Ith Rady, Cambodian Ministry of Justice
Under the 1993 Constitution, Cambodia adopted policies of liberal democracy, political pluralism and free market economics. Correspondingly, we need a consistent legal system to ensure and enable the country to be developed.
The Ministry of Justice was legally established and promulgated by Royal Decree No. NS/RKM. 0196.04, to carry out and reform the Cambodian legal system. Its role is to draft legislation, govern administrative work and provide technical support for all judicial tribunals, to enable the judicial system to be transparent. Its specific duties include the following:
1. To administer the judicial process, including civil and criminal cases, administrative disputes, and labour and commercial cases.
2. To enforce judgments via detention centers and prisons.
3. To establish legal policies and other rules regarding adjudication.
4. To ensure, in preparing and enforcing laws, the consistency between civil and criminal procedure, administrative law, labor law and commercial law.
5. To govern and issue the list of criminal records.
After 1993 tribunals at all levels were brought to conform with the principle of independence of the judiciary. Accordingly the Ministry of Justice made an effort to reform the judicial system in five areas: the institutional and financial framework, legislative framework, human resources, material resources and information.
Institutional and financial framework
The lower courts were separated from the legal framework of the provinces and cities. The appointment of court personnel and the judicial budget were allocated separately from the controlling provincial authorities.
The Ministry of Justice drafted legislation to reform the structure and activities of tribunals. The law on the appointment and activities of tribunals has legally determined the structure and competence of all levels of courts.
Reform of the judicial system requires adequate skilled human resources. The Ministry of Justice has tried to open training for judges and prosecutors with the cooperation of non¡Vgovernmental organizations and international agencies. Exchange programmes have been set up with France, and Japan has granted numerous scholarships for judges and prosecutors to study technical aspects of the legal profession. The Ministry of Justice has trained 42 new judges and will continue to do so into the future.
The Ministry has focused on building and repairing courthouses. So far we have built two new courthouses at Prey Veng and Takoe provinces under the national budget. Some courthouses have been repaired in Kampong Cham, Kampong Spue, Kampong Thom Kampong Chhnang, Kandal and Phnom Penh. The Ministry has also provided other materials for use in courts, such as typewriters and computers. The Ministry has previously provided motorbikes to all courts and prosecution offices, and cars to a number of offices.
The Ministry of Justice has always paid attention to information distributed to all levels of courts and prosecution offices, especially on the norms necessary for law enforcement. The Ministry has photocopied and sent details of any new laws adopted and promulgated, sub¡Vdecrees, orders, regulations and other standards to provincial courts and prosecution offices. In addition, the Ministry has taken into account the gaps between laws by issuing regulations to advise courts and prosecutors in that regard.
The Ministry of Justice has paid attention to the laws necessary to ensure and better strengthen the rule of law in Cambodia. In 1993 the Ministry drew up plans to draft a number of key laws, including codes of criminal law, criminal procedure, civil law and civil procedure. Laws introduced to date are the
1. Law on the Supreme Council of Magistracy (adopted 22 December 1994),
2. Law on Suppressing of Kidnapping and Trafficking in Persons (adopted 16 January 1996),
3. Law on Narcotic Drugs (adopted 9 December 1996),
4. Law on Organizing and Functioning of the Constitutional Council (promulgated 8 April 1998), and
5. Laws already drafted, including those on the role and duties of the judiciary and the statute of judges and prosecutors.
Cooperation in making laws
The Ministry of Justice signed an agreement with the Japanese to draft key legislation for Cambodia, including the civil law and civil procedure codes and other related laws. So far 80 percent of the drafts have been completed, and we hope they will be finished in 2002. The French also signed an agreement to assist the Cambodian government on criminal law and criminal procedure codes. The Ministry of Justice has revised and sent a draft of the Code of Criminal Procedure to the Cabinet of Ministers Council. The Ministry of Justice has examined and finished 70 percent of revisions to the Code of Criminal Law.
The Ministry of Justice has paid more attention to enforcing laws. Since 1993 Cambodia has been using the UNTAC (United Nations Transitional Authority for Cambodia) Transitional Law and other laws that, related to criminal law, were revised and adopted by the State of Cambodia. The Ministry has sought to enable law enforcement officers to better enforce laws, especially against criminal offenses such arrest, detention, prosecution and imprisonment. The National Assembly has also passed a law proposed by the Ministry amending article 51 of the Statute of Government Civil Servants to allow for prosecution of any civil servant without approval from his or her boss.
After frequent discussions, especially in the General Assembly, the Ministry of Justice together with the Ministry of Interior reduced the period of detention without charge to 48 hours. Pretrial detention has been applied as required by law, as the Ministry of Justice has issued regulations to instruct judges and prosecutors to do their best not to detain accused persons beyond the period of detention required by law (Regulation No. 13/RB/6160 of 1994, Letter No. 198/96 of 1996, Regulation No. 04/97 of 1997). Besides this, the Ministry has issued letters at the provincial and municipal level to remind judges and prosecutors not to detain accused persons over the period of detention limited by law. This issue was also raised for discussion in the annual General Assembly in 2000, where it was decided to end detention beyond the period of limitation, as required by law. Notwithstanding, this problem has not been completely solved.
The treatment of convicted persons is an important point for legal reform. Although the existing laws in Cambodia do not refer to punishment by hard labour and convicted persons just lose their freedom of movement but are otherwise entitled to their usual rights, food and accommodation for prisoners remain outstanding issues. The Ministry of Justice has also paid more attention to pardoning and paroling of prisoners, as well as reducing sentences. Twice each year the Ministry requests the King to pardon and parole convicted persons who have followed the conditions of their imprisonment.
In short, the law in Cambodia is truly developing but still has not reached the point we are aiming for. Some law enforcement officials have not seriously fulfilled their roles. Some¡Xincluding judges and prosecutors – have not thoroughly studied existing laws. They enforce laws based on their own habits and understanding, in some cases leading to contradictions with the actual law. Shortfalls in enforcing laws have also been caused by gaps between laws that have been difficult to interpret and apply. Shortages of resources and finance have been key factors that have led to a lack of commitment to duties by law enforcement officials.
The Ministry of Justice has tried its best to reform and strengthen the court system and improve the knowledge of judges, prosecutors and court clerks, including other supporting officials such as lawyers and judicial police. Having capable human resources and sufficient laws are factors for effective implementation of laws and the strengthening of the rule of law.