New laws will undermine Cambodia's judiciary, say critics | Asia Pacific

New laws will undermine Cambodia's judiciary, say critics

New laws will undermine Cambodia's judiciary, say critics

Updated 16 July 2014, 13:57 AEST

Three long-awaited laws that regulate key aspects of Cambodia's judiciary are set to be signed into law after being passed by parliament.

The problem, say the laws' many critics, is that as they currently stand, these laws will cement the executive's hold over the judiciary.

Reporter: Robert Carmichael

Speakers: Gabriela Knaul, UN Special Rapporteur on the Independence of Judges and Lawyers; Nadia Hardman, programme lawyer for the International Bar Association's Human Rights Institute

CARMICHAEL: At a press conference at a hotel in Phnom Penh, attendees debate a batch of laws recently passed by Cambodia's parliament.

The three draft laws have also been rubber-stamped by the Senate and have passed the scrutiny of the Constitutional Council, the country's highest legal body. Now they await only the signature of Cambodia's king, a constitutional monarch. That is expected in the coming days.

Given that the laws have been some 20 years in the making, you might expect to hear a slew of positive comments.

Not so. The talk to date has been on their numerous flaws - most significantly that they breach the constitutional requirement of judicial independence.

In an unusual move, a clutch of rights groups petitioned the king on Tuesday asking him not to sign the three draft laws. That appeal was echoed by Gabriela Knaul, the UN Special Rapporteur on the Independence of Judges and Lawyers, who was in Phnom Penh for the press conference.

Knaul - a Brazilian judge who has been the UN special rapporteur since 2009 - explains the scope of the laws:

KNAUL: "They deal with the structure of the court - how it works, how it should function, what are the borderlines between the powers, what kind of guarantees the beneficiaries of the justice system should have. This kind of law regulates the appointments process, the transfers, suspension, [and] disciplinary proceedings against judges. It deals with matters relating to enhancing transparency, the accountability of the judicial system. It defines and makes clear what's the role of judges and the prosecutors in order to avoid confusion on the roles of each one."

CARMICHAEL: The laws, she adds, ought to strengthen the public's credibility in Cambodia's judicial system.

That would be no small thing in a nation whose judiciary is widely seen as beholden to the powerful.

The separation of powers is a fundamental tenet of democratic rule, and in practice means the executive, the legislature and the judiciary are independent of one other.

But these three laws fail that test, says Knaul - not least because of the role that they envision for the minister of justice, a member of the executive.

KNAUL: For example, managing budget. Dealing with some questions relating to complaints against judges, and the role that the executive through the minister of justice can produce some level of interference in the work of the judges. And judges should not be afraid to work independently. They should not be afraid to suffer any kind of reprisals because of doing their role in an independent manner.

CARMICHAEL: Tuesday's press conference was hosted by the International Bar Association, or IBA, a UK-based non-profit whose mandate is to support the independence of the judiciary around the world. Nadia Hardman is the programme lawyer for the IBA's Human Rights Institute, which on Tuesday expressed its concern over the laws on the grounds that they "could provide an excessive transfer of power from the judiciary to the executive".

Yet Cambodia's judiciary is already widely seen as under the thumb of the executive. I asked Hardman: would codifying that control really make any difference?

Hardman says that - because the IBA hasn't yet undertaken a fact-finding mission on Cambodia's judicial system - she can't comment on whether the country's judiciary has been politicized. But, she explains, on a general level it is dangerous to codify bad practice:

HARDMAN: "Because it means you now have primary legislation which allows abuse to happen at a legislative level - and that's dangerous because the government can now point to a series of laws and say well, yes, this may be something that you're complaining about i.e. that the independence of the judiciary is a problem, but look, it's the law. What can we do? And moreover you have a series of documents that will institutionalise - I mean we're not saying that's definitely going to happen, absolutely not - but you have documents that allow so much potential for abuse going forwards. And that's incredibly worrying because it's an indicator going forwards of where the government sees the judiciary."

CARMICHAEL: Even at this late stage, say critics, there is time for the three draft judiciary laws to be revised with input from civil society and the public.

But in practice that seems unlikely. The government says it is satisfied with the laws. And so, given the laws' rapid passage through parliament and the senate, the chances are that they will end up on the books sooner rather than later. Time will tell what that will mean for the delivery of justice to Cambodia's people.


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