Sectoral Papers | Contributors |
Governance and Transparency | The Center for Social Development (CSD) |
Election Reform | Election Sectoral group / COMFREL |
Decentralization & De-concentration | Commune Council Support Project (CCSP) |
Resettlement | Resettlement Action Network |
Education | The NGO Education Partnership (NEP) & EDUCAM |
Health | MeDiCAM |
Indigenous Minority Affairs | The NGO Forum on Cambodia (NGOF) |
Gender in Poverty Reduction | The Gender and Development Network |
Humanitarian Mines Action | Cambodia Campaign to Ban Land Mines (CAMBAN) |
Child Rights | NGO Committee on the Rights of the Child (NGOCRC) |
Tourism | World Vision |
Disaster Management | Humanitarian Accountability Network in Cambodia |
Agriculture and Rural Development | Centre d’Etude et de Developpement Agricole Cambodgien (CEDAC) |
Land Reform | The NGO Forum on Cambodia (NGOF) |
Forestry and Plantation Development | The NGO Forum on Cambodia (NGOF) |
Hydropower | NGO Forum on Cambodia (NGOF) / 3S Working Group |
Trade and Economic Development | The NGO Forum on Cambodia (NGOF) |
The past year did not demonstrate enough tangible developments or advancements toward reform and strengthening of the rule of law, a sector that is vital to a healthy, well-functioning, viable and democratic government and state. Therefore, once again, NGOs call upon and insist that the RGC and National Assembly provide considerable attention and support 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.
The RGC has had the entire past year to take actions that indicate their genuine commitment to the promises made during the 2003 national election campaign and the agreed conditions before the formation of the new government. Yet, the record of initiatives and actions that would show a strong desire to tackle endemic problems of poverty and corruption, and to create a healthy legal system promoting liberal democracy and human rights, remains disappointing and mixed at its best.
The NGO sector again recognizes the development and publication of the Legal and Judicial Reform Strategy published by the RGC in 2003. It reiterates its great interest in seeing the effective and efficient implementation of these reforms within the sector.
The NGO sector further reiterates that 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 so 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.
The NGO sector stresses in particular the need for the Supreme Council of Magistracy (SCM) to be reformed. Until the SCM is a truly independent body there will be no possibility of real judicial reform. All SCM members must be non-partisan: they must resign from their political parties and break all their political affiliations. Similarly, all judges, prosecutors must be non-partisan and must also resign from any political parties they belong to. Such steps must be taken to break down political influences that have taken hold of the judiciary. Political influence of the police force is also a major problem which causes police to act outside the law. These patterns must be broken down. Police must be independent: they must resign from any political parties and break all their political affiliations.
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. All of these laws must be reviewed and debated by legislators, the RGC and civil society to ensure that their passage comports with acceptable international standards and human rights principles in order to genuinely serve to strengthen the rule of law and democratization. These new laws (many of which are already in draft form) 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.
The NGO sector reiterates that a law on access to public information is essential to create a transparent government, reduce corruption and promote confidence in the government of its citizens. Without freedom of information laws, lawyers cannot properly defend their clients in court as they do not have the right to request information from government agencies which could be required as evidence to support their client's case. The RGC must deliver its promise to civil society and international donors, made at the December 2004 Consultative Group meeting, to begin preparatory work on establishing a legislative framework for access to information and make all efforts to bring relevant legislation before the National Assembly for debate and passage in 2006, as well as allowing informal access to information by the public in the meantime.
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 that continue to plague Cambodia. The NGO sector acknowledges initiatives and actions taken to move Anti-Corruption legislation to the forefront of discussion and debate, and also applauds the passage of new domestic violence legislation. However, we firmly recognize that more work must be done to ensure adherence to international standards before the finalization and enactment of the Anti-Corruption law, such as laws related to the transparency of the financial management of political parties, and on the enforcement of the declaration of assets chapter under Anti-Corruption law, which should ensure that all the members of the RGC declare their assets before and after taking office. Additionally, on the domestic violence law, we need to ensure the effective and meaningful creation and implementation of all necessary regulations to give the law its intended effect and positive impact. Legislation to combat trafficking in human beings still remains a worthy goal.
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 interest and to raise issues and requests for the State authority to solve” an effective National Congress will support the strengthening of politics at all levels of society and improve public participation within the political life of the country and transparency in public processes.
Amendments to the Constitution
Events in the past year continue to demonstrate a worrying lack of respect for the Constitution amongst Cambodian politicians and legislators.
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.
Especially troubling during 2005 has been the continued threat to freedom of speech and expression, rights guaranteed under the Constitution. Repression in these areas continue to take the form of arbitrary denials of peaceful protest movements along with the use of criminal defamations laws to silence legitimate political opposition and commentary. The continued practice of the Executive Branch in issuing decrees followed by pronouncements and practice giving such decrees force of law is a clear usurpation of the Legislature’s constitutionally mandated legislative powers and clear violation of the fundamental constitutional principle of separate and independent branches of government. Finally, there continues to be too many examples of the Executive’s influence and interference in the functioning of the judiciary (perhaps most notably the Prime Minister’s so called “iron fist” policy), which, as the Legislative branch, is constitutionally guaranteed to be independent.
Much greater attention should still be given to fulfilling existing constitutional requirements, such as the creation of the National Congress described above.
There are at least three points to be considered: firstly, the code of conduct 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 accountability and responsibility in the government. These codes of conduct 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 RGC, National Assembly and Senate can be sanctioned if they violate the codes of conduct.
The civil society is optimistic that the three parties will accept the following recommendations for the benefits for the whole nation:
For more information on the issues raised in this paper, please contact
the Cambodian Human Rights Action Committee (CHRAC) at:
Mr. Sok Sam Oeun, Chairperson CHRAC, Executive Director Cambodian Defenders Project (CDP)
Tel: 012 901 199, E-mail: cdp@cdpcambodia.org
Mr. Thun Saray, President of ADHOC
Tel: 016 880 509, E-mail: adhoc@forum.org.kh, adhoc@online.com.kh
Dr. Kek Galabru, President of LICADHO
Tel: 012 802 506, E-mail: licadho@camnet.com.kh
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