Donors Should Demand Real Reforms for Judicial Independence
The secrecy surrounding the draft laws has not hidden the fact that they would effectively allow a takeover of the courts by the government and the CPP. Promises of judicial reform to donors will remain a cynical joke until the government sets up a truly independent body to appoint judges and oversee the judiciary.
(New York) – The Cambodian government should withdraw three draft laws on the judiciary that undermine judicial independence protected by the constitution and international law, Human Rights Watch said today. Cambodia’s donors should publicly oppose the drafts, which would further entrench Prime Minister Hun Sen’s government’s control over Cambodia’s courts. The laws could be taken up by the National Assembly as early as May 5, 2014.
The proposed laws put the minister of justice at the center of all key decision-making by the judiciary and by the Supreme Council of the Magistracy (SCM), the body charged with appointing, disciplining, and overseeing the country’s judicial system.
This would give the government effective control over the judicial branch, depriving it of its independence. Cambodia’s 1993 Constitution, consistent with international law, guarantees that the judiciary “shall be an independent power” and that “[t]he Legislative, Executive, and the Judicial powers shall be separated.”
“The Cambodian government has made annual promises to the Cambodian people and donors to take steps to establish an independent judiciary, but has utterly failed to keep them,” said Brad Adams, Asia director. “By enacting laws empowering the justice minister over the judiciary’s ruling body, Hun Sen can formalize his de facto power over the courts. If these laws pass, it is farewell to any hopes of judicial reform.”
The government of the ruling Cambodian People’s Party (CPP) has for more than two decades used its control of Cambodia’s courts as a tool for political purposes. The courts are notoriously corrupt, lack competence, and have frequently tried and sentenced activists, journalists, and political opponents after unfair trials, which has been criticized by Cambodian lawyers, United Nations human rights experts, local and international organizations, and foreign donors.
The draft laws sent to the National Assembly are the Law on the Organization and Conduct of the Supreme Council of the Magistracy (the SCM Law), the Law on the Statute of the Magistracy, and the Law on the Organization of Court Organs. The SCM Law would replace a 1994 law that failed to protect judicial independence from government and CPP control over the courts. The latter two laws should only be submitted to the National Assembly after a proper SCM Law is enacted.
The 1994 SCM law permitted the king, who under the constitution is chair of the 10-member SCM, to delegate chairmanship to the minister of justice. This arrangement, heavily criticized at the time, permitted the CPP to retain control of the courts. SCM members have included senior CPP members, such as Supreme Court chair Dith Munty, who is number six among the CPP leadership. Like all senior CPP members, Munty has placed party loyalty over his official responsibilities.
“After years of outrageous foot-dragging, the government suddenly wants to rush through seriously substandard laws, claiming this is proof of its commitment to ‘deep-going reform,’” Adams said. “Nothing could be further from the truth.”
The Supreme Council of the Magistracy has consistently failed to protect judges from interference with judicial independence by the justice minister or other ministry officials, the Council of Ministers, and other members of the government, armed forces, gendarmerie, or police. While judges have at times publicly complained about pressure or threats from powerful officials, they have been more forthcoming about the pressures they face and their lack of independence in private conversations with Human Rights Watch and others.
All three laws should be withdrawn at least until they can be adequately subject to public comment.
Human Rights Watch said that the Cambodian government should commit to ending its practice of drafting laws in secret, which makes it impossible for Cambodian citizens, donors, and others from offering comments before laws are approved by the Council of Ministers and the National Assembly. As part of the reconsideration process of the draft judiciary laws, the government should make public an official draft of each law and provide a reasonable period for public comment. On April 28, 2014, the Prime Minister declared that the cabinet does not need to consult civil society about any law, saying draft legislation is not a matter for discussion “on street corners.”
Human Rights Watch has obtained Khmer-language versions of the draft judiciary laws, some of whose contents have also been described in Khmer-language media reports.
“The secrecy surrounding the draft laws has not hidden the fact that they would effectively allow a takeover of the courts by the government and the CPP,” Adams said. “Promises of judicial reform to donors will remain a cynical joke until the government sets up a truly independent body to appoint judges and oversee the judiciary.”
For more on the draft laws on the judiciary, please see below.
Problems with the draft law on the Supreme Council of the Magistracy
The draft SCM Law submitted to the National Assembly keeps the king as the official chair of the SCM but allows him to appoint the minister of justice, who the draft says must be an SCM member, as his royal representative to act as SCM chair. In addition to the minister of justice, the draft stipulates automatic SCM membership for the chair of the Supreme Court and supreme prosecutor attached to the Supreme Court. Of the remaining six SCM members, two are appointed on a political basis by Cambodia’s Senate and National Assembly, respectively.
Under the draft law, the minister of justice is empowered to issue a proclamation defining the procedure for election of SCM members. As SCM chair, the minister of justice convenes SCM meetings and has the authority to participate in council decision-making. The minister can request the appointment, transfer, suspension, and removal from service of judges and prosecutors. The minister can appoint an inspection team to investigate alleged judicial breaches of discipline, oversees the establishment of disciplinary case files, and nominates the secretary general and deputy secretary general of the SCM support staff. The minister submits draft royal decrees to the king on the SCM’s behalf, represents it in its relations with private or public individuals, and is the authorizer of the SCM budget.
A serious effort at judicial reform would remove the minister of justice from the Supreme Council of the Magistracy and instead ensure that all members are independent, without any affiliation to a political party, and professionally competent to carry out their duties.
International Best Practices
International best practices with regard to judicial councils such as the SCM have been set out by bodies such as the Council of Europe’s Consultative Council of European Judges (CCJE). The views of the CCJE include those of members of judicial councils from western, central, and eastern Europe and are particularly concerned with creating independent and impartial judiciaries in places where they historically did not exist. Although the Cambodian government claims the proposed SCM law meets international standards because it was drafted with French government assistance, it does not reflect the relevant international best practices.
A 2007 CCJE opinion provides that for judicial councils to be capable of safeguarding the unfettered freedom of judges to decide cases impartially, in accordance with their conscience and their interpretation of the facts, without any external pressure or prejudice of a political, ideological or other nature, and thus promoting and protecting human rights, the following membership requirements are in order:
- No minister or other member of the executive or administration, no active politician, and no member of the assembly should be a judicial council member;
- The judicial council chair should be a head of state, where the head of state only has formal powers, or be elected by the judicial council itself and be a judge who is not close to political parties and known to be politically impartial;
- The judicial council as a whole could either be composed solely of judges or have a substantial majority of judges mixed with non-judges;
- All judicial council members should be selected on the basis of their competence, experience, understanding of judicial life, capacity for discussion, and culture of independence;
- All judge members should be elected by their peers via methods guaranteeing the widest representation of the judiciary at all levels;
- There should be no interference of any system of judicial hierarchy and no perception of judges’ self-interest, self-protection, or cronyism in selection of judges for judicial council membership; and
- Any non-judges should be chosen from groups such as other outstanding jurists, scholars, or citizens of acknowledged status, and their selection done by recognizably non-political bodies acting free from any subordination to political party considerations.
The CCJE also calls for every judicial council to have:
- Its own secretariat and freedom to organize itself, without being answerable for its activities to any political or other authority; and
- The power and capacity to negotiate and organize its own budget effectively.
The CCJE recommends that draft laws relating to the status of judges, the administration of justice, or otherwise is likely to have an impact on the judiciary should require the opinion of the judicial council before being deliberated by the national assembly.