Cambodia's new law hands control of courts to the state

New legislation provokes disappointment and warnings

Journalists watch a March 2013 Appeal Court trial of broadcaster Mam Sonando, who was arrested on charges widely believed to be politically motivated. (photo by Abby Seiff) 

• Abby Seiff, Phnom Penh
• Cambodia
• May 27, 2014

After two decades in development, Cambodia’s independent judiciary laws should have been the finest on earth.

First proposed in the early 1990s, the laws have been in the works since 2005. A group composed of foreign experts and Cambodian officials met every few months to discuss the laws; every six months, the government would meet with donors to update them on progress. 

Today, the draft legislation is awaiting a rubber stamp from the Senate and the king, after which they will be enshrined in Cambodian law. But the bills passed last week by parliament bear no resemblance to their promised aim. Instead, more than 20 years after first promised, Cambodia’s all-important judiciary laws look set to legalize government control of the courts. 

“If these bills in their current form are passed into law, the Royal Government of Cambodia will cement its existing control over the country’s judges and prosecutors, posing a serious threat to the rule of law in Cambodia,” local and international rights groups warned in a joint statement yesterday.

Chief among the concerns is that the laws allow the Minister of Justice, who is appointed by the prime minister, an inordinate amount of power over judges and prosecutors.

“While the draft bills do contain some promising provisions that purport to ensure judicial independence, the overall subordination of judges and prosecutors to the executive in violation of international standards is of serious concern,” said Kingsley Abbott, a legal advisor at ICJ International, a legal advocacy group.

The legislation, which is often referred to by government and legal experts as the ‘three fundamental laws’, were intended to help combat an easily politicized court system. The Law on the Organization of the Courts codified court jurisdiction; the Law on the Statute of Judges and Prosecutors laid out the roles of court officials and punishments they could face for infractions; while the Law on the Organization and Functioning of the Supreme Council of the Magistracy explained how the highest body of the judiciary could govern and discipline the rest of the court.

But almost from the start it was clear that the laws would be likely to fall short of their lofty goals. Despite the countless meetings and working groups and codified system of progress, the laws stalled for years. When the government promised in 2012 that the laws would soon be passed, it was the 18th time in seven years they had made such a claim. And while working group meetings were held every three months, the group at one point went more than five years without an updated draft. When UN officials and donors urged the government to speed up passage of the laws, their response was little more than: we’re working on it.

Eventually, however, it appeared that the government realized it could accomplish more by passing the laws with the provisos it wanted than by stalling. After years of fits and starts, officials announced in February that the laws would be immediately forthcoming. Despite pleas from civil society and legal experts, the government refused to release drafts or seek consultation, with Prime Minister Hun Sen at one point noting that there was no legal obligation to seek their input. In late April, the laws were passed by the Council of Ministers. Less than a month later, they sailed through a one-party National Assembly devoid of debate due to an ongoing opposition boycott.

“Our concern is that we have spent many years entrusting the drafting of the judicial laws [to the government] but the process was not very transparent and not in keeping with a democratic society that allows consultation with civil society and stakeholders,” said Duch Piseth, a trial monitoring project coordinator at the Cambodian Center for Human Rights.  

Even the years of input from foreign donors and legal experts who made up the working group appear to have been – at least in part – chucked out of the window. Shortly after the election, the prime minister moved draft law supervision to the Ministry of Justice, according to Piseth. There, unsurprisingly, the strongest provisos were watered down or removed.

“The new draft laws provide much more power to the Ministry of Justice, which was involved in drafting the law,” said Piseth.

“One article said that the judiciary would not be under power of executive or legislative or any political party, but that was removed from the version approved.”

The laws as they stand appear likely to cement the judiciary’s worst flaws. Cambodia’s courts are renowned for their partiality. Rights activists, journalists and political opponents are routinely convicted on trumped up – or even fabricated – charges, while ordinary citizens are often dragged into court and handed down stiff sentences as a means to intimidate the larger population.

On Friday, Phnom Penh Municipal Court is set to give its verdict in a case involving 23 people charged with causing and instigating violence during January’s bloody protests. Among the evidence presented against the group – which includes professional unionists and rights monitors – were blurry photos of a crowd, and video footage from an unrelated protest.

Outspoken land rights activist Yorm Bopha served more than a year in prison after being convicted of masterminding an attack on two men. When she was released on bail in November of last year, she was warned by the court to avoid protests and keep quiet. Numerous other activists from her community have served weeks in prison only to be released following brief trials with no lawyers present.

The biggest thorns in the government’s side, meanwhile, have faced multiple arrests. Mam Sonando, one of the country’s only independent radio broadcasters and a frequent government critic, has been imprisoned three times. In 2013, he served more than eight months after being convicted of leading a secessionist movement that appears to never have existed. And while prominent members of the opposition have avoided arrest, they, too, have wracked up convictions on defamation, disinformation, incitement and other charges. 

In a country where the courts often bow to political pressure and the independence of the judiciary is routinely compromised, there was never going to be any guarantee that a well written law would fix entrenched problems, let alone be followed. But the appearance of such a flawed law has proven especially galling to many stakeholders.

“It will be a huge blow to the current justice system, and further strengthen executive control on the judiciary – the government will legally have control of the court and control of judges and prosecutors,” said Piseth.