So Inn, Cambodia Defenders Project
Independence of the judiciary
In the past the executive and legislative branches of government heavily interfered in Cambodian courts. However over time this interference has decreased. This may be due in part to the executive and legislative branches of government better understanding the meaning and nature of independence of the judiciary. The judiciary itself has also better understood the principle.
However the evolution of independence of the judiciary in Cambodia is incomplete. Some basic principles are not yet being practiced. Three key points requiring reform are:
1. During trial, a presiding judge cannot proceed with a case without permission from the prosecutor. He or she is not likely to dare to open a trial if the prosecutor objects.
2. During trial proceedings, judges play the roles of both judge and prosecutor. Judges interrogate the accused in favour of the prosecutor. In that circumstance it appears that the judge has presumed the accused person is already guilty.
3. Article 138 of the State of Cambodia (SOC) Criminal Procedure Law provides more power to the prosecutor than the judge. Under this article a judge’s decision is legally insufficient without agreement from the prosecutor.
Equality before the law
Judges have tried to apply this principle, seeking defense lawyers to represent the accused, as required by law. Judges have also permitted accused to mount self-defence, or to choose a lawyer during trial.
In 1993 there were few defenders representing clients in the Phnom Penh Municipal Court. Since then the number has increased. This is one factor that has pushed the court to apply the above principle. However, Cambodian courts still suffer from two gaps in this area:
1. Under article 79 of the SOC Criminal Procedure Law, the petition of a prosecutor appealing a case has more power than the petitions of other parties.
2. In practice also the presiding judge always believes evidence and explanations by teh prosecutor over those of the defence lawyer.
Hence, judges do not stand on the principle of equality before law between the prosecutor and defence lawyer in criminal cases. This is because prosecutors have more power legally than defence lawyers. Accordingly, both investigating judges and trial judges have to improve implementation of the principle of equality and review article 79 of the SOC Criminal Procedure Law in order to ensure the application of this principle.
Presumption of innocence
Both investigating judges and trial judges have tried to apply this principle and we have obtained some good results, however more work is needed. In most cases investigating judges do not seem to investigate in a manner to find evidence to assist the accused, and as noted, in most of the cases trial judges interrogate to obtain evidence against the accused. Hence, in both the investigation and trial the accused is presumed guilty, contrary to the principle of presumption of innocence as stated by law.
Pre-trial detention and bail
Article 14 of the UN Transitional Authority for Cambodia (UNTAC) Transitional Law states that a request for bail during pretrial detention can be made only in the investigating stage, and it is not necessary to pay a bail bond. However, article 65 of the SOC Criminal Procedure states that a trial judge may grant bail, but only with the payment of a bail bond. In the later case the problem is that most of the accused are poor. Entire families of accused persons are forced to sell their property to pay a bail bond, increasing poverty.