A Change of Guard

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Saturday, 23 April 2016

Independent courts not an option but a choice

Union president Ath Thorn speaks to the media in front of Phnom Penh Municipal Court last year.
Union president Ath Thorn speaks to the media in front of Phnom Penh Municipal Court last year. Heng Chivoan

Independent courts not an option but a choice
Fri, 22 April 2016 ppp
Preap Kol

“Power tends to corrupt, and absolute power corrupts absolutely” said Lord Acton, one of the brightest minds of England in the 19th century. Long before him, John Locke and Montesquieu had warned that liberty could only be secured when power was not controlled by one man or one group.

Indeed, they both advanced the idea of what later came to be known as the doctrine of separation of powers, by which the three branches of government must be handled by different agents. Historically speaking, Cambodia was an empire where kings enjoyed vast power covering all areas of government.

Immediately prior to French colonial rule, the Cambodian king effectively held the authority of the supreme judge, and justice was sometimes left to supra-natural forces through ordeals (for instance, a suspect whose hands were not harmed after being put in boiling water would be declared not-guilty).

But things began to change with the arrival of the French, who brought modern ideas to this primitive land. Justice gradually came to be decided not by kings or ordeals, but by prescribed legal proceedings and evidentiary hearings within boundaries the French were only too happy to allow.

The noble liberal vision set forth by Locke and Montesquieu only became obvious when our Constitution of 1993 solemnly recognised not only the separation of powers but also, and more importantly, the independence of the judiciary.

But more than twenty years later, the courts still have not benefited from this constitutional aspiration. One simple explanation for this lagging behind is that the current mechanisms do not facilitate adherence to such a grand principle.

Indeed, although the people have generally perceived that the judiciary sadly lacks integrity, this hasn’t resulted in many judges getting fired or sent to jail. On the contrary, more and more cases have come to light involving obvious political interference with judicial power. This happens so frequently that we need not highlight any one case in particular.

The tree of separation of powers – the foundation for liberty – has been fruitless. But what would happen if it were bountiful, for once? What would happen if courts were a bit more independent? Wishful though it sounds, if courts were independent, a few things would happen.

First, executive action would be checked and governmental power would be limited and controlled by the principle of legality, instead of undue influence and illegal authority. Consequently, there would be much less suffering, which has often been inflicted upon the poor and those prone to being used in political gambling.

Secondly, parties to a court proceeding would enjoy more equal treatment under the law. Thus, fewer bribes would be paid by those all too often ready to own and dictate the proceedings through financial and political means.

Thirdly, judges themselves would have better reasons to believe that their career advancement would be based more on professional merit rather than on political or personal usefulness, which seems to have corrupted the system up to a point that is almost beyond repair.

As things now stand, the three abovementioned ideal principles seem too good to be realistic for some, or too threatening to the established political class. Instead of upholding legality, people have noticed an increasing trend in openly using personal or family influence to get things done via unorthodox means.

Despite concerted efforts by development partners to push for the use of a computerised database system, we have heard stories in which litigants are asked to pay unofficial fees to court clerks for a chance to check the database to get an update on their case.

Finally, Cambodians may have to put up with a court system in which spouses or parent and children could work together, one as judge and the other as prosecutor in the same court. Although they may not, and should never, be assigned to the same case, the integrity of that court system is questionable at best.

Rome wasn’t built in a day; things will take time, or so they say. While there could be some truth in this ancient statement, nobody in their right mind should consider it an excuse not to try much harder and faster.

Controlling the judiciary through politics and force will not end well, for this is like a homing pigeon that always returns home. But it’s not too late.

While Lord Acton’s statement remains self-evident, it could be proved wrong when there is a strong will to work to the contrary. The power holder still has an easy choice to make with regard to how he wishes to use that power.

Want it or not, the delay in creating an independent judiciary isn’t an option anymore because the number of young voters who hate judicial corruption and those behind it will only increase.

And no one should like this increasing agony. In the interest of the nation and her people, an independent judiciary must be a choice.

Preap Kol is executive director of Transparency International Cambodia.

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