Asian Human Rights Commission
In December 2001 thirty participants gathered in Sihanouk Ville for two days to review the progress of judicial process in Cambodia since the adoption of the 1993 Constitution. The meeting was jointly organised by the Cambodian Defenders Project and the Asian Human Rights Commission. Participants included senior officers from the Ministry of Justice, Ministry of Interior, Prosecutor¡¦s Office, the Courts, and representatives from the legal profession and civil society. Participants agreed to assess the judicial process in accordance with article 2 of the International Covenant on Civil and Political Rights (ICCPR). Cambodia has ratified the ICCPR and incorporated it into domestic law (article 31 of the Constitution), together with all other international human rights instruments.
The judicial process in Cambodia includes investigation of crimes and allegations of violations of rights, the prosecution of offenders, and conduct of trials by the judiciary. The participants went through a list of questions to review progress in these areas, and after careful study and discussion agreed that there has been a degree of progress since 1993. They concluded:
1. Access available to lawyers to intervene on behalf of their clients at the pre-trial and trial stages has increased. Perhaps the most significant progress is the development of an independent legal profession, which did not exist prior to 1993. Within a short time the legal profession has established itself as an important part of Cambodian life. While there is enormous room to improve, it can be said that the potential of the legal profession to intervene in the judicial process is already significant.
2. Education and training among the police has increased. However, due to the continuance of the police organisation much as it existed before, the progress needed to safeguard the rights of persons and bring the police force to a professional standard¡Xin keeping with the international obligations that Cambodia has undertaken¡Xis great.
3. Discussions among prosecutors about the problems that they are facing and ways to find solutions have increased. Interaction between the investigating police and prosecutors has also expanded.
4. Judgments are now generally handed down in writing. The reasons for judgments are also now usually given. Overall, prewriting of judgments and discussion of cases before trial appears to have decreased. The access of lawyers to the judiciary has also improved.
5. The real generator of change in the judicial system has been the Cambodian people themselves, who have been pushing very hard for substantial changes. The sharpest expression of the people¡¦s wish for change has come from large numbers of volunteers taking various positions as lawyers, paralegal staff and others doing their utmost to assist litigants to find justice. There is a tremendous movement for justice from below. This should be recognised and supported both at the national level and by the international community. A few officers have responded positively to this popular push for a better system of justice.
The participants noted some grave hindrances to the progress of the judicial process:
1. The total budget for the Ministry of Justice is just 0.3% of the national budget. It is impossible to expect great changes within the confines of such a paltry amount. Any real improvements require a substantial increase in the government¡¦s budgetary allocation to the Ministry of Justice. The participants noted that in the last Consultation Group Meeting, reform of the judiciary was recognized as one of the priorities for assistance to Cambodia. In other statements from the international community, there have also been calls to recognise and support judicial reforms. Under these circumstances, an increase in the budgetary allocations for judicial reform needs to be pursued with seriousness.
2. The draft criminal procedure and penal codes have not yet been made into law. The United Nations Transitional Authority for Cambodia (UNTAC) Transitional Law and the State of Cambodia (SOC) Criminal Procedure Law remain in force. The UNTAC Transitional Law was intended only for the period of UNTAC operations. It recognises only about 35 criminal offenses. The SOC criminal procedure law was also meant to be an interim measure. It does not conform to international standards: procedures for fair trial, pretrial detention, powers of the police and prosecutors, and other procedural matters to ensure due process are inadequately stated or absent altogether. The continuance of these laws remains a major obstacle to the development of the administration of criminal justice in Cambodia. The draft criminal procedure and penal codes have been talked about for several years now, yet there seems to be a lack of urgency to develop and adapt these codes to Cambodian conditions.
3. Considerable confusion surrounds the arrest of persons before the completion of investigations. Police arrest persons halfway through investigations then complain that 48 hours is not long enough to complete their investigations. It needs to be stressed that persons should be arrested only when adequate evidence has been obtained. In many countries the time period allowable for police detention is much shorter than 48 hours. Under no circumstances should the 48-hour rule be extended. Sometimes suspects are arrested even before criminal investigation has begun, in order to elicit information from the accused. This technique violates the constitutional recognition of the presumption of innocence. It also paves the way for use of pressure, physical or otherwise, to obtain confessions or admissions from the suspect. Fair trial cannot be achieved until such practices are eliminated.
4. Although there had been some degree of improvement regarding the granting of bail, obstruction of that right is again increasingly common. A circular issued by the former Minister of Justice forbidding bail to any person accused of a felony, though illegal, has had the effect of severely reducing the incidence of bail granted to those accused of serious offenses. Thus, the actual law laying down the guidelines for the granting of bail is being frequently ignored.
5. The institution of the investigating judge is problematic. In Cambodia it does not operate in the manner of its French counterpart, where an elaborate mechanism for criminal investigations exists to examine evidence at the early stages and determine whether a person can be charged. Within that system, developed over hundreds of years of practice, there is very sophisticated collaboration between the investigating police and investigating judge. The lack of such in Cambodia has led to confusion that may need to be resolved in the future. Investigating judges are also overworked, creating long delays in the disposal of cases.
6. The appeals process requires improvement. Time limits on the hearing of an appeal must be clearly set out and followed. Both the law and practice in Cambodia is that a person is confined in prison while an appeal is pending if the person was also in pretrial detention. If the appeal is delayed, the accused may remain in prison for a longer period than that to which they were originally sentenced, and even for a period longer than the maximum prescribed sentence for that offense. As a consequence, a person may be compelled to withdraw an appeal even though innocent of the offense.
7. Many forms of interference in the execution of judgments prevail. These come from government ministries and political authorities, such as provincial governors. Some prisoners released by the court have remained imprisoned due to such obstruction. In some cases higher authorities in Phnom Penh have had to intervene. Such interference affects the basic rights of people as well as the independence of the judiciary.
8. Other reforms are needed in the areas of trial in absentia and independence of the judiciary. Trial in absentia should be avoided unless absolutely necessary, in which case procedure must be developed to guarantee the right to a defense of the accused. To guarantee the independence of the judiciary, the law on the statute of magistrates must be passed as soon as possible.
The consultation grew out of dialogue between various people involved in judicial process in Cambodia with a view to improving the system and its performance at every level. The discussion was frank and open. There was a spirit of self-criticism and a desire to look forward to better times. This review, started at this meeting, should be continued in more depth and with more participants. It would also be useful for different parts of the justice system to carry out their own internal reviews. Above all, it is necessary for the independent legal profession to take a very active part in promoting such a review. It is likely to benefit Cambodia by raising many creative insights of people engaged in judicial reform since 1993.