1. Introduction		CONTENT

1.1 Legal and Judiciary System

As mentioned in the GAP, a credible, predictable and transparent legal framework and an independent and capable judiciary are the foundation of the rule of law and underpin the development of democracy, market economy, and social justice. Shortcomings of the law making process, the judicial institutions, and law enforcement have been well documented in various reports on governance, conducted with assistance from various donors, including the ADB, the World Bank, CIDA, AusAID and NGOs. The GAP therefore proposes the following governance actions in the areas of legal reform, the strengthening of the judiciary and law enforcement. The Council for Judicial Reform is responsible for overseeing the development and implementation of related work plans.

1.2 Legal Reform

1.3 Strengthening of the Judiciary and Law Enforcement

The Government on numerous occasions has expressed its willingness to promote good governance and to develop the rule of law. While it has recognized that a sound legal and judicial system is fundamental to really making that happen, much remains to be done to establish a credible justice system, to significantly enhance the integrity of the courts and to improve the enforcement of laws. 

The following are some of the judicial reform issues which the Governance Acton Plan addresses:

2. Summary of progress		CONTENT

The following summary of progress was prepared in February-March 2002 as the basis for further NGO discussions on the reforms. 

The Government has already undertaken various governance actions to begin to address the above-mentioned issues. However, not much significant progress has been achieved so far.  Further donor support is needed to fill gaps in the current assistance. 

The most important steps towards judicial reform has been the passing of the sub-decrees on establishment of a school for judges and training center for lawyers, and the opening of school for judges. The appointment of 30 judges and prosecutors is also of great importance for the judiciary. The law on the Supreme Council of Magistracy (SCM) has been amended, and the Disciplinary Council has started to better fulfill its duties. To date they have reprimanded 27 judges. 

The progress report in the matrix below was prepared by the General-Secretariat of the Council for Administrative Reform (CAR) GAP monitoring unit in December 2001. The CAR received information on all reform areas in the GAP and summarized its findings in the progress report. The NGO Forum has made additional comments (in italics) to update the GAP progress report through interviews with donors, experts and technical persons in the field. 

The table below indicates progress in achieving short-term (one year) and medium-term (2-3 years) goals in areas such as development of clear legislative processes, preparation of important laws, improvement in the publication and dissemination of laws and regulations, and promotion of effective participation of the public in the law making process:

Progress in Legal Reform*

* Source: Council for Administrative Reform (December 11, 2001), “GAP Progress Report”
** Numbers in brackets () refer to original numbering in the GAP.
*** Information in italics has been added, based on interviews or reviewing official documents/report.

2.2. Progress in Strengthening of the Judiciary and Law Enforcement*

* Source: Council for Administrative Reform (December 11, 2001), “GAP Progress Report”
** Numbers in brackets () refer to original numbering in the GAP.
*** Information in italics has been added, based on interviews or reviewing official documents/report. 

3. Summary of NGO involvement in the sector

CONTENT

The major NGO alliance that has been known to have quite active involvement in the legal and judicial reform sector is the Cambodian Human Rights Action Committee (CHRAC). Other civil society groups and NGO networks are also involved. 

CHRAC, known as the Action Committee, was established in 1994. It is now an alliance of 18 neutral, non‑partisan, local non-governmental organizations in Cambodia, namely: LICADHO, ADHOC, VIGILANCE, KKKHRA, KID, IDA, GENERIOUS, CCPCR, CHHRA, CKIMHRDA, KKKHRDA, CHRTF, KYA, KSA, CDP, LAC, CWCC and KHRACO. (See Appendix for full names). 

While CHRAC meets regularly in Phnom Penh, some of its member organisations like ADHOC, LICADHO and VIGILANCE have field operations in almost all provinces and towns throughout the country. 

The following are the areas that CHRAC as an alliance and its individual member organizations have been involved in: 

Research and documentation

Public Awareness and Education

Monitoring/Investigating of Human Rights Violations

Provision of legal assistance

Advocacy

Note: It is important to note that there are other NGOs and coalitions that also actively involve in various ways in different areas of the legal and judiciary reforms. (See list of some NGO coalitions involved in the reform areas in the Appendix). 

Through their involvement in different areas, NGOs have observed the following issues that need to be addressed in the undertaking the reforms: 

4. Issues Raised By NGOs

CONTENT

• The check and balance system needs to be improved
  Failure to perform constitutionally mandated duties: There has been weak fulfillment of the constitutionally mandated duties of different bodies of the government. The legislative is weak in exercising its mandate to demand the executive to report and to explain certain issues of importance to the people. The executive branch has been reluctant to report or answer to the legislative. The judiciary is inactive in exercising its constitutionally mandated duties to interpret and enforce laws, including checking legality and constitutionality of actions of the other two branches of government. The three branches of government should check each other’s performance. The executive and judicial branches should be held accountable to the people, by way of reporting to the people’s representatives in the legislative branch.
  

• Need for more participation in law making process
  Participation of concerned stakeholders in the law making is very important, as impacts of the law cannot otherwise be foreseen.  Foresee-ability is one of the cornerstones of criminal laws and other laws.  There has been some advances in participation in recent years, and this needs to be built on and regularised.
  
  

• Difficulty in accessing draft laws
  Civil society organizations often have difficulty getting access to documents or draft laws for which they wish to provide input. They sometimes need to use unofficial channels to access them, and this creates obstacles to open dialogue. The draft law on the trial of the Khmer Rouge leaders was not accessible and treated as confidential.  The Commune/ Sangkat Administration and Commune Councils Elections laws were not easily accessible to NGOs. NGOs proposed changes to these draft laws, but the inputs from NGOs were not considered.  NGOs do not expect that all their suggestions will be accepted, but appreciate feedback on why certain suggestions were not accepted.
  
  

• Excessive use of executive regulations undermining hierarchy of laws
  Executive regulations such as sub-decrees, proclamations, etc. have been excessively issued and used by the executive branch. This is due to lack of a clear law making process of lack of capacity in making laws.
  
  

• Inappropriate allocation of resources and timeframes for working on drafting laws and supporting regulations
  There is commonly a lack of effective task forces with sufficient support to work on reviewing and/or drafting new laws.  There is also no set timeframes for issuance of supporting regulations needed to implement specific laws.  As a result, many new laws remain unimplementable long after they are passed.
  
  

• Slow process of making the new Penal Code and Penal Procedures Code and the new Civil Code and Civil Procedures Code
  The Penal Code and Penal Procedures Code should have been prioritized as the first laws to be made after UNTAC, but it has taken the government almost a decade to prepare them.  There is now progress in preparing these laws, with the assistance from donors, though the need to work in more than one language necessarily makes this a tedious and time-consuming process.
  

• Gaps and inconsistencies in the laws
  There are gaps in existing legislation, including the UNTAC Laws, which are still in use. Some articles are open to different interpretations. The new laws are used together with UNTAC and SOC laws.

An outdated law on establishment and functioning of the courts, dating from the “State of Cambodia” period, is still in use. Consequently, defendants found guilty in the trial courts who appeal to the Court of Appeal are quite often detained for more than the maximum imprisonment period decided by the trial court, due to waiting for the Appeal Court to examine the appeal.

There are still many loopholes in the existing laws. For example, the term “anachar” meaning acts that cause serious social problems, is still not clearly defined. So judges are likely to interpret it at will, fairly or unfairly.

• Lack of information on and dissemination of laws and regulations
  While new laws and regulations are published in the Reach Kech (Royal Gazette), as required by the Constitution, their distribution is limited.
  
  

• No attachment of international agreements and treaties to the ratified laws
  Often, laws on approval of international agreements or treaties do not have the actual agreements attached to them. Furthermore, the agreements are hard, if not impossible, for the Cambodian public to obtain. This has made those ratified laws less meaningful.

• Strengthening Supreme Council of Magistracy
  The SCM is still ineffective. It now has an office, but disciplinary actions taken against judge’s infractions have been weak. About 27 judges have been reprimanded since 1998, but none have been sanctioned for corruption. The Amendments to the Law on SCM have many shortfalls.

• Need to further strengthen anti-corruption measures
  While NGOs welcome the plan to require judges and high-ranking officials of the judicial police to declare their property, they argue that it is not enough, as judges and judicial police are observed spending enormously compared with what they are supposed to earn.  NGOs believe that strengthening of disciplinary actions against judges and prosecutors, along with salary increases, will be more effective in addressing the problem.

• Insufficient allocation of budget to judiciary
  The biggest obstacle toward the reform is insufficient budget. The small budget allocation to the courts through the Ministry of Justice (about 0.3% of the total government budget) is insufficient.

• Low salary of judges and prosecutors
  Judges and prosecutors, like other full time public servants, are paid no more than US$25 per month. This, as generally acknowledged, leads to a prevalence of corruption in the judiciary.

• Reform of Court System
  Development is impossible without a capable and recognized court system. Investors have no confidence in the courts. The release of some suspects by the courts has been highly questionable. The incident in which the government ordered the re-arrest of prisoners released by the courts, and the withdrawal of the UN from the Khmer Rouge trial process, show lack of confidence in an incompetent court system in Cambodia. People wait for a time when laws applied to all equally.

• Lack of court messengers to deliver summons
  There are neither funds nor means of transport to take the accused from the prison to the court; the accused have often been asked to pay the transport costs. In addition, they often pay for the expenses of the prosecutor to do the investigation of their case.
  
  

• There is only one Court of Appeal in the country
  The outdated law on establishment and functioning of the courts, promulgated by the SOC government, which is still in effect, does not provide provision on maximum time requirement for the Court of Appeal to examine the appeals. As there is only one Court of Appeal, situated in Phnom Penh, there are often lengthy delays, as mentioned above.

• Judges
  While there is lack of judges, there is high concentration of judges, prosecutors and court clerks in the Phnom Penh Court. At present, there is no law on statutes of judges and prosecutors; all existing judges have “de-facto” status.  NGOs see the training of old judges who have no potential as unproductive.

While NGOs welcome the issuance of the Sub-decree on and the establishment of the Royal School for Judges, they have raised some issues of concerns in relation to the Sub-decree:

-   The school, while is managed by a Board of Directors, is seen to be under the control of the Council of Ministers, which is the executive branch of government;

-   Although prior agreement of the SCM should be sought, the RGC can for each batch of new students select 5 government officials who have a Bachelor of Law degree and work merit to be enrolled in the School for Judges.  This system is open to corruption.

-   The Sub-decree appears to discriminate against law graduates who have worked in legal aid organisations but, since they have not been admitted to the bar, are not eligible to apply for study in the School to become a judge. 

• Lawyers
  Cambodia still faces the problem of having an insufficient number of capable lawyers.

A positive development has been the issuance of a Sub-decree in September 2001, which will enable the formation of a training center for lawyers. The Center for Lawyer Training will be under the auspices of the Bar Association along with the technical assistance from the Ministry of Justice. However, there still exist many difficulties on how the center will be run and how it will be sustained.

Restrictions imposed by the Bar Association remain the chief concern of the Working Group on Shortage of Lawyers. The Bar Association continues to keep a very strict definition of who can be admitted to the Bar due to their controversial interpretation of article 32 of the Law on Bar Statutes. The Bar continues to be reluctant to admit graduates from law school, even if they have extensive experience working with different NGOs in the legal field, since it believes that it is hard to control the capacity and knowledge of these jurists unless the NGOs are in some way controlled by an NGO law. 

Although the Bar has prepared and shown its intention to start the training center by the middle of this year, concerns about ensuring an adequate curriculum and about insufficient budget exist.

• Certain donors while supporting reform, push for their own agenda
  The donors have pushed the Cambodian government to undertake legal and judicial reforms by taking part in various undertakings of the government. However, a lack of coordination between donors exists. Furthermore, some of them seem to guard their very specific interests. This does not help Cambodia or the government in the difficult and expensive task of implementing these reforms.

The following are some recommendations on the legal and judicial reforms:

Recommendations to government:

• The parliament should discuss checks and balances between the three top institutions: the legislature, the executive and the judiciary.  Executive control of the judiciary and legislature should be eliminated.
  
  

• The Council for Legal and Judicial Reform should conduct evaluation of their performance in the year 2002 against the planned reform actions in the GAP.
  
  

• 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.

Legal Reform:

• Publish attachments (the international agreements or treaties) to laws ratifying them.