Judiciary
The Judiciary
I. Introduction
Like the other democracy countries in the world, Cambodia has the separation powers between judiciary, executive and legislative powers. To simplify the word “Judiciary”, the word “Court” might be used for general understanding. Under Article 79, the functions of the court are: to defend the state authority of the people and democratic legality, to preserve security and social order, to protect public property, and to protect the rights, freedom, life and legitimate interests of citizens. Judiciary of Cambodia must be independence and impartiality (Art.128 Cambodia Constitution), means that there are no undue influence on the judge’s decision that may stem from his/her relation to the parties of the dispute (partiality) or from third parties and outside source ( Political influence etc,.). The Judge shall have no fear and no hope when he/she decides a case. The only “Due” influence on a judge’s decision shall come from the law he/she is obliged to apply and from the given facts, he/she has to examine.
II. Birth
Under the Khmer Rouge, a lot of educated people have been killed included the judiciary that is the result of inadequate of law experts and our judiciary system has to build from scratch. From 1979 to 1985, the provincial and municipal court was the only one level of court that holds all the territory in Cambodia. However, there was also the revision of the judgment by the Ministry of Justice and forwarded to the Council of State if there was any mistake. If the Council of State found there was some error in judgment, they would send back to the court for re-trial with a different trial composition and with the directives that set by the Council of State. During that time, Council of State played the double roles as the Supreme Court and the Department of the General Prosecution attached to the Supreme Court. Then in 1985, the Supreme Court has established that has the same role as the Council of State. Later, the Cambodian court system has changed again when the UNTAC arrived in 1992.
III. Power and Independent
Judicial power has been recognized as an independent power, which is state under Article 109. It means that judicial power cannot be interfered from the legislature and executive power. As stated in Article 129, only judges shall have the right to adjudicate. A judge shall fulfill this duty strict respect for the laws, wholeheartedly, and conscientiously. Also under Article 130, judicial power shall not be granted to the legislative or executive branches. If we look at the Article 1 of the Provision Dated September 10, 1992, relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period stipulates: “The independence of the judiciary must be ensured in accordance with the Basic Principles on the Independence of the Judiciary, adopted by the United Nations. Judges must decide in complete impartiality, on the basis of facts which are presented to them, and in accordance with law, refusing any pressure, threat or intimidation, direct or indirect, from any of the parties to a proceeding or any other person.” Furthermore, the other branches have no power to dismiss the judges for any reasons because the power to dismiss the judges is given to the Supreme Council of Magistracy. However, there is also a limitation for the power of these branches. Each institute has to control and balance each other that called “Principle of Checks and Balances” to ensure that they will not do anything that exceed their power.
IV. Structure and Function
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Supreme Court |
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Court of Appeals |
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Court of First Instance |
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Municipal & Provincial Court |
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Military Court |
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Commercial Court |
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Supreme Council of Magistracy |
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Constitutional Council |
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Ministry of Justice |
A. Organization and Jurisdiction
1. Supreme Council of Magistracy
The creation of the Supreme Council is stated in Article 115 of the Constitution. The King is the guarantor of the independence of the judiciary, which is stated in Article 113 of the Constitution and the Supreme Council assists the King to fulfill this task. The members of the Council are appointed by Royal Decree, which are composed of:
1. The King, President
2. The Minister of Justice, Member
3. The President of the Supreme Court, Member
4. The Prosecutor-General of the Supreme Court, Member
5. The President of the Appellate Courte, Member
6. The Prosecutor the Appellate Courte, Member
7. Three judges, elected by judges, Members
8. Three judges, also elected by judges, Alternate Members, They replace an absent full member (elected judge).
Function
One of the main duties of the Supreme Council is to ensure the smooth function of the judiciary.[1] The Supreme Council has the duty to “decide and propose to the King the appointment, transfer, secondment, leave of absence, delineation of duties, and dismissal of judges and prosecutors.”[2] The Supreme Council of Magistracy has an important role to the organization and the functioning of the judiciary. For example, base on the Article 10 states that all proposed laws and draft laws have to go through the Ministry of Justice to the Supreme Council for the consultation.
2. Ministry of Justice
Primarily, the Ministry of Justice has four departments and one inspection division:
1. Department of Administration and Finance;
2. Department of Personnel and Training;
3. Department of Civil Affairs;
4. Department of Criminal Affairs and Prosecution;
5. General Inspection of Justice Affairs.
Function
Base on the Article 3 of the Sub-Decree on the Organization and Functioning of the Ministry of Justice of 7th April 200, the duties of the Ministry of Justice are:
- Assure the smooth operation of the courts in civil, criminal, administrative, and commercial matters;
- Monitor the execution of judgments through inspection of penitentiaries;
- Provide guidelines to judges on the application of laws or regulations in cases where they are unclear or have been misconstrued;
- Assure uniformity and consistency in the drafting of civil, criminal, administrative, labor, and commercial laws and the implementation thereof;
- Maintain criminal records and issue abstracts thereof.
3. Constitutional Council
The council has nine members. The three members are appointed by the King, three are elected by the National Assembly, and the other three are appointed by the Supreme Council of Magistracy.
Function
The Constitutional Council has an important role to ensure the election is free and fair. It has to handle the settlement of the disputes related with the elections, for example involving with the rights of voters, electoral rights of candidates and political parties, and election fraud and irregularities. Base on the Constitution (1993), the Constitution Council has the duty to interpret the Constitution and a law passed by the National Assembly and has a right to examine and decide on the issue relating with the election o f Members of the National Assembly.
4. Supreme Court
The Supreme Court is the highest court of appeal in the country, which was established in 1985. It covers the whole territory of Cambodia. Base on the law on the Organization of the People’s Supreme Court and the Department of General Prosecution attached to the People’s Supreme Court states that the court consists of President, Vice-Presidents, and number of judges. The President is the head of the Supreme Council and it has two chambers: a Civil and Social Chamber, and a Panel Chambers. Also, the Supreme Council has a Department of Central Activities Processing.
Function
The Supreme Court has to apply the laws made by the legislature. Furthermore, the Supreme Court has to publish “Bulletin of Supreme Court Judgments” quarterly, which is used as model judgments to be followed by lower courts.
During the People’s Republic of Kampuchea (PRK) period, the main functions of the Supreme Court were:
1. Trial as the first and last resort of the cases that the law places under its jurisdiction;
2. Trial of the appealed cases of the President of the People’s Supreme Court, or of the Prosecutor-General attached to this Court, against the judgments of the People’s Supreme Court’s Chamber, Provincial/Municipal Courts, or Military Court;
3. Review of judgments of cases involving capital punishment before being submitted to the Council of State for final decision;
4. Supervision and monitoring of the work of the Provincial/Municipal/Military Courts.
5. General Prosecution Attached to the Supreme Court
The Department of General Prosecution has three units: Office of Investigation and Supervision of Investigation, Criminal Office, and Civil Office.
Function
1. The Office of Investigation and Supervision of Investigation has the duties to help the Department of General Prosecution to ensure the legality of investigation, examine documents of investigative institutions or organizations concerning violations of law, and conduct the investigation.
2. The Criminal Office has duties to help and responsible to the Prosecutor-General in the problems involving in the criminal proceeding such as reading charges, making conclusions, questioning, acting as the principal party.
3. The Civil Office has the duties to help and responsible to the Prosecutor-General in the problem related with civil cases. Also it responsible for collecting information and evidence for the Prosecutor-General to make conclusion at trial.
6. Appellate Court
The Appellate Court handles the whole territory of Cambodia. It hears all cases appealed from a court of first instance-municipal, provincial or military. The sections the Appellate Court are: Civil, Penal, Administrative, and Commercial.
Function
The Appeals Court has a function to proceed hearings of the appeal complaints about the judgment from the provincial and municipal courts and military courts. The President of the Appellate Court has the function to ensure the smooth operation of the court. The Trial Council conducts the trial, which has three judges-one sitting as President, a prosecutor, a clerk, and an assistant clerk.
7. Courts of First Instance
A court of First Instance is the lowest court, which consists of provincial, municipal, and military court. The responsibility of each court’s jurisdiction depends on particular geographic area where the court is located.
7.1 The Provincial and Municipal Court
It is the lowest trial court. There are 19 provincial courts and 2 municipal courts. The Municipal and Provincial Court has two departments: Civil and Criminal.
- The Civil Department
This department has judges and clerks and ad hoc Judgment Executor. The judge has the function to reconcile parties, and conduct investigation and trials in civil, commercial, administrative, and labor affairs. The functions of the clerks are related with making records, filling and service of process. The judgment executor has no permanent status because a judge or a clerk can be appointed as judgment executor by the President of the court.
- The Criminal Department
The Criminal Department has judges and clerks. The function of the judge is to investigate the criminal offenses.
7.2 Military Court
It is a court of the first instance holds the cases relating with military offenses. It means that the cases committed by the members of the army and involve in military discipline or it might harm properties of the military. The Military Court is under the Ministry of Defense which all the activities have to report to the Ministry of Defense.
7.3 Commercial Court
This court has not been created yet. The function of this court is to hear the dispute related with commercial involving an amount greater than 10,000,000 riels between merchants, bankers, and commercial companies.
8. Other Fora
8.1 Informal Dispute Resolution
It is the tradition ways that the Cambodian people use for the dispute resolution; for example, parties submit the disputes to the elderly people or other respected person in their village.
8.2. Royal Hearing
It is the settlement that the citizens submit their dispute to the King. It was first done by the King Norodom Sihanouk in 1993.
8.3 Dispute Resolution Through Arbitration
The settlement of this dispute is done by the Arbitrator who is chosen by both parties. The Arbitrator resolve the dispute base on the evidence and the problems that provided by both parties.
B. Court Personnel
1. Judges and Prosecutor
The sitting judge is the judges who hold the trial of investigation and Standing Judge is the judge who is in the prosecution department. Their ranks are equivalent and they have an important role related with investigation and adjudication of disputes.
1.1. Supreme Court Judges and Prosecutors
The Supreme Court has ten judges and four prosecutors. The members of the Supreme Court include President, Vice-President, and judges.
1.2. Appellate Court and Prosecutor
Appellate Court has nine judges. The chief judge of the court is the President of the Appellate Court. Prosecutors represent the state in criminal and civil cases.
1.3. Judges and Prosecutors in Courts of First Instance
In each court of the first instance, there are three judges and two prosecutors.
1.4. Clerks
The clerks have the daily responsibility of administrative work in the court. They are the secretaries to judges and prosecutors.
1.5. Bailiffs
The bailiff is a judgment executing officer in civil and criminal cases.
V. Conclusion
In brief, Cambodian judiciary system has improved and changed since the arrival of the UNTAC in 1992. Up until now, the judicial system is much better and is prepared in tiered of court system. Even there is a good court system, but in real practice, we can see that the judge is not independent. Also, because of Khmer Rouge, many judiciaries have been killed so our country is lacking of the professional judges. Moreover, another important problem is corruption. This problem makes the people feel scare of the court, especially for the poor people with the low education. They think that for the court “money means right; money can win”. Therefore, those people lose their rights and they are not protected by the law. In my opinion, the government has to control and make sure that the practice of each branch has to follow the Constitution. Also, the judicial system in Cambodia will be more effective and no more corruption is depended on the government actions to change some of the systems and reduce corruption. Thus, the government should pass the corruption law soon and enforce it in order to punish anyone who is corrupt. For the poor people, the free legal service should be provided to them to have a fair judgment. Moreover, the government should provide the widely broadcasting through the media as the general knowledge for the people so they will have more understanding about the judiciary.
References
- Koy Neam. Introduction to the Cambodian Judicial Process (Phnom Penh, Cambodia March 1998)
- (Critical Legal Thinking, part III, Dr. Wilhelm Treiber/ Andrea Behm/ Hout Sotheary, Khmer Institute of Democracy)
- http://www.ahrchk.net/pub/mainfile.php/cambodia_judiciary/119/
[1] Koy Neam. Introduction to the Cambodian Judicial Process (Phnom Penh, Cambodia March 1998)
[2] Article 11, LOFSCM.
