A Change of Guard

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Monday 30 June 2014

CSO - Press Statement Demanding the Constitutional Council to Declare the Three Newly Passed Laws on the Judiciary Unconstitutional


Phnom Penh, 26 June 2014 – Cambodian Civil Society Organizations strongly urge the Cambodian Constitutional Council to declare the three newly passed laws on the Cambodian judiciary unconstitutional.

The Law on Organization and Functioning of the Courts, the Statute of Judges and Prosecutors, and the Law on the Organization and Functioning of the Supreme Council of Magistracy, are the specific foundation in ensuring the implementation of the principle of rule of law, and to guarantee the fundamental rights enshrined in the national constitution. However, the laws contain defects that both render them ineffective in providing such guarantees, and which render them unconstitutional.

The unconstitutional provisions of each are as follows:
1- The Supreme Council of Magistracy: Article 4, 8, 13, 15, 18, 23,
2- The Statute of Judges and Prosecutors: Article 7, 33, 50, 53, 75 and 96
3- The Law on Organization and Functioning of the Courts: 10, 11, 24, 28, 75, 77 and 79

The critical unconstitutional defects are described below:
·         Combining the powers of legislative body and those of executive body [the Ministry of Justice] in the structure, functioning and financing of the Supreme Council of Magistracy, which is supposed to ensure the independence of the courts;
·         Allowing automatic appointment of the members of discipline committee without being voted for by an independent body;
·         Allowing the executive body [the Ministry of Justice] to influence the grade and ranking promotion of the judges and prosecutors;
·         Providing the Ministry of Justice with powers to examine administration of the courts at all levels; and
·         Giving powers to the Ministry of Justice to manage the funds of the courts at all levels.

These issues, among others concerns, undermine the independence of the courts and the impartiality of judges and prosecutors. As such, these three draft laws cannot guarantee the separation of power between legislative, executive and judicial branches in accordance with Article 51, Article 128 and Article 132 of the Constitution of Cambodia. These defects also undermine every citizen’s right to a trial before an independent and impartial body.

When the drafting process on these laws first started in 2005, it was the government’s expressed objective to create three laws of fundamental importance that would strengthen the independence and impartiality of the Cambodian judicial system. After years of delay, the Cambodian government has now passed, in quick succession, these three laws on the judiciary.

This speedy progress came as a surprise and may be as a result of the 18th Session of the Universal Periodic Review Process in January 2014, in which the Royal Government of Cambodia (RGC) committed to passing the laws “within the first semester of 2014.” Therefore, the RGC rushed through the draft laws, debating them only a few days in the National Assembly. The laws were unanimously passed by parliamentarians from the ruling Cambodian People’s Party (CPP) on 22nd and 23rd May, 2014. The current provision of the newly passed Law on Organizing and Functioning of the Supreme Council of Magistracy does not fully guarantee the separation of powers as stipulated in the Article 51 new of the Cambodian
Constitution, “… The power shall be separated between the legislative power, the executive power and the judiciary….” Also, the Article 128 new of the Constitution states that “Judicial power is an independent power. The judicial power is the guarantor of impartiality, and the protector of the citizens’ rights and liberties….” And, the king guarantees the independence of the judicial body. However, the newly passed laws do not reflect the spirit of the constitution.

Although the Government pledged in 2012 to hold public consultations on the three draft laws, such consultations have never taken place. The CSOs have strongly criticized the government for their lack of transparency in passing the laws, not only because there was no consultation, but also for the fact that the draft laws were not made publicly available prior to its passage. The CSOs had to rely on leaked versions of the draft laws to assess their impact and to point to their shortcomings. On 12 June, 2014, the Cambodian
Senate passed these controversial draft laws immediately, despite concerns expressed by donors and civil society groups, again with only CPP Senators voting, as the Opposition Senators boycotted the parliamentary session.

Cambodian CSOs and international organizations have long been united in their concern that the three laws would, rather than strengthening the independence of the judiciary, provide a legal basis to reinforce the tight control of the executive branch over the judiciary. The core of the criticism is related to the role of the Supreme Council of Magistracy, which is guarantor of the independence of the judiciary under the Cambodian Constitution. However, the law fails to ensure that the Supreme Council of Magistracy is a truly independent body as stated in the Constitution because it enables the Ministry of Justice to influence key decisions such as the appointment and promotion of judges as well as disciplinary proceedings against them. This is despite the United Nations Human Rights Committee expressing concerns that the ‘Supreme Council of Magistracy is not independent of government influence’. In addition, the Ministry of Justice has financial authority over the Supreme Council of Magistracy and all courts. Consequently, the law interferes with the democratic principle of separation of powers by granting extensive power to the Ministry of Justice to essentially control the internal administration and financing of the judiciary.

These newly passed laws gravely concern Cambodian CSOs as they will hamper any progress towards a more independent judiciary. In the Cambodian context, it is particularly important to strictly adhere to the principle of separation of powers, since the government frequently influences judicial decisions in politically sensitive cases. Without a well-functioning and independent judiciary, Cambodia will not be able to establish a democratic system based on the rule of law. Therefore, Cambodian CSOs call on the
Constitutional Council to exercise their constitutional mandate to safeguard the Constitution of Cambodia and review the laws before promulgation. As the laws fail to uphold the constitutional principles of separation of powers and independence of judiciary, under a fair and balanced interpretation of the Constitution, they must be declared unconstitutional. If the laws are promulgated and enter into force in their current form, they will violate the principle of judicial independence and thereby deny the right of citizens to fair trial and by the competent, impartial and independent court.

For more information please contact:

Mr. Sok Sam Oeun, Chairman of CHRAC, 012 901 199
Mr. Suon Bunsak, Chief of Secretariat of CHRAC, 092 344 355
Mr. Ny Chakrya, Head of Human Rights and Legal Aid Section, ADHOC, 011 274 959
Mr. Preap Kol, Executive Director of TI-Cambodia, 012 877 833
Mr. Duch Piseth, Trial Monitoring Coordinator of CCHR, 012 712 371
Mr. Mi Nac, Advocacy Specialist of CCC, 012 475 741
Mr. Ou Samedy, Youth Representative, 012 656 956
Mr. Seng Sna, Bengchuk Community Representative, 012 495 212

Please find the press statement attached in English.



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