The system cannot secure the constitutional rights of the Cambodian people. The law is not predictable. As a result the people have very little trust in the established system.
These institutions remain subject to the control inherited from pre-1993 communist days, and are utilized to serve the interests of the ruling class rather than those of the people. Although Cambodia has held periodic elections, and preparations for the forthcoming election are underway, its multi-party, liberal democracy has little substance.
First of all, there is no separation of powers among the three branches of government. The idea of checks and balances is entirely absent. The Parliament is overwhelmingly dominated by the ruling Cambodian People’s Party, a former communist party, and is unable to hold the government accountable for its decisions and activities. Its main function seems to be to rubber stamp the government’s wishes into law.
The judiciary is also under executive control, as most judges and prosecutors belong to the ruling party. Other supposedly independent institutions such as the Constitutional Council and the Supreme Council of the Magistracy, the judicial body responsible for the appointment and discipline of judges and prosecutors, are all peopled, from top to bottom, by members of the ruling party. And all CCP members are subject to the strict discipline of the party.
Such extensive and tight control has inevitably enabled Prime Minister Hun Sen, already acknowledged as "the strongman of Cambodia," to become even more unchallengeable. Through the party machinery, he controls all those institutions and rules the country with scant regard for the rule of law.
Sen has, for instance, ordered the retrial of accused persons already acquitted by the courts, accusing judges and prosecutors of corruption. He has ordered the arrest of critics or has threatened them with jail sentences, or killed their personalities through public name-calling. He has halted the execution of court judgments or affected these judgments through his "notification letters."
Over the last few years Hun Sen has used his personal power to address the hot issue of land grabbing, which has affected the livelihood of many Cambodians. This issue has arisen out of numerous land disputes between the rich and powerful and the weaker poor.
Sen has recently revealed that he wants to resolve all these disputes “outside the justice system.” In 2006 he created a national authority to resolve land disputes, ignoring the legal jurisdiction of the courts of law and the cadastral commissions created specifically for the purpose under the land law of 2001. A year later, he waged a "war against land grabbers," identified as officials of his party and other “people in power.” Last March he went to a piece of disputed land and, in the midst of the evicted families, took the land from the grabbing company and gave it back to those victims.
Because of his power and his past direct intervention, the people view Hun Sen as the only person in the country who can help the victims of land grabbing, as they lose trust in the courts and other authorities. Over recent months, many have been flocking to his residence on the outskirts of Phnom Penh to petition him for help.
On May 23 some 200 people from the Battambang province journeyed on foot and by car to petition Sen at his residence. The representatives of 265 families in Koh Kong province arrived on June 9, and over 200 people from four different provinces of the country arrived four days later.
Still, Hun Sen’s direct intervention has made little headway. He simply cannot meet all those people’s demands. Some marchers from Battambang province still wait in Phnom Penh after handing in their petition to his office. One desperate marcher declared that if Samdech Hun Sen did not resolve her land dispute and the land dispute adjudicating authorities did not do it either, her group would buy all law books and burn them in front of the Ministry of Justice in Phnom Penh. There is still a big backlog of cases and new ones keep arising.
Hun Sen has not used his power to empower the state institutions and administrative machinery, which lie under his firm control, for public interest. Thus adjudication of land disputes is personally directed toward him. He should exercise his power, not through direct intervention, but to create a more efficient infrastructure so that the existing institutions are able to capture the people’s trust and serve the public interest.
Jean Monet, widely known as the founding father of the European Union, said, “Nothing is possible without men; nothing is lasting without institutions.” Monet’s dictum is very much relevant to the establishment of well-functioning institutions for parliamentary democracy and the rule of law to serve the Cambodian people and not simply the ruling class.
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(Lao Mong Hay is a senior researcher at the Asian Human Rights Commission in Hong Kong. He was previously director of the Khmer Institute of Democracy in Phnom Penh, Cambodia, and a visiting professor at the University of Toronto in 2003. In 1997, he received an award from Human Rights Watch and the Nansen Medal in 2000 from the United Nations High Commissioner for Refugees.)
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