A. Judicial Reform

·                     The RGC should significantly increase its current national budgetary allocation to the Ministry of Justice and Court system. The current figure of 0.3% is grossly inadequate to finance even basic levels of functioning. The justice system must be financed at a level that will enable both its day-to-day functioning and the implementation of reform programs.

The need to increase the budget for the justice system is recognized in the chapter on “Legal and Judicial Reform”, though there is no corresponding budget allocation mentioned in the chapter on “Public Resource Requirement and Management.”

·                     The RGC should expedite the criminal procedure code, penal code, civil code and civil procedure code, the draft law on domestic violence, and a law on the National Congress. The National Assembly and Senate should ensure that these laws are consistent with other applicable Cambodian Laws and comply with the Cambodian Constitution and international instruments. All practitioners, such as judges, prosecutors, lawyers and police officers, should participate in the law-making process. These draft laws are very important. They should be widely discussed, and comments from all sectors should be received by the RGC and seriously considered, in a series of hearings if necessary.

Amendment of key laws included in the Action Plan matrix, but the role of the parliament and other stakeholders is not mentioned.

·                     The RGC should expedite as soon as possible a Law on the appointment, removal and dismissal of judges and prosecutors. A draft Statute of the Magistracy that reforms these and other areas has been before the RGC for over three years without any apparent progress.

Not specifically included, though there is reference to “the Statute of the Magistracy is reaching the final stages of approval.”

·                     The RGC should strengthen the legal and institutional framework governing the judiciary by establishing a clear court organization and administration of justice, terms and conditions of employment, work environment of judicial staff and promotion of women in the legal and judicial sector.

Implied in the text, but no budget available in the Action Plan matrix.

·                     Salaries of judges and prosecutors should be raised in order to combat and reduce corruption in courts. Because the judicial power is equal to the other two branches of government, the salaries of judges and prosecutors should be equal to those of parliament members and members of the executive branch.

The need for salary increase is mentioned in the text, but there is no corresponding action in the Action Plan Matrix.

·                     The curriculum of the School for Magistrates is vital to building the quality of Cambodian judges and prosecutors.  It should be developed based on the Constitution with input from a wide range of qualified experts and institutions, including legal NGOs.  The School of Magistrates should also provide additional training to the existing judges and prosecutors, and allow special entry to magistrates' training for qualified and experienced Cambodian lawyers with demonstrated skills, knowledge, experience and integrity.

There is reference to the fact that a Royal School of Magistracy has been established, though there are no details.

·                     The overall structural reform of the judiciary must include a clearly defined supervisory role and jurisdiction for the Supreme Court, as the high organ of the judiciary, and additional Appeal Courts instituted for better access to higher level courts.

Not specifically included, except that “a feasibility study on the establishment of additional Courts of Appeal” at the provincial level is suggested. 

·                     Judges and prosecutors should not be members of, or appointed by, any political party; and if necessary, all relevant Cambodian laws should be amended to make this clear.

Not included.

·                     Corrupt judges, prosecutors and other court officials should be punished in accordance with the law. A functioning, independent and effective anti-corruption commission should be created to investigate cases. Again, the RGC has two draft laws before it that seek to achieve these objectives but there has been no apparent action to expedite their passage through the legislative process: the draft Statute on the Magistracy and the Draft Law on Anti-Corruption. The police should be reformed to be responsible and accountable in order to help to combat corruption.

Partly included in the text, where it says that disciplinary actions should be strengthened. This is however, not included in the Action Plan matrix.

·                     The RGC should establish a system of publishing court decisions, starting with those of the Supreme Court.

Not specifically included, though the need to “widely disseminate” laws and regulations is recognized.

·                     The RGC should establish a commercial court and an administrative court.

·                     As in France, the power of the investigating judge to consider pre-trial detention should be transferred to an Approval Judge in the local court and the detention/bail hearing should be adversarial. Investigating judges in Cambodia are over-detaining accused and failing to follow detention criteria specified in the UNTAC Law, due to undue influence from MOJ circulars, lack of efficient mechanisms to keep track of bailed accused and a desire to expedite the investigation by keeping accused in detention for easy access.

Not included.

B. Supreme Council of the Magistracy (SCM)

·                     The SCM should be reformed to ensure its independence. Although the Supreme Council of the Magistracy (SCM) exists, this institution has not effectively carried out its role of ensuring the independence of the judiciary. That is because its members are either not themselves independent or free from political influence, or they are preoccupied with heavy workloads. The Law on the Establishment of the Supreme Council of the Magistracy should be amended to exclude members of the executive branch, to avoid conflict from member's existing functions and to ensure that no members are active in any political party. Moreover, the independence and competency of the whole judiciary needs to be the task of reform. Whenever related laws are to be amended, the elements necessary to secure independence and competency must be adequately entrenched.

The need “for reforming and strengthening the Supreme Council of Magistracy”  is included in the text and amendment of the law is included in the Action Plan matrix.  However, the specifics on how this reform should take place is not included.

·                     Members of SCM must be non-partisan (have officially resigned from membership of any political party), should hold no position in the Legislative or Executive Branches, and should work full time in the SCM. Additional members should also include representatives from the Cambodian Bar Association and academic institutions.

Not included.

·                     Members of the SCM should be selected from the ranks of judges, prosecutors, lawyers, or law academics.

Not included.

·                     The composition of the SCM should consist of: The King as president; President of Supreme Court; Prosecutor General of Supreme Court; two elected magistrates (one judge and one prosecutor); two lawyers from the CBA; two  law academics.

Not included.

·                     When the President of the Supreme Court and the Prosecutor General of the Supreme Court become members of SCM, they should no longer adjudicate cases in the courts.  This means that they should not play the role as the judge and Prosecutor.

Not included.

·                     Because His Majesty the King cannot chair the SCM, it is better for the King to select and appoint a Chairman of the SCM for a fixed term. This appointed person must be independent from any conflicting public function.

Not included.

·                     The SCM law should be amended and the draft law on the Statute of Magistrates, which is currently being considered by the RGC, should be expedited and should more clearly define the respective roles of judges and prosecutors.

Amendment of the law is included in the Action Plan matrix.

·       A code of conduct and ethics for judges and prosecutors should be drafted and adopted.

Implementing a Code of Ethics for judges is included in the section on “Anti-Corruption.”

·       The SCM must have actual power to punish magistrates who commit any wrongdoing in accordance with the Statute of Magistrates and Code of Ethics of Magistrates. In order to implement this discipline, the two said laws must be quickly adopted.

Implied, though no timetable for adoption is given.

·       The SCM should receive an autonomous budget and have its own secretariat, which is independent from the Ministry of Justice.

Not included.

·                     The SCM must draft an annual action plan for the programs it will conduct during the year. The Action Plan will serve as a basis for an evaluation of its performance. Furthermore, the SCM must establish a hearing procedure for disciplinary actions taken against a judge or prosecutor for misconduct.

Not included.

C. Improvement of judicial process and access to justice:

·                     A prompt mechanism to correct errors in the judicial process and to expedite complaints and appeals must be developed by granting special powers to Appeal Courts (if more than one is created) and the Supreme Court.

Not included.

·                     Improvements in procedural, investigative, forensic, and trial mechanisms, including judgement writing techniques, are part and parcel of the court management system at all levels of courts, but especially at trial court level. Capacity building of judges, prosecutors (with full accusatorial responsibility), court clerks, and other investigating officials is crucial to the reform process and demands equal attention.

Capacity building for judges, prosecutors and clerks is included in the Action Plan matrix.

·                     Enforcement of judgements is another critical area. Failure to enforce judgements within a defined period must be dealt with by severe sanctions. A strong Contempt of Court Law should be drafted and adopted that enables both the security of the court and its personnel, and the enforcement of its judgments.

Not included.

·                     Access to courts for all must be facilitated through legal aid schemes, and legal representation should be made mandatory.

The Action Plan Matrix (4.1.) refers to facilitating partnerships to ease access to information and services e.g., legal aid,“ though there are no specifics or budget.

·                     The government’s investment in legal aid, to provide all Cambodian citizens with equal access to justice, needs to be substantial. The organization and funding of a legal aid system needs to be tied into any comprehensive judicial reform plan.

Not included.

·                     Creation of special courts (or benches in the courts) to deal with the special nature of issues relating to juveniles, labor law, family law, commercial law, or even trafficking in persons, has become an important priority.

The need to create a commercial court is mentioned in the text; creation of an arbitration system for labor disputes is included in the Action Plan matrix.

D. Law Publications:

·                     The RGC should enable government officials, judicial staff, attorneys, legal education institutions, legal scholars, business people and society as a whole to have access to legal information through the publication of an "Official Gazette". Public access points could be law libraries and legal research facilities, CD-ROM legal databases and official websites. The RGC should also establish a government bookshop in Phnom Penh where all official public documents and government publications may be purchased at a subsidized rate.

Not included, though the need to disseminate laws and regulations is recognized.

E. Civil Society (NGO) participation in lawmaking process

·                     Civil Society especially should be permitted to participate in the various steps of the legislative process, including being able to defend recommendations before government committees or select Committees of the National Assembly or Senate.

Not included, though the increase in participation in law making processes is recognized.

·                     All draft laws relating to the judiciary that are currently under consideration should receive comments from legal experts, stakeholders and civil society organizations. All legislation should go through a consultative process that provides adequate opportunity for study of substantive content and time for comment.

Not included.

·                     CHRAC notes with concern the recent enactment of laws amending both the SOC and UNTAC criminal laws without thorough participation and discussion with civil society legal experts. The resulting laws could have serious side-effects. For example, the extension of the 48-hour police detention period by the SOC amendment is based on the fallacious assumption that such period is for the purposes of investigation. Rather than investigating thoroughly until they have lawful grounds for arresting, Cambodian police tend to arrest first in order to conduct an investigation that justifies the arrest. The amendment to the SOC Law simply encourages this practice. The amendment to the UNTAC Law seriously erodes judicial discretion in sentencing which, in the absence of affirmative defenses in Cambodian law, could lead to serious injustice where criminal acts are otherwise justified – for example, by self- defense.

Not included.

F. Cambodian Bar Association (CBA) and Human Rights NGOs

·                     The CBA should increase the number of lawyers who can practice law by accepting more trainees for Lawyers Professional Training or accepting experienced law graduates who are working in the public or private sector.

Not included.

·                     The CBA must be empowered and strengthened so that it can build the capacity of its lawyers with assistance and support of donors. Appropriate policy changes and resource allocations must be made immediately to increase the number of lawyers and make their legal skills effective, while at the same time ensuring transparency and accountability in the CBA’s management and use of funds.

Partly included in text where it says that a strategy focus is the training of lawyers and support of the Cambodian Bar.

·                     Legal/Human Rights Organizations need to be strengthened by all means and should have sufficient financial support to at least maintain their level of operations.

Not included.

·                      

G. Transparency

·                     Transparency in both law making and enforcement is essential. Publication and analyses of laws, parliamentary debates and resolutions, and court judgements should be given top priority.

Not included.

·                     Top-down corruption is probably the single biggest obstacle to the country’s development. A law on anti-corruption and assets declaration has been drafted and must be expedited by the government with the full participation of Civil Society. Timelines and conditionality for the implementation of this law, or a similar law, must be tied to donor assistance. Ultimate responsibility for its implementation lies with the Prime Minister who has the primary task of ensuring that the Anti-Corruption Commission created pursuant to such law is itself free from corruption. Hence, the utmost care should be taken in constituting such a Commission and the institutional framework to enable it to operate effectively.

Partly included. The anti-corruption law is included in the text, but responsibilities for implementation are not given. There is no mention of a law on assets declaration.

·                     A Law on Freedom of Access to Information must be drafted and adopted with the participation of Civil Society.

Not included.

·                     The National Audit Authority must be independent. The Candidates for this authority must be non-partisan.

The NAA is now operational, and “governed by special statutes that ensure its independence…”

·                     Ombudsman-like institutions with investigative capacity and reporting obligations to parliament can also contribute to accountability and transparency in government, and should be set up by law wherever needed.  However, there is a shortage of those with the expertise and credentials to fulfil this type of role.

Creation of an Ombudsman Office is included in the text, but no details or constraints are mentioned.

H. Establishment of Khmer Rouge Tribunal

·                     The establishment of the Khmer Rouge Tribunal should be prioritized in order to find justice for victims in accordance with UN standards.

Not included.

·                     The Royal Government should respect the MOU made between the UN and RGC and cooperate with the UN to establish this tribunal, if necessary amending the law to enable conformity with international trial standards.

Not included.