INTRODUCTION
In their statement to the Consultative Group meeting in February 1999, Cambodian NGOs raised many issues related to the strengthening of the rule of law and improvement of the human rights situation. The NGOs provided the Royal Government of Cambodia (RGC) and the donor community with a large number of recommendations and are pleased to see that some of these have been carried out. While the achievements are not in themselves sufficient to strengthen the rule of law in Cambodia the NGOs appreciate the positive developments of the past year.
In order to effectively develop the rule of law and respect for human rights, donors now need to build on this progress by assisting and encouraging the government to improve the independence of the judiciary. The functioning of judicial bodies, efforts to combat corruption, the drafting of legislation and the police force, the national human rights commission and the planned tribunal for former Khmer Rouge leaders are also important to the rule of law.
Human rights groups welcome the informal quarterly meetings of a number of donor countries of governance and rule of law. However, the NGOs wish that these meetings would be formalized and that the RGC would be included in the dialogue. In some of the formal working groups goals, set by the RGC and the donors seem to be respected and progress has been made in the areas of forestry, social sector reform and fiscal and financial reform. The NGOs express the hope that due to the fundamental nature of the rule of law to all the areas of focus for the donors, formal meetings on the rule of law and human rights will commence shortly and that its counterpart, the council on judicial reform will be established by the RGC without delay.
KEY ISSUES
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Lack of judicial independence
While NGOs are pleased to note that the Supreme Council of Magistracy (SCM) the institution tasked with oversight of the judiciary, has met a couple of times in the past months, it is still a highly politicized and ineffective body which has not yet fulfilled its constitutional role. A functioning judiciary is one of the pillars of ensuring accountability and attracting foreign investment. Therefore, the lack of independence of the courts and the high level of corruption is a serious impediment to the development of Cambodia.
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Lack of separation of powers
In October 1999, the governor of Prey Veng province independently granted amnesty to 15 convicted people under the condition that they would stay clear of committing crimes in the future. The decision of the court was thus overruled, even though only the King is constitutionally authorized to provide amnesty. In January 2000, the Ministry of Justice ordered Judges to impose the highest possible penalties for those charged with a number of serious crimes. These are only two of many disturbing examples of the executive branch exercising its influence over the judicial branch. Although it is welcome that the government wishes to crack down on crime and
corruption, actions like these ignore the discretion of the courts to decide on trial procedures and on punishments, one of the
preconditions of a functioning, independent court system.
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Lack of due process
On the basis of an order signed by Prime Minister Hun Sen on 3 December 1999, a total of 51 people who had been charged with crimes such as armed robbery and kidnapping and who had been dismissed or acquitted by the courts either during the investigative phase or even after a trial and subsequent acquittal, were re-arrested. Rearresting people who were simply released by the courts rather than those against whom there is evidence of
corruption has intimidated judges from deciding for acquittals and thus fundamentally under- mined the court system. At the time of writing, 36 people were still in prison without charges, based only on the Prime Minister's order.
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Drafting of legislation
Since last year, the Council of Ministers has invited representatives of NGOs to discuss several pieces of draft legislation, including the Land Law and the law which will establish a tribunal to try former Khmer Rogue leaders. NGOs have submitted comments on these and other laws to the Council of Ministers and express the hope that their comments will be included in the final drafts.
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National Human Rights Commission
The existing human rights commissions are controlled by political parties and are there- fore not independent. Recent plans by the government to include human rights monitors on a commune and district level have fuelled fears among NGOs that these activists will be recruited from among former militia.
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Lack of police neutrality and independence
Currently, police and military officers are identified as loyal to political parties. Many receive postings and promotions based or partly based on their party membership, rather than on merit. In order to build effective and neutral police and armed forces as soon as possible, the law must stipulate that officers of the police and armed forces shall not be members of political parties.
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Incitement of violence against suspects of crimes by police authorities
In a new trend at least a dozen suspected thieves have been killed by mobs, mainly in Phnom Penh, in the past year. In some instances the police claimed that angry mobs attacked the suspects before they were able to protect them. However, human rights organizations and journalists have collected substantial evidence that in several of these cases the police were present at the lynching of suspects and did not act. In other instances suspects were killed due to excessive use of force by the police, some of which did not result from self-defense.
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Current draft law for trial of former Khmer Rogue leaders does not meet international standards for a fair trial
In view of the problems related to the independence of the judiciary mentioned above, there is a fear that the draft law gives too many opportunities for political influence in the decisions of the special tribunal.
RECOMMENDATIONS
In these meetings and in dialogue with and assistance to the RGC, donor countries and agencies should at a minimum take the following steps:
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Form an official donor working group on rule of law and human rights similar to those established after the 1999 Consultative Group meeting.
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Allocate funds and technical assistance to the RGC aimed at building the capacity and independence of the judiciary, under the condition that the RGC take steps in the next year towards de-politicizing and strengthening the SCM and the Supreme Court. A functional and independent SCM would be instrumental in combating
corruption and withstanding political influence on the courts.
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Enter a critical dialogue with the RGC in order to end government influence on the courts.
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Strongly condemn the government's campaign to re-arrest people and support a legal and effective crackdown on corruption.
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Urge the RGC to continue and expand its dialogue with NGOs when drafting
legislation.
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Allocate funds and technical assistance to create an independent police academy in order to build a well-trained, professional and neutral police force, which is better aware of human rights and law and provide technical assistance for the development of a Police Act establishing a legal base for the organization, function, powers, duties,
discipline, recruitment, training and other police issues. This should result, among others, in a strong reduction in the number of procedural errors committed by police officers and agents.
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Encourage the RGC to produce a new criminal law and a new criminal procedures law, in cooperation with civil society, which will be clear and in accordance with
international standards. Among others the criminal procedures law should make sure that there is a clear distinction between the tasks of the judicial police and those of the Military police (gendarmerie), in that the latter is only allowed to arrest military personnel who are suspected of having committed military offenses.
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Strongly condemn the incitement of violence against suspects of crimes by police authorities and the lack of action against perpetrators of mob killings. In order to prevent these cases from happening in the future, the police must be better trained and disciplined and have a sufficient legal base.
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Support the establishment of an independent human rights commission.
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The RGC and the United Nations should continue their dialogue until a tribunal is established which will carry out a trial in accordance with international standards.
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Individual governments should not participate in the trial without the blessing of the United Nations as this would provide false legitimacy to a tribunal that fails to meet the standards protected by the United Nations.
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