Rule
of Law
(i) Introduction
Following a deadlock lasting nearly a year, two Cambodian
political parties finally reached an agreement to form a new coalition
government, which was approved by a vote in the National Assembly on July 15th
2004. Yet once again the government formation was controversial, with the vote
on the Additional Constitutional Act that allowed a package vote - This Act was
not ratified by the King, but by the 2nd Deputy Chairman of the Senate.
Despite these setbacks, NGOs call upon the new government
and National Assembly to strengthen the institutions that are meant to uphold
the rule of law and protect human rights in Cambodia, and to encourage respect
for the Cambodian Constitution.
(ii) Key Issues
NGOs would like to remind politicians of their duty to the Cambodian people to respect the promises they made during the 2003 national election campaign and the conditions agreed before the formation of the new government, and call upon them to take strong action to tackle endemic problems of poverty and corruption, and to create a healthy legal system promoting liberal democracy and human rights.
Institutional
reform
The NGO sector recognizes the development and publication of the Legal and Judicial Reform Strategy published by the government in 2003. It looks forward to the effective and efficient implementation of reforms within this sector.
A large number of key existing institutions should be subject to fundamental reform including the National Election Commission (NEC), the Supreme Council of the Magistracy (SCM), the Constitutional Council, the Cadastral Commission and the National Audit Authority. Their position within the overall system needs to be written into the Constitution in order that they are protected and provided with legal force and stability. Fundamentally, they need to be independent and non-partisan in nature and membership, which requires the creation of a selection committee to nominate the members of these institutions. They need to act in a competent and credible manner, which requires the strengthening of quality human resources, skilled staff, and sufficient financial resources. These bodies need to be monitored by mechanisms within the National Assembly and Senate in a way similar to the nine commissions of the National Assembly and the Senate.
Non-Existing
Institutions and Law
New
commissions, including at the very least an Anti-Corruption Commission and a
National Human Rights Commission, should be established as soon as possible to
international standards; that is, they should be independent, non-partisan,
competent and credible.
The
new government will need to address the need for the creation of new laws to
ensure that the legal system is able to deal with ongoing critical problems.
These new laws need to include, as a matter of priority, a new Penal Code and a
law on criminal procedures, a law on access to information, a framework for
civil legislation, and a system of administrative complaints.
Laws also need to be developed to regulate key institutions and provide a
framework for good governance and accountability in the public sector. The
current law on demonstrations should be replaced by the new one. There should be
also a Statute on Magistrates, at the very least safeguarding the integrity of
the appointments processes and ensuring that judges and prosecutors are
non-partisan and enjoy personal and judicial independence, unaffected by
personal influence or private interest. Further, the new government needs to
develop a Statute on Armed Forces and a Statute on Civil Servants.
The
Statute on Civil Servants should be amended to ensure the political impartiality
of civil servants and to safeguard their integrity and accountability as well as
provide just rules of recruitment and promotion on merit. The Statute on the
Armed Forces and the Police Act should be amended to mandate that the armed
forces and police be depoliticized and non-partisan.
Laws
also need to be passed to deal with specific critical problems which continue to
plague Cambodia. High priority should be given to the adoption of
Anti-Corruption legislation, which needs to be addressed by a legislative
package (statutes, amendments in existing laws, by-laws and so on), and
legislation to combat trafficking in human beings and domestic violence. In
order to ensure a more transparent political situation, laws need to be
developed on financial management of political parties, and on the declaration
of assets as a chapter under Anti-Corruption law, which should ensure that all
the members of the government declare their assets before and after taking
office.
Finally
a National Congress Law must be created soon to fulfill the promise laid out in
Chapter XIV of the Constitution. By enabling “the people to be directly
informed on various matters of national interests and to raise issues and
requests for the State authority to solve” an effective National Congress will
support the strengthening of politics at all level of society and improve public
participation within the political life of the country and transparency in
public processes.
Amendments to the Constitution
Events in 2004 have further demonstrated a worrying lack of respect for the Constitution amongst Cambodian politicians and legislators, like in the package vote.
The apparent disregard of the Constitution – the highest law in the country – is indicative of the extent to which Cambodia functions under the Rule of Law. NGOs have previously recommended amendments such as requiring a simple majority to form a government, thereby averting the political crises that have developed following every national election since the Paris Peace Accords. But major constitutional amendments such as these should not be made for political expediency, but following sustained, consultative deliberation and only during the course of a genuine governmental mandate. Much greater attention should also be given to fulfilling existing constitutional requirements, such as the creation of the National Congress described above.
Code
of Conduct
There are at least three points to be considered: firstly, the code of conducts for magistrates (which is developed by their professional association on basic principles enshrined in the law); secondly, the code of conduct for civil servants (which should be all adopted in the form of a law); and thirdly a code of conduct for public officers (members of the government and elected representatives), the principles of which should be adopted by constitutional norm (especially when it comes to incompatibilities).
Codes of conduct are essential to good governance and necessary in developing accountabilities and responsibility in the government. These codes of conducts must be actually enforced and implemented.
If the codes of conduct are to be effective it is necessary for a mechanism to be created in the National Assembly and the Senate whereby members of the government, National Assembly and Senators can be sanctioned if they violate the codes of conduct.
(iii) Recommendations
The civil society is optimistic that the three parties will accept the following recommendations for the benefits for the whole nation:
Undertake reform of existing institutions such as the NEC, SCM, Constitutional Council and National Audit Authority to ensure their independence, transparency, capacity as well as reinforcing their legal positions in the Constitution and developing effective monitoring systems.
Establish commissions such as an Anti-corruption Commission and National Human Rights Commission which are independent, non-partisan, competent and credible.
Develop and support the passage through the National Assembly and Senate of new legislation including a Penal Code, Civil Code, Criminal Procedures Law, Anti-corruption Law, Access to Information Law, Demonstrations Law, Domestic Violence Law, and Anti-trafficking Law.
Develop laws to ensure that key institutions such as the judiciary are non-partisan.
Develop new laws on financial management of political parties and on the declaration of assets which will ensure that all members of government must declare their assets before taking office.
Amend the Constitution to support and strengthen the process of establishing a democratically elected government, including allowing only a simple majority in a national election to allow a government to be established, and limiting the number of terms a prime minister can serve to two.
Establish a mechanism in the National Assembly and the Senate which will sanction members of the government, the National Assembly and Senators if they violate the code of ethics.
For
more information on the issues raised in this paper, please contact the
Cambodian
Human Rights Action Committee (CHRAC) at:
1. Dr. Kek Galabru, Chairperson of CHRAC, President of LICADHO
Tel: 012
802 506, E-mail: licadho@camnet.com.kh
2. Mr. Thun Saray, President of ADHOC
Tel: 016
880 509, E-mail: adhoc@forum.org.kh, adhoc@online.com.kh
3. Mr. Sok Sam Oeun, Chairperson of Legislative Sub-Committee of Action Committee,
Executive Director of Cambodian Defenders Project (CDP)
Tel: 012
901 199, E-mail: cdp@cdpcambodia.org