was enacted and promulgated on April 8, 1998⁵ during the run-up to national elections for the National Assembly. The body is not a tribunal that hears cases but rather, it is an institution that holds the constitutional duty to safeguard respect for the Constitution by interpreting the Constitution and all laws passed by the National Assembly and reviewed by the Senate (including internal rules of both legislative bodies and all "organic laws"). The King, the President of the National Assembly, the Prime Minister or one tenth of members of the National Assembly may submit to the Council all other laws adopted by the National Assembly before their promulgation. The Council consists of nine members, holding staggered, nine-year terms appointed by the King, the Supreme Council of Magistracy, and the National Assembly respectively.

e.  Internal Reforms at the Ministry of Justice

The MoJ plays an important role in administering justice for everyone before the laws. It has also undertaken internal reforms to strengthen its role in the legal system. Under its new organizational structure the Ministry is responsible for, inter alia:⁶ -organizing and monitoring the administrative processes of tribunals; - ensuring the functioning of the courts and prosecutors offices and preparing laws governing these institutions; - educating and disseminating laws relating to judicial affairs; - ensuring proper application of all courts orders and judgments and prosecutors orders; - following up the execution of judgments, in particular, inspection of detention centers and prisons for the purpose of law enforcement; - forming, managing and issuing extracts of judgments; and  - accepting, preparing and administering amnesties or pardons as determined by law.           

Much of the intended legal reforms related to the judiciary are described in the Workplan for the Activities of the Ministry of Justice. The primary objective of the Workplan is to reform the judicial system and the courts in order to strengthen its independence and render justice. Other objectives include creating new laws, training ministry officials and judicial personnel, and strengthening the morality and conscience of the entire system. Specific missions identified in the Workplan include work on drafting of key laws and improvements in dissemination of laws, recording and execution of judgments, infrastructure, and human resources.   

f.  Attacks on Court Corruption

Reportedly, a total of 195 cases since 1998 are being examined for possible corruption by court officials. The Minister of Justice suspended both the Chief Judge and Chief Prosecutor of the Phnom Penh Municipal Court pending completion of the MoJ's investigation and subsequently, the SCM authorized the permanent removal from their court functions. The Minister also instructed the Chief Judge to forward the files of cases of suspected corruption to the Ministry. Separately, the SCM has received complaints directly from parties in cases of alleged judicial misconduct by 28 judges and prosecutors in 12 different provinces. Recently the police also organized a "sting" operation to catch a Phnom Penh Municipal judge soliciting bribes. The Minister of Justice recently referred some cases of possible judicial misconduct to the SCM for review. The Government must be commended for such actions.         

g.  Amendment of Article 51 of the Law on Civil Servants

One critical element in the operation of Cambodia's judicial system today is the issue of impunity. Until this year, thanks to Article 51 of the Law on Civil Servants which required that permission to arrest a civil servant be obtained from supervisors prior to arrest, government officials, including all civil servants, police, and the military, enjoyed an effective immunity from criminal prosecution. Permission to arrest and prosecute was rarely given, and only in exceptional cases that had already received substantial public attention.

On 18 September 1999, the King promulgated an amendment to Article 51 of the Law on Civil Servants. Instead of requiring prior approval for the arrest of an official, the amendment requires department heads to be notified within three days of charges being filed against an employee in their department. If a civil servant is arrested or detained, the judge or prosecutor must immediately notify the head of the institution concerned. While Cambodia's culture of impunity stems not only from provisions like Article 51 but from a larger inability to prosecute individuals with power, position, or status, the amendment to Article 51 facilitates, in principle, prosecution of officials for wrongdoing and should therefore be regarded as a small but positive step in reform.                           

C. VISION FOR THE FUTURE:

a. Objectives of the Judiciary Reform

The Government recognizes that judicial reforms and the development of an independent judiciary are not events, but rather long-term processes. In order to enhance the effectiveness, reliability, and respect of the Judiciary, the Government intends to focus its actions on three closely related long-term objectives: a Judiciary independent from the Executive and Legislative branches of the State; a Judiciary readily accessible by all citizens; and, competent personnel. The Government has adopted the aforesaid objectives in the National Programme to Rehabilitate and Develop Cambodia (NPRD), the Socio-Economic Development Plan, 1996-2000 (SEDP I) and in many other policy documents.                  

b. Judicial Independence as a Constitutional Mandate

The Constitution of Cambodia defines a system of governance based upon the separation of powers of the Legislative, Executive, and the Judicial branches. The judiciary is explicitly established as an independent branch of government. Article 128 states "the judicial power shall be an independent power." The Constitution reiterates this idea by reaffirming that judicial power, defined broadly to cover all lawsuits including administrative cases, shall not be granted to the legislative or executive branches. The authority of the judiciary rests exclusively with the Supreme Court and lower courts. To be precise, only judges have the right to adjudicate. The Constitution also protects the judiciary from interference by other branches of government expressly prohibiting the dismissal of judges.

The Constitution mandates that the King is the guarantor of the independence of the judiciary with the assistance of the SCM. The Constitution identifies four distinct components of the judiciary: (1) the Constitutional Council; (2) the SCM; (3) the courts; and (4) the prosecutors.

From a governance point of view, an independent judiciary is vital to a working system of "checks and balances" among government branches. If the Judiciary is susceptible to pressures from the other branches of power, the Legislature and the Executive are left unchecked, and are unlikely to be accountable to people. The public loses trust in the judiciary, creating incentives to resolve conflicts in other ways. The Rule of Law will erode. The development of a market economy will remain shallow and superficial. Transformation from a socialist to a modern market economy will be stalled as a result. 

c.  Past Interference in the Judiciary

Interferences from other branches of power were commonly cited as the most serious problems plaguing the Judiciary in Cambodia. First, the SCM Law on its face appears inconsistent with both the letter and spirit of the Constitution. Article 6 of the SCM Law says that the Minister of Justice shall issue a prakas setting out the procedures and organization of the election of judges to the SCM. Article 7 makes the Minister the primary convener of SCM meetings. This prominent role given to the Minister of Justice in the constitutional body charged with overseeing the Judiciary would appear to violate the separation of powers provisions of the Constitution. Moreover, the annual budgets of the SCM and courts are allocated from the budget of the Ministry of Justice which make them  completely dependent upon the Ministry.                   

While the Minister of Justice arguably has the power to investigate judicial misconduct, he does not have the power to order the suspension of the Chief Judge and Chief Prosecutor of the Phnom Penh Municipal Court. Article 11 of the SCM Law clearly states that only the King, based on recommendations of the SCM, has the power to decide "disruptions of actual service [and] suspensions of job" for judges and prosecutors.

Some active judges work within the Ministry of Justice after their removed from their posts due to complaints of serious misconduct. Their presence within an Executive branch institution seems incompatible with a separation of powers, and represents an example of the blurring of roles in Cambodia's judiciary system.

Prosecutors also interfere with the independence of judges. In particular, the closeness of prosecutors to judges during both the investigation and trial is a serious issue. Judicial reforms will need to create greater separation between prosecutors and judges by limiting communications and contact.                                            

Likewise, the Legislature seems unable to avoid interference with the judiciary's independence. The Senate, for example, should not call judges (or prosecutors under Cambodian law) in for questioning. The Judiciary should not answer to either the Executive or Legislative branches of government for its actions. The SCM was formed to serve that exact purpose.

In general, the Government involves itself in the judiciary in more and less direct ways. Interference with the Judiciary has also been explicitly incorporated into the organic laws of key institutions in Cambodia such as the SCM Law, draft Law on Magistrates, and the Royal Decree establishing the Council on Judicial Reform.   

d. Judicial Reform Programme

To achieve the above objectives, a reform programme was articulated along five thrusts of activities:

  1. Institutional framework
  2. Legal framework
  3. Human resource development
  4. Access to justice
  5. Physical infrastructure

(1) The Institutional Framework:

(a) Court Organization:

The object is to improve access to the Judiciary. The work will entail the organization of the Judiciary into a hierarchy of specialized tribunals and the establishment of ways and means for the Judiciary to regulate itself (e.g. the Supreme Council of the Magistracy, special Statutes for magistrate and clerks). A draft law governing the organization of the courts has also been prepared and submitted for review by the Council of Ministers prior to its submission to the National Assembly for adoption. It is expected that the new law, when it is adopted, will address some of the weaknesses which have been identified in the court system, particularly in terms of specialization and specialized courts.    

(b) Creation of Specialized Courts:

Another tangible sign in this reform process is the joint preparation by the Ministry of Commerce and the Ministry of Justice in the development and establishment of the commercial court as an alternative method of reform with experienced commercial lawyers as judges capable of adjudicating a series of commercial legislation such commercial arbitration law, companies law, bankruptcy law, and intellectual property laws. The commercial court model could provide momentum for judicial reform and the subsequent establishment of other specialized courts like the Labour Court and the Administrative Court.                        

(c) Discipline:

Another way to tackle the corrupt practices of the judiciary is to reinforce discipline. There is an urgent need to review the law and amend it, as necessary, to reaffirm the independence of the SCM and vest it with the powers that it needs to enforce discipline in the judiciary and, in so doing, discharge its constitutional mandate. The issue of conflicts of interest should be one of the prime criteria justifying the amendments. As such the amendments should provide for the removal of any members who currently hold posts in either the Executive or Legislative branches. Members of the SCM should not be sitting judges on any courts as they constitute a violation of the Constitution's separation of powers requirements.  

(d) Appointments and Promotions:

In the absence of a law governing the appointments and promotions of judges and magistrates, the criteria for their selection have been unclear. The adoption of a Law on Magistrates is urgently needed to define the role of judges and magistrates and determine the criteria for their appointments and promotions. The draft statute has been prepared by the Ministry of Justice, approved by the SCM and submitted to the Council of Ministers for approval and subsequent submission to the National Assembly for adoption.

(e) Case Load Management:

The Cambodian courts are faced with the dreaded problems of backlogs and delays. The court should avoid choosing the path of least resistance by simply increasing the number of judges. Instead, work processes should be constantly reviewed and improved, proceedings should be disposed of expeditiously and economically, thereby enhancing productivity.       

(f) Enforcement of Judgments:

Prosecutors have a role to play in the enforcement of court decisions. In the absence of a law on the enforcement of judgments issued by the courts, the Ministry of Justice issued an order in which the ministry "decides to give prosecutors the competence/right to lead in the implementation of court decisions for all levels of courts" at the request of a party. A follow-up law should be enacted or a sub-decree adopted to institutionalize that practice.            

(g) Judges' Salaries:

The issue of salaries cannot be dissociated from the other issues facing the judiciary. The low salaries of judges are certainly not the only factor, or even the chief factor, driving the alleged corruption in the judiciary, but it is bound to be a factor. Judges cannot be expected to be immune from corrupt influences unless they are provided with a financial package that effectively protects them from corrupt practices and material and pecuniary pressures. To suggest that the reform of the judiciary can be undertaken without a concomitant review of the remuneration package of judges is in effect to condone the existence of corrupt practices in the judiciary and to recognize its unavoidability.

Given the starting point of the Cambodian legal system after 30 years of war and unrest, Cambodia cannot afford not to put more resources into the judicial system to get it up to a functioning, competent level needed for private sector growth. If the Judicial branch is equal to the Legislative and Executive branches, and the Legislative branch is endowed with its own budget, allocating a separate and comparable budget to the Judiciary branch should not be considered out of the norms. It is difficult to truly develop independent courts without empowering the Judiciary with full financial independence from the Executive branch. This would represent a genuine separation of powers. This could be accomplished by the use of a separate budget line within the national budget for the courts, the SCM, and the Constitutional Council. Providing them with a salary that covers a reasonable living conditions on the one hand will increase the risk associated with corrupt practices and on the other hand give them a sense of dignity and professional pride.                

Undoubtedly, the benefits of such actions will be measured in the increase of confidence in Cambodia's judiciary among the public, and in particular, the private sector. Businesses will certainly take into consideration this positive development into their decision making on whether to commit new investments or at the least to retain their existing operations. As such in financial terms, the additional budget expenditures will be offset by the dramatic increase of public revenues generating from the growth and success of the private sector as economic actors and taxpayers.

A positive step in that direction has been undertaken as acknowledged by the SCM when it recently considered a draft Law on Magistrates that includes a provision for increasing judicial salaries. 

(h) Reconsidering the Role of the Council on Judicial Reform (CJR):

As an inter-ministerial, coordinating body which is composed of officials of the Executive branch, the CJR should avoid being perceived as having direct control over court activities. Policy making and monitoring, however, would not be inconsistent with the Constitution's separation of powers provisions. Therefore the primary duty of the CJR should not be in implementing judicial reforms but rather to formulate policy options and measures for reforming the judiciary. The implementing process should be left to the relevant existing institutions like the courts, the prosecutors, and the Ministry of Justice. Aside from making policy recommendations, the CJR can monitor their performance and report to the Supreme State Council on Reform on their progress. Finally, to generate wide-ranging policy initiatives, the structure of the CJR should be broadened to encompass a cross-section of the public and private sectors and civil society institutions.

(i) A New Vision for the Ministry of Justice:

The MoJ needs a new vision of its mission that removes it from the business of managing the judiciary which should be left to the SCM exclusively. Some initial concrete steps that could be taken to define the Ministry's important role in the justice system would be to sever the budgets of the Constitutional Council and the SCM away from the Ministry. Courts need their own administrative offices to handle case management, the appeal process, and expenditures without the administrative backstopping of the ministry. The new mandate of the Ministry should include the following key areas of responsibility: - drafting of laws; - developing and maintaining data/information on the criminal justice system; - organizing a judicial training center; - enforcing judgments, in collaboration with prosecutors; - planning, building, and maintaining court facilities; and - supervising court administrative personnel. 

(2) The Legal Framework:

Judicial Procedures:
The thrust of this activity is to promulgate a body of laws and regulations to complete the legal framework. The work will also entail the reform of judicial procedures which are to be addressed for the most part through the civil procedure and criminal procedure codes, both of which are currently under preparation. Both procedure codes, however, are unlikely to be ready for adoption for several years. Cambodia's criminal process at this point needs to have effective mechanisms to guarantee transparency in the collection and weighing of evidence. This raises some troubling issues for the Cambodian legal system: forensic and other physical evidence are rarely collected, defendants are detained without immediate access to counsel or family, and trials are frequently conducted without witnesses. Self-incrimination is not the exception but a well-established rule in Cambodia. In part, this situation persists because no law on evidence exists. 

(3) Human Resource Development:

(a) Capacity Building for Judges

The object is to develop a competent and motivated core of personnel. The programme would seek to address immediate needs such as the structuring of ongoing training mechanisms and meeting long term personnel requirements. Given the current levels of education among judges and prosecutors, major, long-term legal training is needed in order to improve the performance of the Judiciary. Recruitment of new judges, with formal legal education, must be part of the solution. New judges will not only upgrade the Judiciary by increasing the number of judges nationwide but also by raising the overall level of legal education.

Raising the level of human resources in the judiciary is a long-term process for the reason that many areas of law are highly technical and difficult to master, even for trained lawyers. There is no shortcut to legal training of judges. Cambodian judges will require intensive, comprehensive training to not only strengthen their basic legal skills in legal reasoning, drafting, and research but also to address key areas of law, for example, related to complex commercial laws on bankruptcy, secured transactions, tax, mortgages, and commercial banking.  

One avenue to handle this capacity building issue is through the establishment of a judicial training center for judges, prosecutors, and court administrative staff. A French style National School of Magistrate (Ecole Nationale de la Magistrature (ENM) as currently envisaged could be equipped with adequate resources, such as proper facilities, staffing, and a comprehensive program of training including on-going continuing legal education. Such a center could be the vehicle for the long-term strengthening of the Judiciary's human resources. Intensive training to a relatively small number of judges in specialized legal fields could be initiated to meet the urgent needs of the judiciary.

(b) Capacity Building for Court Support Staff

The success of any court depends very much on the quality and management of its administrative and support staff. With the higher performance expected of the courts and the need for the judiciary to be continually adaptive and responsive, new and strategic measures need to be explored to ensure that the administrative support infrastructure is able to cope with the case workload. Enhancing judicial productivity through the improvement of work processes require the constant upgrading of skills both the judges and his team of judicial and administrative officers. Judicial officers should receive all year-round professional training in the form of in-house education workshops as well as overseas courses and seminars. Their training should not just be limited to legal topics. It extends to field trips to expose them to current events taking place around them so that they are not insulated from the real world.   

(4) Access to Justice:

Publication of Court Decisions:

The object is to promote a good understanding of the laws, regulations, procedures and decisions of the courts. Initiatives could include the publications of courts judgments and decisions of all levels. At the end these publications will serve to enhance transparency of court decisions and can serve as seedbeds for the buildings of the Cambodian jurisprudence. The existing Bulletin of Supreme Court Judgments should be regularly published. Similar efforts at the Appeal court and the municipal courts should be undertaken. 

(5) The Physical Infrastructure:

The object is to prepare a comprehensive strategy and investment plan to rehabilitate tribunals and their equipment so as to improve the effectiveness of the Judiciary. The building of the Municipal Court of Phnom Penh and those of other lower provincial and municipal courts should be rehabilitated and expanded to accommodate new office space to house judges and their staff. Judges should be equipped with adequate hardware and software required to perform their mandated tasks. Overtime in the drive towards greater efficiency, the courts should consider employing information technology as tools in the adjudication process.

Regional Appeal Courts should be established in key provincial towns to ease access and reduce the costs for people in outlying regions.

⁴ Even though judges and prosecutors have different responsibilities, the word judge, as it is used in a general sense as a title in the Cambodian judicial system, refers not only to judges who sit at trial but also to those who hold the position of prosecutor. A judge involved in a trial or investigation is called a sitting judge (chaokrâm ângkuy). A judge who holds a position in the prosecution department (ayakar) is called a standing judge (chaokrâm chhor). A sitting judge can be a standing judge during his or her career in the court and vice versa. Both types of judges have equivalent rank. For purposes of this book, a judge refers to a sitting judge. (Koy Neam, Cambodian Judicial Process, The Asia Foundation, 1998)

⁵ Kram No. CS/RKM/0498/06

⁶ Anukret No. 19/ANK/BK of January 20, 2000 on the Organization and Functioning of the Ministry of Justice

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