PHNOM PENH - International legal experts are expressing deep concern over proposed changes to Cambodia’s legal system that critics say hand over too much power to the executive. At a meeting in Phnom Penh Tuesday, a group recommended the three judicial reform laws should be returned to parliament for further discussion. The proposed legislation is currently with Cambodia’s king awaiting his signature to become law.
The U.N. Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, told attendees at Tuesday’s meeting that the three laws on judicial reform undermined the principle of the separation of powers, and called on Cambodia’s constitutional monarch not to sign them, and to send them back to parliament to ensure public input.
“My request is in the sense that these laws, if they are enacted, there is a high level of chance that a lot of amendments should be done. So it’s a kind of anticipation - instead of signing these laws, he could send these laws again to the parliament, and restart the process with open debate as the government has done in many different kinds of laws in Cambodia,” she said.
The three draft judicial reform laws recently flew through parliament, the senate and the scrutiny of the Constitutional Council, before ending up on the desk of the king. Once he signs them, they will become law.
But the laws’ numerous critics say they are fundamentally flawed. They say they not only run counter to Cambodia’s Constitution, which guarantees the independence of the judiciary, they also conflict with Cambodia’s commitments to an independent judiciary as enshrined in legal instruments such as the International Covenant on Civil and Political Rights.
Knaul, a Brazilian judge who has been the U.N. Special Rapporteur since 2009, explained that the three laws could have a big impact on the Cambodian legal system.
“They deal with the structure of the court - how it works, how it should function, what are the borderlines between the powers, what kind of guarantees the beneficiaries of the justice system should have. This kind of law regulates the appointments process, the transfers, suspension, [and] disciplinary proceedings against judges. It deals with matters relating to enhancing transparency, the accountability of the judicial system. It defines and makes clear what’s the role of judges and the prosecutors in order to avoid confusion on the roles of each one,” she said.
The key failing is that they hand significant power to the executive; not least to the minister of justice and senior ministry staff, giving them wide-ranging powers in such key areas as budgets, complaints, promotions, and the removal or punishment of judges and prosecutors. In short, the laws would provide the executive a free hand to interfere in the judiciary.
Nadia Hardman is the program lawyer at the Human Rights Institute of the International Bar Association, or IBA, a British-based non-profit that supports the independence of the judiciary.
The IBA, which hosted Tuesday’s news conference, expressed its “deep concern over controversial judicial reforms, which could provide an excessive transfer of power from the judiciary to the executive”.
Hardman said codifying executive control into primary legislation over the judiciary created a series of documents that could, in theory, be used to enact future abuses. Those problems, she added, were eminently avoidable.
“If you’re going to formalize what goes on at a judicial level, especially in this day and age when there are so many best practice standards, or so many guidelines, there are so many initiatives at the U.N. and the regional level, countries have model legislation to draw upon - and at the moment you should really be relying on those best practice standards,” she said.
Piseth Duch is the trial monitoring coordinator at the Cambodian Center for Human Rights, or CCHR, a local non-profit that has advocated extensively on judicial reform.
With the law on the verge of being signed, he says the way forward now lies in continuing to try to talk to the government, and in establishing strategies with other civil society organizations to tackle the issue together.
“And also keep following up closely on the implementation of these laws when they pass into law soon, and then we can document the issues or cases that violate the independence of the judiciary, and then we can call with the evidence-based documents to call for the amendment in the future - because if the government is willing to make the judiciary purely independent, it will be a good starting point for the Cambodian people as a whole,” said Duch.
For its part, the Cambodian government says it is satisfied with the provisions of the law.