Aspects Surrounding Power-Separation of the Kingdom of Cambodia
By: Vicheka Lay
Like other world’s states, Cambodia has adopted the ideology of liberal democracy and Montesquieu’s theory of separation of power into its internal justice administration. One of the most common elements of liberal democracy is the separation between the judiciary, executive and legislative powers. Separation between the three supreme powers of the State is the indispensable approach to a fair trial.
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:
1. 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;
2. The judiciary must be independent of the executive and legislative authorities and of any political party. Persons selected for judicial functions must be honest and competent;
3. The principle of the independence of the judiciary entitles and requires judges to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. They must have decent and sufficient material conditions for the exercise of their functions. Judges must receive suitable training and be remunerated adequately to ensure their impartiality and independence.
There would be no doubt that the Constitution of the Kingdom of Cambodia and the Provision dated September 10, 1992, Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period and other legal instruments in force are evident that Cambodia does accept the separation between judiciary, legislative and executive bodies the supreme approach to a fair trail.
In Resource Guide to the Criminal Law of Cambodia, separation between the three powers would bring these benefits: “having divided the powers of the government in this manner, the doctrine of the separation of powers then require that each of these branches be confined to the exercise of its own function and not be allowed to perform the functions of other branches. Procedures and rules must be established to guide those three branches of the government and to protect and powers of each branch from being exercised by the other branches.”
However Cambodia’s current state of affairs does reveal that Cambodia is facing countless barricades to fair trial. It has been seen that the inter-relation between the judiciary institution and the Ministry of Justice (Executive institution) is probably the most ample barricade for Cambodian paths to fair trail.
Subdecree on the Organization and Functioning of the Ministry of Justice, entered into force on January 20, 2000, states:
The Ministry of Justice has the following functions and duties:
To protect the independence of judges during the course of their duties;
To realize justice for all persons before the laws;
To organize and monitor administrative processes of tribunals;
To manage civil servants who are serving at the Ministry of Justice;
To ensure the functioning of the courts and all prosecutors and prepare various laws governing these institutions;
To educate and disseminate laws concerning judicial affairs;
To ensure proper application of orders and judgments of levels of courts and prosecutors;
To follow up the execution of judgments, in particular, inspection of detention centers and prisons for the purpose of law enforcement;
To form, manage and issue extracts of judgments;
To accept, prepare and manage amnesties or pardons as determined by law;
To conduct international relationships associated with justice and relevant laws; and
To perform other duties as assigned by the Royal Government.
The Ministry of Justice consists of the following structures:
Cabinet of Minister;
Judicial General Inspectorate;
Department of Administration and General Affairs;
Department of Personnel and Training;
Department of Civil Affairs;
Department of Criminal Affairs and Amnesty;
Department of Prosecution Affairs; and
Department of International Affairs.
In his Introduction to the Cambodian Judicial Process, Koy Neam conducted thorough studies on four departments; Department of Administration and Finance, Department of Personnel and Training, Department of Civil Affairs, Department of Criminal Affairs, and the General Inspection of Justice Affairs, which will be one by one revealed below:
Department of Administration and Finance: Assures the proper administrative functioning of the Ministry. It does this be keeping track of incoming and outgoing letters, filing, preparing reports on activities of the Ministry and courts, overseeing a legal research center and library and by preparing and monitoring the management of the annual budget for the Ministry and courts of all levels;
Department of Personnel and Training: Deals with recruitment and training of Ministry staff and court personnel, including the supply of judges, clerks and prosecutors to all courts, and maintaining records of professional performance of judges, prosecutors, and clerks;
Department of Civil Affairs: Participates in the drafting of laws and regulations and refining draft laws on civil, commercial, labor, and administrative matters. It also prepares the guideline to be followed by the courts in the application and interpretation of the meaning of laws and regulations. The Department of Civil Affairs has among other things a duty to examine and handle petitions to the Ministry regarding civil cases, in which concerned parties have complaints about such problems as denial of justice, the execution of civil judgments, etc. The Department also receives and monitors monthly activity reports of the civil courts. It keeps track of the establishment and evolution of civil jurisprudence, assures the implementation of international subpoenas and participates in the preparation of international treaties with respect to judicial affairs.
Department of Criminal Affairs and Prosecution: Participates in the drafting and review of laws and regulations relating to criminal affairs and crime suppression policy. It prepares laws regarding general amnesty, examines proposals for reduction and remission of penalties, reviews requests for extradition by foreign governments or by Cambodian prosecutors, examines draft laws from other ministries that relate to the imposition of penalties and keeps track of the development and evolution of criminal jurisprudence. It also controls the penitentiaries, maintains criminal records and issues abstract thereof.
The Department supervises the activities of the prosecution departments and monitors the operations of the judiciary police in cooperation with the Ministries of Interior and Defense. As does the Civil Department, the Department of Criminal Affairs and Prosecution receives petitions to the Ministry from people who are not satisfied with the way the courts handle cases. It also receives and monitors monthly activity reports of the criminal courts.
General Inspection of Justice Affairs: Though it has not been established, this entity would have a permanent duty to inspect the administrative affairs of all tribunals except the Supreme Court, to monitor courts’ working regimes (except the trial process), and to monitor the ethical conduct of judges to the Minister of Justice on the activities of the tribunals and provide its own comments.
Koy Neam also adds that: “the Minstry of Justice assists the courts by providing technical advice guidelines and circulars regarding the implementation of procedure.” When the courts find it difficult to decide which law should be applied to a given situation, the courts ask for opinions (not binding) from experts of the Ministry. The Ministry is a resource of knowledge in this regards. Besides providing legal opinions to the courts, the Ministry of Justice, through its Department of Administration and Finance, gives administrative support to the judiciary. The Ministry also handles the financial affairs for the recently established Supreme Council of Magistracy and the entire court system.
The last evidence that can witness the power interference between the judiciary and executive power is the Law on the Organization and the Functioning of the Supreme Council of Magistracy, providing that the Council membership be appointed by Royal Decree and 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 Court, Member;
6. The Prosecutor of the Appellate Court, Member;
7. Three judges, elected by judges, Members; and
8. Three judges, also elected by judges, Alternate Members. They replace an absent full member (elected judge).
V. Author’s Recommendations on the Tri-Power Separation
Fair trial would be seen as more clear-cut, only when the three supreme State institutions are absolutely separated in law and practicality. With regard to the functions and duties of the Ministry of Justice, the separation between the judiciary power and the Ministry of Justice, which is the executive power, is not absolute. First function and duty; to protect the independence of judges during the course of their duties, secondly; to realize justice for all persons before the laws, thirdly; to organize and monitor administrative processes of tribunals, fourthly; to ensure the functioning of the courts and all prosecutors and prepare various laws governing these institutions, fifthly; to ensure proper application of orders and judgments of levels of courts and prosecutors, sixthly; to follow up the execution of judgments, in particular, inspection of detention centers and prisons for the purpose of law enforcement, seventhly; to form, manage and issued extracts of judgments, eighthly; to accept, prepare and manage amnesties or pardons as determined by law, shall be the sole duties and functioning of the Judiciary only.
Moreover, the judiciary shall enjoy “autonomous budgets” to support its administration and all kinds of matter within its entity. Should its financial expenditure is administered by the Ministry of Justice, the power separation between the judiciary and executive institutions seem profoundly dim.
The Basic Principles on the Independence of the Judiciary, Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985:
Independence of the judiciary
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
Shall be strictly applied and trained to all the law enforcement officials. And last but not least, Code of Conduct for Law Enforcement Officials, adopted by General Assembly resolution 34/169 of 17 December 1979, shall be stringently inserted into all the law enforcement officials.
Lay Vicheka is a translator for the most celebrated translation agency in the Kingdom of Cambodia, Pyramid Translation Co.Ltd.. He is now hoding other two professions: freelance writer for Search Newspaper; focusing on social issues and students’ issues and Media Liaison Officer for Asia’s first free on-line IELTS consultation website. Lay Vicheka is the expert author for ezine and prolific article contributor to other websites around the world such as articlecity, 365articles, spiderden, talesofasia, etc (Just google him). He is also a volunteer Cambodian-newspapers columnist (Rasmey Kampuchea and Kampuchea Thmey). Lay Vicheka has great experience in law and politics, as he used to be legal and English-language assistant to a Cambodian member of parliament, migration experience (home-based business) and in writing. He is also member of a New York-based research company. Posting address: 221H Street 93, Tuol Sangke quarter, Russey Keo district, Phnom Penh, Cambodia. Tel: 855 11 268 445, vichekalay@yahoo.com