Dr Lao Mong Hay, Senior Researcher, Asian Human Rights Commission, Hong Kong
When the Cambodian warring factions and the concerned countries met in Paris, France, in 1991 to conclude a set of agreements to end the war in Cambodia, they recognized that “Cambodia’s tragic recent history requires special measures to assure protection of human rights, and the non-return to the policies and practices of the past.” As part of these measures, Cambodia has undertaken, among other things, to adhere to the international human rights norms and standards and establish an independent judiciary duly empowered to enforce human rights.
In 1993 Cambodia began in earnest to honour its international obligations. It integrated these international human rights norms and standards in its constitution, adopted the principles of separation of powers and established an independent judiciary in the same constitution.
In September 2006 Prime Minister Hun Sen, in an address to a conference on the establishment of a Cambodian national human rights commission, committed his government to the creation of this body based on the Paris Principles relating to the status of national institutions for protection and promotion of human rights. The key criteria of these principles are: (1) independence, guaranteed by statue or constitution; (2) autonomy from Government; (3) pluralism including membership; (4) a broad mandate based on universal human rights standards; (5) adequate powers; and (6) adequate resources.
The message form the government set a momentum for the success of that conference which ended up with a set of resolutions including a progamme of work for stakeholders in the government and the civil society. A civil-society working group soon came up with a rough draft law on the establishment of the Cambodian national human rights commission, which it submitted to its counterpart in the government. Parallel with the commitment of its highest leadership, Cambodia has benefited from the experience of sister national human rights institutions in the region and beyond, and the expertise of international organisations, whose representatives and experts have offered a helping hand and shared their experience and expertise with Cambodian stakeholders.
However, if the political climate is favourable, assistance is forthcoming, and progress has been achieved in the form of a draft law for further debates, there are still many hurdles, several of which need to be address as a matter of priority at an early stage of the process to put in place this important national human rights body.
First, stakeholders need to work out ways of fitting the new body into the existing institutional settings when there are already public human rights institutions that have had little effectiveness in the promotion and protection of human rights. Under the Paris Peace Agreements, the judiciary is empowered to enforce human rights, and under Cambodia’s constitution it is charged with the task of protecting these rights. Besides the judiciary, the king is also the constitutional guarantor of human rights. Should the new institution assist the king in his constitutional duty to guarantee human rights the same way as the supreme judicial body called Supreme Council of the Magistracy assists him in ensuring the independence of the judiciary?
On top of the judiciary and the king, there are the human rights committees respectively of the National Assembly, the Senate and the Government. All these human rights institutions are widely seen as political organisations but, as Prime Minister Hun Sen insisted in the same address September 2006, are to be preserved.
There have been some developments, positive and negative, concerning all existing human rights and other institutions, developments from which there are useful lessons for the establishment of a new human rights institution.
The Senate’s Human Rights Committee, which has not so far been very active, might want to follow the footstep of its Legislation Committee, which lately decided to conduct a commendable inquiry into the workings of the judiciary. The National Assembly’s Human Rights Committee might also want to be more active in investigating human rights cases.
At one time this year there were criticisms over the lack of effectiveness of the many institutions created to resolve land disputes: the courts, the cadastral committees, and the National Authority for the Resolution of Land Disputes. One criticism concerned the multiplication of these institutions. It was followed by a suggestion to allow the provincial authorities to resolve them. There are lessons to be learned from the pitfalls of these institutions for the resolution of land disputes. The challenge is how to shape and fit in all these jigsaw pieces together and design the new institution to ensure there is synergy between all existing human rights institutions, which are to form as a strong, cohesive system, instead of them competing with one another or duplicating their work. An option could be the creation of a new human rights body that is independent and has power of coordination and supervision over the three human rights committees. These three could address minor human issues while the new body could deal with the major ones.
The second concern is the independence and impartiality of the new human rights body. Prime Minister Hun Sen said that the establishment of the new body was to be based on the Paris Principles, The acceptance of these principles, especially the independence and autonomy of national institutions for the protection and promotion of human rights, is a positive shift in Cambodian political culture, and the law on the establishment of the new body should reflect and protect this independence and autonomy.
In this regard, lessons should be drawn from the development of the judiciary. According to Cambodia’s constitution, courts are independent and impartial. A duty of these courts is to protect human rights; however, they have been widely been perceived as lacking independence and failing to protect human rights, especially in land disputes.
However, lately the government has renewed its efforts to reform the legal and judicial system and make the judiciary independent. In October 2008, in an address at the Royal School of Administration, Deputy Prime Minister Sok An said: “We will be preparing a national workshop to reform the law and courts”, adding that, “We hear bad rumours about courts in Cambodia, and we are going to work very hard to change that. We need to enforce discipline and make sure the courts are independent” (The Phnom Penh Post, 17 October 2008).
Without an independent judiciary, it is questionable whether the new human rights institution can be operationally effective.
The third concern is the quasi-judicial power of the new human rights institution. In this regard it should be noted that Cambodia’s justice system is a civil law system and its criminal justice is supported by a police force called the judicial police whose duty is to control crimes, arrest accused offenders and collect evidence. Judges and prosecutors belong to the same body of magistrates.
Prosecutors supervise and monitor the activities of all judicial police officers in their territorial authority. The prosecutor general of the Court of Appeal supervises and controls the judicial police, and has disciplinary power over them.
The criminal system is based on judicial inquiry; that is, pros- ecutors or investigating judges conduct criminal investigations. The judicial police can arrest suspects of flagrant crimes, detain them for up to 72 hours, make preliminary investigations and bring the suspects to the prosecutor to lay charges. The prosecu- tor can conduct further investigations or request the police to do so before laying charges and bringing cases for trial. In other cases the prosecutor can order the police to investigate and su- pervise their investigations.
After laying charges, the prosecutor transfers cases to investigating judges for investigation, which is mandatory in felony cases. This judge can request the judicial police to conduct investigations. If there is a case against an accused, the case will be sent for trial by another judge.
If the new human rights body is to have quasi-judicial power and investigate criminal cases resulting from violations of human rights like the existing judicial police, it will come under the supervision and control, and the disciplinary power of the prosecutor general; and, prosecutors will supervise and control the activities of its investigators in their territorial authority. All this could hamper its authority over the office of the prosecution.
The legislation on the national human rights institution should be clear about the status of the judicial police of the new human rights body. There should not be any legal difficulty in integrating this body into the judicial police. The Cambodian Code of Criminal Procedure allows for it. One way of preserving the independence of the new body while exercising this quasi-judicial power is to give its investigators the status of judicial police officers, the same way the code gives specific government officials this status, apart from members of the civilian and military police forces.
The legislation should also determine as clearly as possible the jurisdiction of both this new body and the existing judicial police to avoid overlapping, duplication and competition. This is an issue that should be thought through in detail.