Dr Lao Mong Hay, Former Head, Legal Unit, Centre for Social Development, Cambodia
A brief reference to Cambodia’s recent history is required for an understanding of its institutions of the rule of law and their functioning. Cambodia used to be an empire that dominated almost the whole of mainland Southeast Asia. The influence of Indian culture and civilization was catalytic in its rise to dominance, and in all probability Cambodia had adopted the Indian legal system based on the laws of Manu. Cambodia’s power declined continuously from the 14th century onwards, while Vietnam and Thailand were on the rise. From early to mid 19th century Cambodia fell under joint suzerainty of Vietnam and Thailand. In the second half of the 19th century, alongside Vietnam and Laos, Cambodia fell under French colonial rule.
In the early 1920s the French introduced a penal code and civil code modeled on their Napoleonic codes. However, some Cambodian customs such as polygamy were also incorporated into these codes. Later, the codes of procedure and other laws were gradually introduced. In 1947 while still under French rule, Cambodia adopted a constitution that transformed it from an absolute to a constitutional monarchy with a multi-party democratic system of government. The constitution also recognized and protected the basic rights and fundamental freedoms of the Cambodian people. However, up to the end of French rule there were two justice systems operative: one for French and other foreign nationals, and the other for the indigenous Cambodian people. This dual system was abolished after Cambodia recovered its independence in 1953.
After the French departure, Cambodia seemed to have inherited the basics of the rule of law. Though the codes and laws were amended with the change of times, the French civil law system continued to function until 1975 when the Khmer Rouge rose to power and created a new communist state, in which Cambodia was swept clean and there was no law. The Khmer Rouge issued just one single law: the constitution, which they did not even care to respect themselves. They collectivized everything, including food. There was no private property, no currency and no market. The whole country was turned into a giant work camp where people were forced to work like slaves under very harsh discipline. People found misbehaving, deviating from party directives, stealing or idling were punished with harsh reprimands, starvation, imprisonment, torture, but mostly death.
The Vietnamese troops ousted the murderous Khmer Rouge regime from power in 1979 and a new communist regime, the People’s Republic of Kampuchea (PRK), was put in place. The Khmer Rouge put up resistance and Cambodia was in war again. Gradually, the Vietnamese troops and the PRK asserted their control over almost the whole of Cambodia.
A type of justice system modeled on the Vietnamese-Soviet system was introduced by the PRK. Courts were created and judges were appointed. A constitution was adopted in 1982. It reflected the communist character of the regime: the dominance of the Kampuchean (or Khmer) People’s Revolutionary Party, a Marxist-Leninist party founded in 1951, which ran all government institutions from top to bottom; collectivization of factors of production; absence of private property; and regimentation of social life. In 1989 a constitution was adopted to supersede the 1982 Constitution. The PRK was transformed into the State of Cambodia (SOC) which became less communist with the introduction of a degree of liberalism and a market economy. Private ownership of farmlands that had been distributed to members of farm collectives was now constitutionally recognized. Private ownership of other factors of production was also recognized. State owned enterprises were now being privatized.
After the adoption of the 1982 Constitution the government successively enacted a number of laws or decree-laws such as the family law, contract law and land law. However, there were no laws on the rules of procedure for both criminal and civil cases. Judges and prosecutors were mostly sent to Vietnam for training. Students continued to enroll in law courses and some were sent to study in Soviet bloc countries: most to the Soviet Union. However, in the communist days to study law was a student’s last choice. It was only after they had failed to get places in other courses that they enrolled to study law. Courts were part of the communist government and judges were placed under provincial governors or ministers depending on the level of those courts. The police were also superior to courts. People could be locked up for years sometimes without any trial, or jailed with summary trials.
In 1991 the protracted war in Cambodia came to an end. At the end of a prolonged peace process, the warring factions, together with representatives of another 18 countries, including the big five powers, signed two peace accords at the end of a conference held in Paris. These accords provided for the presence of a UN peacekeeping force named the United Nations Transitional Authority in Cambodia, or UNTAC, for 18 months in 1992 and 1993. UNTAC was charged with keeping the peace, running the country and organizing a general election.
According to the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, Cambodia was to be a liberal democracy respecting human rights and governed by the rule of law. The agreement emphasized that, because of Cambodia’s tragic recent history, “special measures” were required “to assure protection of human rights, and the non-return to the policies and practices of the past” (last paragraph of preamble). The participants in the conference offered, among other things, to “commit themselves to promote and encourage respect for and observance of human rights and fundamental freedoms in Cambodia, as embodied in the relevant international instruments to which they are party” (Final Act of the Paris Conference on Cambodia, para. 12). Cambodia undertook to respect human rights and fundamental freedoms, adhere to all relevant international human rights instruments, and support the right of all Cambodian citizens to undertake activities which would promote and protect these human rights. For its part, the UN Commission on Human Rights undertook to monitor closely the human situation in Cambodia after the end of the transitional period. It should be added that the international community also pledged to help rebuild and develop the devastated country. There was also a commitment to create an independent judiciary to protect human rights.
Under the same accords a Supreme National Council of Cambodia or SNC was formed, comprised of the four warring factions: the SOC, Khmer Rouge, Khmer People’s National Liberation Front (KPNLF) and Funcinpec (Front Uni National pour un Cambodge Indep?ndant, Neutre, Pacifique et Coop?ratif). During the transitional period the SNC was the embodiment of the sovereignty of Cambodia. In order for it to accomplish its mission, the SNC was to delegate to UNTAC powers of direct control over five key areas of national administration: foreign affairs, defence, finance, public security and information. UNTAC found existing Cambodian legislation wanting, and in order to ensure the rule of law, it got the SNC to enact, in 1992, a criminal law and procedure for the transitional period, officially known as Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period. This piece of legislation has since been commonly known as the UNTAC Law. The following year, the SOC enacted its own Law on the Criminal Procedure, commonly known as the SOC Law.
Parallel with its other activities UNTAC then conducted a mass human rights awareness campaign. It ran a radio station for this purpose and others. Human rights NGOs and free press were born as a result of wanting to join in these tasks. In May 1993 the election of a constituent assembly was successfully held. However, the Khmer Rouge, the second strongest warring faction, withdrew from the peace process, ceased cooperation with UNTAC and boycotted and disrupted the election. Four out of 20 parties won seats with Funcinpec holding 58 and the Cambodian People’s Party (CPP), the reinvented SOC, 51. The CPP in effect held control over the administrative and security apparatus throughout most of the country. In September 1993 the Constituent Assembly adopted a constitution and turned itself into the National Assembly. A new national government of all four parties under the collegial leadership of Funcinpec and the CPP was formed. UNTAC ended its mission and departed, leaving a small team behind. Its work on human rights was handed over to the Geneva-based UN Centre for Human Rights, which opened its office in Phnom Penh. A special envoy of the UN Secretary-General for human rights in Cambodia was appointed.
Before closing this introduction, it should be added that Cambodia was not abandoned to rebuild alone. State signatories to the Paris Peace Accords and other members of the international community have, since UNTAC times, continuously provided Cambodia with assistance amounting to some USD 500 million a year for reconstruction and development. However, until very recently the rule of law has not received as much attention and assistance as other areas of reconstruction and development.
The 1993 Constitution
The current Constitution of Cambodia is very short. When first promulgated in September 1993, it had 139 brief articles. It now has 158 articles after its amendment in 1999, which created an upper chamber of Parliament: the Senate. In 2004 there was again another change to the Constitution to break a deadlock in forming a new government.
After the 2003 general election no party had an outright two-thirds majority with which to form a government as required by the constitution. A protracted deadlock ensued until in June 2004 Funcinpec agreed to join the winning party, the CPP. The leadership of the two parties struck a deal and to ensure that they could get sufficient support from the National Assembly, they had the parliament adopt an “Additional Constitutional Law.” This law was not an amendment to the Constitution; rather, it was a distinct piece of legislation adopted to create a “package vote” for the same leadership instead of separate votes as provided for in the 1993 Constitution. Under that previous arrangement, the National Assembly should first elect its president and two vice presidents separately, by two-thirds majority. These persons then unanimously nominate a person as premier for the king to appoint. The premier then selects a Cabinet with two-thirds approval from the National Assembly. Under the deal that led to the new law, this process was bypassed so that the former prime minister and president of the National Assembly could simply retain their positions.
The adoption of this additional constitution law has created an anomaly. It is not a constitutional amendment as its adoption did not follow the constitutional procedure, which requires a fully-formed National Assembly with its leadership in place first, as at the time the assembly had not been fully formed. Some have seen this additional constitutional law as another constitution and have questioned its constitutionality. Others have seen it as yet another step towards dictatorship.
The 1993 Constitution, even with the additional constitutional law incorporated, is basically an exposition of principles rather than a constitution. It has left a lot of room for interpretation and detail. For instance, article 41 says that, “No one shall exercise this right [to freedom of expression, press, publication and assembly] ¡K to affect the good traditions of the society…” But what is meant by “good traditions”? Article 20 says that, “The King shall grant an audience twice a month to the Prime Minister and the Council of Ministers to hear their reports on the State of the Nation,” but does not indicate who is responsible for seeking these audiences. Article 41 says that, “The regime of the media shall be determined by law,” but in article 12 of the press law as adopted there is a provision prohibiting the press from publishing “information which may affect national security and political stability”. The constitution itself prohibits the exercise of freedom of expression, press, assembly and publication that may affect “national security” but not “political stability”. What is meant by “political stability” anyway?
The constitution has nevertheless fulfilled Cambodia’s obligations under the Paris Peace Accords and, together with these accords, has served as the basis for the development of human rights, democracy and the rule of law in Cambodia. According to it, Cambodia is governed by the rule of law. It recognises and protects “human rights as stipulated in the United Nations Charter, the Universal Declaration of Human rights, the covenants and conventions related to human rights, women’s and children’s rights” (article 31). There is a clear separation of powers with an independent judiciary. Judges and prosecutors are independent from the government. A supreme judicial body called the Supreme Council of the Magistracy (SCM) chaired by the king is responsible for their appointment and discipline. The other two branches are the bicameral parliament: the National Assembly and Senate. The National Assembly is periodically elected by a universal suffrage. This assembly elects the government. The rule of law is further consolidated by the constitutional affirmation of basic rights and fundamental freedoms, including the presumption of innocence, the invalidity of evidence obtained by torture, the proof of guilt beyond reasonable doubt, and the clear responsibility respectively of the king and of the courts for the protection of the rights and freedoms of the Cambodian people.
The Constitutional Council
The 1993 Constitution has created a Constitutional Council modeled on the French equivalent to ensure the constitutionality of laws, rules and regulations. This council also serves as the court of final appeal for electoral disputes. It is composed of nine members, three of whom are appointed by the king, three by the National Assembly and three by the SCM.
The constitutional role of this supreme body seems anomalous right from the start. Article 136 of the constitution states that, “The Constitutional Council shall have the duty to safeguard respect of the Constitution, interpret the Constitution and laws adopted by the National Assembly and reviewed completely by the Senate.” It also “shall have the right to receive and decide on disputes concerning the election of deputies and the election of members of Senate”. Then in article 150 it states that, “Laws and decisions by the State institutions shall have to be in strict conformity with the Constitution.” However, the law concerning its organization and functioning has limited its role in ensuring the constitutionality of laws and interpreting the constitution and laws. As it stands, this law does not give the council any role to ensure the constitutionality of “decisions by the State institutions”.
It is impossible to raise the issue of the constitutionality of such decisions when these decisions affect the rights of citizens. Furthermore, access to the council is limited to a number of institutions: the king, president of the Senate, president of the National Assembly, prime minister and the courts. Individual members of the Senate or National Assembly do not have this right unless their petitions are signed by at least one quarter of the total number of senators or one tenth of the total number of members of the National Assembly.
It is also impossible for citizens to directly raise issues of the constitutionality of laws with the council. They have to file their complaints through one of the legally entitled persons. Under article 19 of the 1998 Law on the Organisation and Functioning of the Constitutional Council, they may raise the issue of constitutionality if they are a party to a trial and consider that a law enforced by a court or a decision of an institution violates their fundamental rights and liberties. There is an anomaly whether the constitutionality of a decision of an institution may be raised with the council. Such a petition must be accepted by the concerned court, which then submits “the law” to the Supreme Court. The latter then examines its admissibility and submits its views to the council. It is not clear whether the concerned court and the Supreme Court would entertain cases of “decisions by state institutions” for the council to pronounce on their constitutionality.
On top of this procedural obstacle, the political nature of the institutions that facilitate access, except the king, creates another difficulty for potential petitioners. A petition will not be entertained by ruling party members when its outcome may run against laws or decisions adopted by the government or favourable to it. Opposition members may entertain it but then petitioners may be seen as siding with the opposition, which they may not like. Then there is the political affiliation of the council members themselves. Like all other institutions of the country, the council is composed of political appointees. The king is an apolitical institution and his three appointees are generally seen as having no political affiliation. But the other six members are affiliated to the CPP and have not shown their independence from their party so far. Almost all of them have limited knowledge of law or experience in the legal field. None of them have any constitutional expertise. Several of its members do not have the constitutionally required qualifications (degree in law, administration, diplomacy or economics).
Since its creation in 1998, the Constitutional Council has received very few petitions, and almost all of them have been from the opposition party. None has come from a party to a trial in court. The council and its procedures for petitions are little known. In addition, perhaps only one of all petitions received has met with a positive decision. For instance, it ruled against a legal provision reserving the post of Minister for Women’s Affairs for a woman. Its decisions are very brief and are not supported by any lengthy analytical reasoning. None of the decisions have been considered landmarks. Some petitions have been rejected on procedural grounds.
The justice system
With the collapse of communism in the world and of the Soviet Union itself, and with Cambodia’s undertaking to adopt liberal democracy, the Soviet/Vietnamese-modeled system of justice needed to change. France, which sponsored and co-chaired the Paris Peace Conference, moved to restore its influence in its former colony. One of its strong entry points was the legal system. It began to provide technical assistance to the Ministry of Justice and to help reopen the Faculty of Law and Economics. This Faculty, which has now become a university, has since been linked to the French University of Lyon. In February 1993 the SOC enacted two laws: one on criminal procedure and the other on the organization of the courts. The criminal procedure is very much a shortened version of the French Criminal Procedure Code. The organization of the courts is again the basic structure of the French courts. The French also helped to draft a penal code and a code of criminal procedure. These codes are basically modeled on the French codes. These codes are still awaiting the Cabinet’s approval and adoption by the Parliament.
The French then began to sponsor the training of the national police. They also provide training to another police force, the military police, which was modeled on their gendarmerie or provincial police force.
Due to that French help and to the familiarity with the French system of survivors of the Khmer Rouge regime, Cambodia reverted to the French civil law system. However, many Anglo-Saxon trained Cambodians are challenging this system and are advocating for the incorporation of elements from the common law system. Some have requested the abolition of investigating judges, the adoption of the accusatory system of trial and a law on evidence.
In its final provision, article 158, the 1993 Constitution has stipulated that past laws, rules and regulations that are not contrary to its spirit and letter are to remain in force. So far, their constitutionality has not been verified, affirmed, or challenged. SOC laws, rules and regulations and the UNTAC Law have continued to be in force. Because of the lack of laws to meet the country’s needs, some law officers have made references to laws dated from the pre-communist era, as has the law governing the trial of former Khmer Rouge leaders.
Although new laws have successively been enacted since UNTAC times, the three governments since have not had any plan for legislation in their political programmes. Only external pressure and necessity of circumstances have compelled the government to enact laws. For instance, the first post-UNTAC government had to speedily enact an anti-drug law at the insistence of the American administration. The same government, when still facing the Khmer Rouge armed struggle, hastily enacted a law outlawing the rebels. A law to extend the detention of one Khmer Rouge general, Ta Mok, did not take many weeks. But an anti-corruption law has not been enacted yet even though all three governments have promised to do so. It has been drafted and redrafted about a dozen times over the last ten years. Lately, an anti-terrorism law has been drafted, as has a law on demonstrations, and these two bills seem to have higher priority.
The law-making process starts at the concerned government department. The draft then goes to the Cabinet. Cabinet gets its Council of Jurists to look at it before giving its approval or sending it to an inter-ministerial committee to review before Cabinet approval. After Cabinet approval the bill then goes to the National Assembly to be looked at by a specialized committee before it is submitted to the plenary session of the National Assembly for adoption. Earlier there was little or no public participation in the law making process. However, thanks to pressure from donor countries, public participation is now allowed. Yet, this participation is not a rule and, most of the time, bills remain secret. The draft anti-corruption law is perhaps an exception, for so far there have been at least a dozen meetings to talk about the issue and draft the law.
The law-making process is basically French:
1. There is no publication of draft laws or bills;
2. There are no definitions, except lately when some definitions have appeared after persistent demands from Anglo-Saxon trained lawyers;
3. There is no schedule enumerating provisions of other laws and/or laws that are amended or annulled by the new law;
4. There is no provision for the review of laws and no flexible timeframe for their enforcement;
5. There are limited details, and executive orders are needed for enforcement;
6. There is no parliamentary verification as to whether or not these executive orders are in conformity with concerned laws.
Once they have been enacted, laws are not readily disseminated: law enforcement officers have to secure copies of the law via their own ways and means. According to article 93 of the constitution, all laws must be published in the Official Gazette, but the gazette was not published regularly until 1998. A government publishing house is responsible for this publication, but it is not widely known. The government runs a Laws and Regulations website, but this site is not updated. Not many laws are posted there anyway.
Cambodian lawmakers lack initiatives to enact new laws when circumstances require, even though they have national and foreign legal experts to help them. So far, most laws already enacted or pending enactment have originally been drafted in English or French by foreign experts and then translated into the Khmer language. This has posed two problems: firstly, the problem of translation, and secondly, many Cambodians are finding it difficult to understand the new Khmer phrases created for the new laws. Most of the time the original drafts are drastically changed or heavily edited before relevant ministers and/or the Cabinet can accept them and give approval. The translation, the changes and the editing have at times made some points of these laws unclear or ambiguous, or difficult to enforce. At times some key points have been taken out altogether.
There is also a general apathy among law drafters, law makers and law enforcers to change or improve laws or alter some provisions to make them more just or easier to enforce when flaws and shortcomings have been spotted. For instance, under the UNTAC Law when one person steals without using violence or breaking into a habitation, shop or storehouse, the act carries a sentence of up to three years in prison. When two or more persons commit the same offence their crime carries a heavier sentence of five to 10 years, for which no bail is possible, and the sentence cannot be reduced below the minimum or made a suspended sentence. There have been many petty thefts committed by two or more persons and when arrested and found guilty they are sentenced to five years imprisonment or more. This punishment has been widely acknowledged as too harsh, yet no official concerned has cared to propose any change so as to make it more just. The crime of bribery in the same UNTAC Law, which was meant for members of the four Cambodian warring factions in the transition period, also needs to be changed to apply to the new conditions.
Somehow, with the push and shove and assistance, in the post-UNTAC period up to the end of 2005 Cambodia enacted some 180 new laws, the latest one being the anti-domestic violence law. Altogether they are not voluminous, though. An advanced law student of average intelligence, fluent in Khmer language, can cover all these laws within weeks, let alone months. Towards the end of 2005 the Cambodian Office of the High Commissioner for Human Rights compiled them together with international human rights instruments in one single thick volume of some 2,650 pages for dissemination to law enforcement officers and lawyers. This should be the job of the government, not that UN agency.
The push and shove over the last decade is yet to get the government to enact some crucial laws. These laws include the penal code, the code of criminal procedure, the civil code and code of civil procedure, the law on the organization and functioning of courts, the law on the amendment of the Supreme Council of Magistracy, the law on the status of judges and prosecutors, and the law on anti-corruption.
And to have laws is one thing, but to enforce them is another. Law enforcement is an even more difficult task when a culture of obedience to law has yet to be built. In the minds of western people who have come to help Cambodia in the legal and judicial sector, there is an assumption that when laws are enacted, they are automatically and effectively enforced and the majority of citizens will abide by them. The Americans were satisfied with the enactment of the anti-drug law. The environmentalists were also satisfied when the environment protection law was passed and other laws and rules and regulations declared areas of the country “national parks.” However, they were all disappointed when there was little effective enforcement of these laws. Drug trafficking has continued and spread; illegal logging in national parks has continued. It is believed that this lack of enforcement stems from corruption in government: law enforcers make efforts to enforce laws that could bring benefits to them, or when pressurised to do so.
This complacency contrasts with the pre-war period. Then there were more efforts to enforce laws, rules and regulations, even though there was also corruption. The change may boil down to a change of culture. In those days, the culture of obedience to law was much stronger. People were scared of the police when they broke the law. Now there is hardly any such culture. The culture of obedience to law was thoroughly destroyed by the Khmer Rouge in the second half of the 1970s, the continued communist indoctrination and warfare in the 1980s and the ensuing misery and suffering. Survival instinct was–and still is–very strong. It has been widely acknowledged by many Cambodians that there has been a sharp moral decline, a “moral breakdown” in their society. Without morality, it is difficult to expect any obedience to law. The absence of the culture of obedience to law and Cambodia’s tattered value system is affecting the functioning of all state institutions and in particular the institutions of the rule of law.
Like the law-making process, the features of law and the system of justice in Cambodia are very much based on their French counterparts, but the Cambodian system of justice differs from the French system in that it is a single system while the French system is a dual system. The French system is composed of administrative justice and judicial justice. In addition, Cambodia’s system differs in that it has not as yet established separate specialized courts as in France.
There are three layers of courts:
1. The courts of first instance composed of two municipal and 20 provincial courts and a military court;
2. The Appeal Court; and,
3. The Supreme Court.
Cambodia is now planning for the creation of specialized courts, including a labour court and a commercial court. All the 20 provincial courts are located in provincial capitals. They are located far from people living in the rural areas and are not easily accessible. The single Appeal Court is overloaded and there is a plan to create several regional courts.
Of all national institutions, courts are among the worst equipped. Many are housed in shabby buildings. The provincial court of Banteay Meanchey is housed in two small two-storey shop houses. Almost all are so small that there are no proper rooms for judges, prosecutors and staff. They lack modern office equipment such as computers and proper filing cabinets. They lack even a proper room to store court files. Almost all court buildings need renovation or rebuilding. The state of courthouses and their equipment shows clearly that the judiciary has the lowest status of the three branches of government. For example, the budget for the whole judiciary, including the Ministry of Justice, is just three fifths of the budget for the Senate, which has only 61 members and does not have much work to do.
Judges and prosecutors
Like their counterparts in France, Cambodian judges and prosecutors are all magistrates. Judges are called sitting magistrates, while prosecutors are called standing magistrates. A judge can become a prosecutor and vice versa. Generally, judges and prosecutors of the same court have very close relationships. After all, their respective offices are located in the same courthouse.
Judges can be trial judges and investigating judges. However, investigating judges cannot be trial judges for cases they have investigated. Trial judges try both civil and criminal cases. There has been mounting demand for a separation between the trial and investigating judges, and for specialization among both trial and investigation judges as cases have become increasingly complicated and require advanced expertise. Recently the SCM heeded the demand for a separation of judges into two distinct bodies: one for trial judges and the other for investigating judges. However, this separation needs to be legislated. It is going to be determined in the law on the status of judges and public prosecutors and/or the law on the organization of courts now being drafted. There has also been demand for separation of judges and prosecutors into two separate bodies as well.
The government does not like judges and prosecutors to be independent. Lately, it has decided to amend the constitution so as to place prosecutors under the authority of the Ministry of Justice. This would be a step backward, going against the trend around the world. If the constitutional guarantee of independence disappears, there will no longer be any constitutional ground upon which to advocate for the independence of prosecutors. Without any constitutional guarantee of their independence, prosecutors could degenerate further until they resemble Stalin’s Prosecutor-General Andrei Vashinski.
There are no specific qualifications required for a person to become a judge or prosecutor, as there is no law yet in place to address this issue. As a result, the backgrounds of the existing judges and prosecutors are very diverse. Apart from some 40 judges and prosecutors appointed after the promulgation of the new constitution, the rest, some 120, did not have any legal training, let alone a law degree, when they were appointed during the communist era. Their appointment was then based on their membership of–and loyalty to–the communist party. Some were teachers, others petty functionaries or ordinary workers in the pre-communist era. Some younger ones were sent to Vietnam for short or long-term training. All were instructed to serve the party. Those who were subsequently appointed were also compelled one way or another to join the current power, the CPP. The president of the Supreme Court is a member the Standing and Permanent Committees of the CPP. The presidents of the Appeal Court and Military Court have recently been made members of the CPP Central Committee. As members of the party, judges and prosecutors have to pay membership fees and regularly make additional contributions, especially when the party needs more resources for election. They also participate in party functions such as annual meetings and provincial committee meetings.
There have been continuous training programmes both inside and outside Cambodia to acquaint judges and prosecutors with legal principles and practices in advanced systems of justice. In most cases, they face a language barrier when undergoing training by western experts. Some are more fluent in Russian or Vietnamese than in English or French. Others are too old or have insufficient education to acquire new knowledge. Some are more receptive. However, many are reluctant to use newly-acquired skills and knowledge. Even reformist judges and prosecutors feel pressure from people at the top, and are not confident when the laws on their status and on the organization of the courts have not yet been enacted.
Some people have pinned their hopes on newly-trained judges and prosecutors from the Royal School for Magistrates. The first group of 50 law graduates entered there in 2003. However, to produce 50 judges and prosecutors every two years cannot meet the immediate needs. A provincial court needs 40 judges and prosecutors when currently it has about 10. The school, now known as the Royal Academy for Judicial Profession needs to have a similar intake every year, not every two years. In addition, it should not be placed under political control. Currently it is under the Senior Minister for the Council of Ministers. More foreign experts should also be employed as long-term trainers, and there should be arrangements for trainees to undertake internships in foreign courts.
The Supreme Council of the Magistracy
In 1994 the Supreme Council of the Magistracy was created via the Law on the Organisation and Functioning of the Supreme Council of the Magistracy, again modeled on its French equivalent. Its constitutional role is to help the king to ensure the independence of the judiciary, to nominate judges and prosecutors for appointment by the king, and to discipline judges and prosecutors (articles 132 & 133). It is chaired by the king and has eight members:
1. The Minister of Justice;
2. The President of the Supreme Court;
3. The Prosecutor General of the Supreme Court;
4. The President of the Appeal Court;
5. The Prosecutor General of the Appeal Court; and,
6. Three magistrates elected by their peers.
The composition reflects the body’s corporate nature since all but two of the members are from the same profession. Now, apart from the king and the prosecutor-general of the Supreme Court, all are members of the CPP. This composition is different from the composition of the French counterpart when the latter comprises, besides members of the judiciary, people from outside the profession and/or appointed by different institutions.
When the SCM was put in place, the three magistrates were appointed on a temporary basis as there is as yet no law on the status of judges and prosecutors. This has impaired its legitimacy. King Sihanouk, when on the throne, did not bother to chair its meetings–except on one casual occasion when especially requested by some leading members of civil society–and did not appoint any representative to chair in his place. He wanted to distance himself from this branch of government, which he acknowledged as corrupt: although not any more so than other branches of government. King Sihamoni, crowned in October 2004, started to chair it not long after his enthronement.
The SCM has received complaints and has disciplined magistrates. However, there is no clear and transparent procedure for complaints and for the disciplining of defendants. It has a small secretariat to help with its functioning, but there has been growing demand for its restructuring to include members from outside the judiciary and have clear and transparent rules, procedures and mechanisms for complaints and their adjudication. A draft amendment to the law on its organisation and functioning has been pending for a long time, but so far has not been approved by the government.
As almost all of its members are from political parties, especially from the ruling party, the SCM has not been seen as an independent body. To make matters worse, the Ministry of Justice has moved to place the SCM secretariat under its authority, but the SCM has refused to yield to this pressure. This move has been seen as yet another step to consolidate the government’s control of the judiciary.
Cambodia’s National Police is a department of the Ministry of Interior, but currently the director general is very close to the prime minister and has the rank of a minister. He is known to be more powerful than the two deputy prime ministers who are jointly in charge of the Ministry of Interior.
The police force has a much greater presence across the country now than prior to the communist era. It is spread out and down to the commune level. As a legacy of communism, its quarters at the provincial, district and commune levels are invariably located next to the headquarters of the ruling party’s offices, which in turn are located close to the offices of the local authorities. Its combined strength is some 60,000 men for a population of over 13 million. They are armed with pistols and/or rifles when on duty.
Apart from the immigration police and border police, there are four different police forces: the economic police, traffic police, administrative police, and judicial police.
The economic police monitor the circulation of goods within the country. Their role overlaps with that of customs officers.
The administrative police are in charge of law and order, but as a legacy of the communist days they gather and keep statistics on the population in each commune and get to know the activities of all residents. The district police inspector is also the chief of the administrative police of the district. He issues books that register the address of each family and the names, dates of birth and occupations of family members, and also books that register the address of each house and the names, dates of birth and occupations of all residents. He also approves of any change to previous registrations. In the pre-communist days there were no such books at all.
The judicial police force deals with crimes. Its officers have powers to investigate, arrest, detain, interrogate and constitute first information reports on suspects, and send them to court. They comprise all senior officers at different levels under the direct authority of the Judicial Police Department. All provincial governors, district governors, commune chiefs and some specialized civil servants–such as customs officers, tax officers, forestry officers and fishery officers–are also made judicial police officers.
A special unit under the direct responsibility of the director general of the police is specially trained and equipped with weapons, dogs and electric batons to stamp out any riot or unauthorized demonstration. Impunity seems assured to this force and it is very much feared.
Another police force that has inspired fear is the Military Police: a militarized version of the French provincial police, the gendarmerie. It has a force of some 7000 well-armed men. It is under the authority of the Ministry of Defence, but like the Royal Cambodian Armed Forces themselves, is placed under the direct command of the prime minister. Its role is not very different from that of the National Police. Its structure is more or less the same, but its units do not exist in communes. The commanders and deputy-commanders of its units are made judicial police officers for flagrante delicto offences and for military offences. According to article 11 on military tribunals of the UNTAC Law, “Military offenses are those involving military personnel, whether enlisted or conscripted, and which concern discipline with the armed forces or which harm military property.” But in practice the Military Police have not limited themselves to these offences. They also deal with ordinary offences, thereby infringing upon the domain of the National Police.
For instance, in 2005 a team of NGO court monitors conducted a parallel investigation into a woman’s allegation of battery, illegal confinement, robbery and rape by her ex-husband. This ex-husband was arrested by a team of Military Police officers. The National Police officers at the provincial, district and commune levels did not react to the arrest, although the case was reported to the National Police first. The officers only said that both forces had good cooperation. They let the Military Police make the arrest, though the case falls outside their jurisdiction. The prosecutor in the court seemed to prefer the Military Police, regardless of whether the case should be under their jurisdiction or not.
From time to time there have been conflicts of jurisdiction that have led to tension between the military and national police, especially over cases where each side could draw some illicit benefits. But in general, the National Police tolerate infringements by the Military Police and are content to moan and groan in private that their military counterparts are better trained, better equipped, more effective and better supported by the prime minister.
With such a strong force, one might expect that policing in Cambodia is effective and that there is law and order across the country. Actually, the opposite is closer to the truth. Some people make jokes about policing: in the pre-communist days there was a much smaller police force yet there was law, order and security 24 hours a day; now with a force several times stronger, crimes have multiplied in variety and are on the increase.
The police are criticized for abusing powers, corruption, ill-treatment and torture of suspects. The police force has been accused of arresting weak and poor people, and ignoring the wrongdoing of the powerful and the wealthy. The risk of a peasant riding a motorcycle to town and being arrested is many times greater than that of a motorist in a luxurious car ignoring a red light.
The ineffectiveness of policing in Cambodia comes mainly from the absence of a culture of obedience to law in general, and from low pay, corruption, abuse of power, lack of training and ignorance of rules and regulations. All these deny the possibility of law enforcement and undermine the entire criminal justice process.
The legal profession
In 1995 the legal profession was created by an act of parliament passed in the same year. The Bar Association of Cambodia was then formed. Some Cambodians with law degrees or related qualifications or experience were admitted to register as lawyers. They were offered some training before being allowed to practice law. Now, the Bar has also created a Lawyer Training Centre. It recruits holders of law degrees through an entrance examination. Its training consists of various law courses over one year and an internship under the supervision of a senior lawyer for another year. There are now 450 registered lawyers, some of whom do not practice. Almost all of them are in the capital. Some have opened their own law firms, others are working with legal aid NGOs, and others still work for companies and the government.
Under article 1 of the Law on the Bar, the legal profession in Cambodia is supposed to be independent. In practice it is under government influence. Two years ago four political leaders, including the prime minister, were made lawyers. This resulted in widespread criticism and aroused further suspicion that the Bar was under political influence: not least of all because the prime minister had offered to allocate part of the budget to the Bar for its legal aid programme and also gave a public building to serve as its office.
Since early 2005 the Bar has been paralyzed by a protracted conflict between its incumbent chair, Ky Tek, a private lawyer known to be pro-government, and the newly elected chair, Suon Visal, an NGO lawyer known to be very much independent. Ky Tek has claimed fraud during the election and has refused to step down. The case was brought to court. The Appeal Court upheld Ky Tek’s claim but the Supreme Court overturned this decision and sent the case back to the Appeal Court for trial. The case has not yet been finally decided. But while the case was pending, sensing that the decision of the Supreme Court was in his favour, Suon Visal obtained the approval of the majority of the Bar Council to take over the office and get another official seal made for his use. Ky Tek filed a complaint in court accusing Suon Visal and his associates of forging the seal. The court then issued arrest warrants against Suon Visal and others, forcing them into hiding. Of late Ky Tek and Suon Visal have agreed to hold a new election.
The Bar has had nothing much to show for its achievements apart from the number of lawyers it has admitted and trained, and the legal aid programme to help indigent litigants. It has not made any remarkable contribution to legal and judicial reform and the Khmer Rouge trial process. It has remained all but silent when the government has violated principles of law. In addition, it has done virtually nothing to enhance the professionalism and ethics of lawyers.
The criminal justice process
The Cambodian criminal justice process, like the justice system as a whole, is very much a shorthand version of the French criminal justice system. It is an inquisitorial system. Investigations are conducted by investigating judges. Trial judges use information on file from an investigating judge with which to question and cross-examine defendants and witnesses. Prosecutors just lay the charges and play a secondary role in the cross-examination. Defence lawyers are not given enough time to have access to case files and prepare, and do not have adequate resources to conduct thorough investigations. They are not given enough time to make submissions in defence of their clients or to cross-examine witnesses.
The courtroom arrangement reflects the pecking order, with the trial judge at the top sitting behind a desk on a high platform, then the prosecutor behind a desk on a lower platform, and then finally the defence lawyer behind a desk on the floor. Defendants stand in a dock in the middle of the court floor, with the trial judge, prosecutor and court clerk looking down on them from higher up as if they were guilty already.
When there is a complaint against a person for having committed a criminal offence filed with the police or the prosecution, or when the prosecution or the police have any suspicion that a person has committed an offence, the police conduct an investigation. In law, a prosecutor should supervise this investigation. The suspect may be arrested with an arrest warrant and must be brought to court within 48 hours. Within this period of time the police detain the suspect for interrogation.
The first information report together with any exhibit and the suspect will be sent to the prosecutor of the relevant court of first instance (a municipal/provincial court). This prosecutor interrogates the suspect briefly and then decides whether there is a case or not. If so, he requests the court to assign an investigating judge, who then briefly hears the case and decides whether to detain the suspect in order to help him with the investigation. If so, he issues a detention order. The suspect is kept in the prison in the province or municipality.
In law, all evidence–including the suspect’s statements gathered and submitted by the police to court–is considered provisional. The police evidence is considered valid for convicting the accused if there is no other evidence to charge them or to challenge it in the trial. The use of this police evidence has aroused concern when there is no defence counsel at the police interrogation, and the prosecutor shows no concern and takes no action when hearing the accused denying a confession and alleging torture.
The procedure is the same for flagrante delicto cases, but, in law, these cases can be heard by the court without any further investigation if the prosecutor judges that there is enough evidence to charge the suspect. In practice this procedure has not been used. All cases are investigated by investigating judges.
The detention of an accused cannot exceed four months. The investigating judge can extend this detention for a further two months only but he must give detailed reasons for this extension. The suspect can ask for bail. He can appeal against refusal of bail to the Appeal Court, and then to the Supreme Court. In law, bail is not allowed in felony cases. In practice there are many cases where detention exceeds the legally prescribed period of six months and there have been a lot of criticisms of this excess, which is punishable with one to 12 months imprisonment and a fine under article 57 of the UNTAC Law. However, so far no judge has been punished under this article.
There are many factors contributing to the longer detention periods: the inability to complete investigation in time due to workload, lack of expertise and resources, neglect, or unwillingness on the part of the investigating judge to let the accused out. In some cases, the cause is simply the lack of lawyers to defend the accused.
There is no law of evidence and no detailed standard investigation procedure for investigating judges to follow. Some investigating judges are more resourceful than others; some just rely on evidence gathered by the police. Some inform the accused of their rights and tell their lawyers of the dates and places of their interrogation. Others do not do that. There is no forensic expertise: they can rely only on witnesses, exhibits, physicians, and drug laboratory results. They cannot obtain phone call records unless authorized by the police. Therefore, both the police and investigating judges rely heavily on confessions. Some police officers have used physical torture to get these, but investigating judges are not reported to have used it. They may have used psychological torture.
Once finished, the investigating judge sends a case file to the prosecutor and president of the local court, requesting that charges be maintained or dropped. The prosecutor may object to the dropping of a charge and appeal against the decision. The president of the court then allocates the case to a trial judge, who then fixes the date of trial.
In law, no felony cases can be heard without a defence lawyer. The court must provide a lawyer if the accused cannot afford one. This is quite a problem in a country where there are not enough lawyers and legal aid is insufficient to pay the fees. Indigent defendants rely entirely on NGO lawyers for their defence, but there are not enough lawyers offering their services free of charge. The courts have other problems. There is a lack of smooth coordination with prisons in the transport of the accused to court on a particular date and time. At times trials have been delayed or postponed because an accused has been brought to court late or not at all. Another problem is that not many witnesses come to court as summoned. In some cases even the owners of stolen property do not bother to turn up. At times hearings of felony cases proceed without the required defence lawyers.
Since investigating judges are supposed to conduct thorough investigations, there is an assumption that the evidence they have gathered will be convincing. Hearings are a formality to ascertain the truth, and are short: from half an hour to several hours. Those lasting one day or longer are rare. Each starts with the trial judge’s identification of the defendant and witnesses, if any, and enumeration of the rights of the defendant. Then the prosecutor reads the charge. After that the trial judge leads the questioning and cross-examination of the defendant and witnesses. The defence lawyer, if there is one, makes submissions and cross-examines prosecution witnesses, rebuts the charges laid by the prosecutor, and challenges the evidence. At times there is an exchange of arguments between the defence lawyer and the prosecutor.
The courts rely heavily on the confessions obtained by the police or investigating judge. There is also a lot of reliance on written statements made by experts. There is no insistence on the presence of eyewitnesses or expert witnesses, though they can be coerced to come to court to make statements and be cross-examined. When evidence presented to the court is not convincing or witness statements are not very consistent, the trial judge or prosecutor tends to cite statements of confession that the accused made earlier. If prosecution witnesses are absent, they cite their earlier statements, if any. The arresting police officers, and those who conducted the preliminary investigations, are rarely summoned. The concept of proof beyond reasonable doubt is not invoked.
The court clerk, who is supposed to record all the trial proceedings, has to interrupt this work when ordered to read out statements. In general court clerks lack the skills to record all proceedings. They leave blank pages and get the defendants and witnesses to sign or thumbprint on them to confirm what has been said and heard in court, and then fill them in later.
In many cases defence lawyers do not seem to be well prepared. Some take on cases just before trial. Many have not conducted any investigations, while others have made some efforts to get witnesses to court. They tend to seek bail without first challenging the charges against the client. They do not advise the client to remain silent during the investigation or even during the hearing. None ask the court to use the law to compel witnesses to appear for cross-examination, and readily accept the witness statements as recorded by the police or investigating judge. In general defence lawyers quickly admit the guilt of their client and request leniency even when guilt has not been proved beyond reasonable doubt. They have not questioned the constitutionality of certain legal provisions affecting the rights of the client. It is commonly known that some have resorted to bribes to win cases or get lighter sentences for their clients.
In general the trial judge pronounces the judgment at the end of each hearing and after a short recess. At times there is no such recess or the recess is not long enough–from 20 minutes to an hour–for the judge to go through all of the case facts. For instance, the hearing in an alleged murder of a renowned trade union leader lasted from morning until around 4pm. The trial judge retired to his room for about 20 minutes and returned to sentence the two accused to 20 years in prison, the next-heaviest sentence in Cambodian law, the heaviest being life imprisonment. Judgments are invariably brief, citing the charge, relevant provisions of law, a few main facts as heard and concluding with the verdict.
There is no restriction on petitions of appeal. Plaintiffs, the prosecution and the defendant all have the right to appeal the ruling of a court of first instance and a ruling of the Appeal Court. The Supreme Court is supposed to make decisions to correct errors of law, not details of facts, but it may send cases back for retrial by the Appeal Court and then hear a petition of appeal against a further ruling by that court. In the latter case it makes decisions according to both facts and law. Under such circumstances, a single case may be heard five times: by the court of first instance, Appeal Court, Supreme Court, then again by the Appeal Court and finally by the Supreme Court again. In criminal cases, there are also appeals against denial of bail. In practice, the hearing of a case is almost exactly the same whether it is heard at a court of first instance, Appeal Court or Supreme Court, or whether it is a trial or an appeal against the denial of bail. Facts are submitted in almost the same way at all courts.
The criminal justice process can thus be very lengthy, but the Appeal Court has sought to hear cases before the period of detention of an accused exceeds the prison sentence for a crime. However, avenues for appeals and a lack of disciplinary measures against judges and prosecutors, if any, have fostered judicial unaccountability, especially in lower courts. At times courts of first instance have made arbitrary judgments and challenged protesting litigants or defendants to appeal because of corruption or executive control.
The functioning of the institutions of the rule of law in Cambodia, and in particular the judiciary itself, has many flaws and shortcomings whose examples cited above represent but a small sample. But these defects would not be so difficult to correct if those institutions were free from power politics. In fact, these institutions are used by the powerful more for repression than for the protection of rights and freedoms.
Institutions of repression
Through the second half of 2004 and the whole of 2005 a number of developments laid bare the true nature of the criminal justice system of Cambodia and indeed the regime ruling the country itself. Since 1993 Cambodia has organized three successive general elections, but these were not free and fair. The former communist party, the CPP, uses its extensive security and administrative structure and membership, its control of the media and vote buying to prevent other political parties from participating freely, in security and on an equal footing.
After the UNTAC organized election in 1993 Cambodians seemed to enjoy more freedom for several years. Then in 1997 the CPP led a coup that has since placed it at the fore of Cambodian politics. The old practices of communist days have reemerged. Prime Minister Hun Sen, vice president of the CPP, has gradually gained absolute control of his party and successive governments. In weekly meetings ministers listen to the prime minister’s monologues and receive his instructions; some kneel in greeting upon entering his office. In the parliament, the CPP has increased its majority since the 1998 election. Because of its de facto inferior status, the parliament has never been able to control the government. Its committees for human rights and complaints are inactive and ineffective. The National Assembly has also never been able to call Prime Minister Hun Sen for questioning or debates at question time. He has never made any statement on national issues to the parliament. Since 1993, it has succeeded in calling in ministers for questioning not more than a dozen times.
The king has constitutional responsibility for the protection of human rights but lacks powers to discharge this responsibility. The fortnightly meetings between the king, prime minister and Cabinet as stipulated by article 20 of the constitution were never held in King Sihanouk’s time. The king did not make any direct suggestion or try to restrain Hun Sen’s powers through official channels for fear of confronting him. He preferred to make indirect critical and mostly sarcastic remarks through the media, including his monthly bulletin of documentation and, over recent years, his own website. King Sihamoni has not yet proved more able to protect human rights and have Hun Sen follow a democratic path.
The Constitutional Council is under the control of CPP appointees, who are the majority. It has not so far made any decision that could affect the policy of the government or protect the constitutional rights of the people. As mentioned above, access to the council is so difficult that no private citizen has ever requested it to examine the constitutionality of decisions by state institutions that have affected their rights.
The CPP and through it the prime minister also have effective control over the armed forces and all public administration, including the civil service, police, education and health bureaucracies and staff. The CPP does this both by consolidating its members’ existing positions and appointing them to positions of responsibility. In Cambodia, political neutrality is not a value in either public administration or in the army.
Likewise, members of the CPP dominate the judiciary as judges and prosecutors. The government has had a legal and judicial reform programme since at least 1999. However, little has been achieved apart from the publication and launching of that programme and the strategy to implement it, talks, meetings, and promises upon promises.
In 2005 the real reason for the slowness in implementation of judicial and legal reforms became apparent: the prime minister wants to retain the judiciary and police as they are, and use them to destroy opposition and silence critics of the government.
In late July 2004 Hun Sen announced in a public speech later broadcast on TV and radio that the opposition Sam Rainsy Party (SRP) was organising an illegal army to overthrow him. His security forces identified Cheam Channy, a parliamentarian from that party, as the lead organiser of this army.
Not long after, Hun Sen and Prince Norodom Ranariddh (Funcinpec) filed lawsuits against Sam Rainsy and his colleague Chea Poch, also a member of parliament, for defamation, in relation to two claims. First, Rainsy had claimed that Hun Sen had been behind a bloody grenade attack on a demonstration he had led in 1997; and secondly, that Ranariddh had taken bribes from the CPP to make a deal with Hun Sen. Chea Poch was charged for the same claim against Rannariddh. In February 2005, in a closed-door meeting, the National Assembly lifted the parliamentary immunity of Cheam Channy, Sam Rainsy and Chea Poch. The latter two fled the country. Cheam Channy was arrested and sentenced by the Military Court to seven years in prison for allegedly organizing an illegal army. Sam Rainsy was sentenced in absentia to 18 months in jail.
In October 2005, Hun Sen arrested Mam Sodando, the owner of Beehive Radio, for his live radio interview with a Cambodian border expert living in France critical of Hun Sen’s signing of an additional border treaty with Vietnam. In the same month, Rong Chhun, leader of the Independent Teachers’ Association, was also arrested for signing a statement critical of the same treaty, together with three other NGO leaders. At the end of December 2005 Hun Sen arrested Kem Sokha, director of the Cambodian Center for Human Rights (CCHR), and Yeng Virak, director of the Community Law Education Center, and a few days later Kem Sokha’s deputy, Pa Nguon Teang, was also arrested. All three were held responsible for the display of a banner with small handwritten phrases critical of Hun Sen dating back to 2003 at the CCHR booth during a celebration for International Human Rights Day on 10 December 2005. A few other human rights activists were also charged for defamation, but they escaped arrest as they were already abroad or fled.
The arrest and trial of Cheam Channy was blatantly illegal. The Military Court that tried him had no jurisdiction over him as a civilian. His lawyers were not allowed to cross-examine prosecution witnesses and to present his witnesses. The UN Working Group on Arbitrary Detention said that the “deprivation of the liberty of Mr. Cheam Channy is arbitrary” (Opinion No. 39/2005, 25 November 2005). Actually, since his release at the start of February 2006 Cheam Channy has continued to claim his innocence.
There is also no proof beyond reasonable doubt that any others have criminally defamed anyone by simply exercising their right to freedom of expression over national issues. Recently, unable to resist worldwide condemnation of these arrests and criticism of his rule, Hun Sen withdrew his lawsuits and pardoned the opposition parliamentarians. His leniency is just a respite. The law, the police, the prosecution and the judges continue to be used to silence government critics and spread fear among Cambodians. These institutions of the rule of law and liberty have been turned into institutions of repression.
The “strong man” of Cambodia can use them against his critics and safely continue to consolidate his powers. The use of power for repressive objectives continues to be a hindrance to the current legal and judicial reform programme and to the development of democracy and the rule of law, and respect for constitutional rights in Cambodia.
Cambodia’s institutions of repression can be turned into institutions of liberty. Some measures that could be taken to this end include the following.
1. Cambodia should become a party to the Optional Protocol to the International Covenant on Civil and Political Rights, thus creating a new possibility for implementation of human rights.
2. The Cambodian Parliament should adopt as quickly as possible a criminal code, a civil code, a code of criminal procedure, a code of civil procedure, a law on the statutes of prosecutors and judges and a law on the administration of justice. These laws should incorporate the points recommended below.
3. Freedom of expression:
a. Defamation should be decriminalized and civil liability for defamation should be of such amount as not to ruin or bankrupt defendants;
b. The government should respect a free press and abandon its control over the electronic media; and,
c. The ban on demonstrations and other forms of assembly should be abolished.
4. The legal and judicial system should be depoliticized.
5. The police, prosecution office and courts should give priority to human rights, including the presumption of innocence, the right to challenge a charge and the right to remain silent.
6. Bail should be allowed in all misdemeanour cases.
7. Temporary detention centres should be completely separate from prisons, and detainees should be able to enjoy all of their rights.
8. The independence and impartiality of police investigators, prosecutors and judges should be respected by all, and
a. Politicians, including the prime minister, should not interfere in judicial matters;
b. The government and parliament should issue and order all their respective members not to interfere in judicial matters, have contact or be seen to have contact with prosecutors and judges over cases these judicial officers are handling; and,
c. Prosecutors and judges should not be members of any political party.
9. The Supreme Council of the Magistracy should be freely open and easily accessible for members of the public to make complaints against prosecutors or judges.
10. Investigators, especially investigating judges, should be given adequate resources and training to do their jobs properly.
11. The Bar Association and its members should uphold their independence and increase their professionalism.
12. Lawyers should discharge their duties not only to their clients but also for the administration of justice and should not hesitate to request changes to the law if it does not protect human rights or ensure justice.
13. Courts should give their cooperation and ample time to lawyers to prepare their defence.
14. The government should provide adequate legal aid to indigent litigants.
15. The government should provide monetary assistance and adequate protection to witnesses so that they can safely come to the courts and testify without fear.