CAMBODIA: Prime minister's outburst invites questions about Cambodian judiciary
May 11, 2006
In his latest outburst, Cambodian Prime Minister Hun Sen on May 11 assailed criticism of government choices for 17 judges to sit on the international tribunal for former Khmer Rouge leaders. Some of the government's choices have been described as unsuitable for the seats to which they have been nominated. Before an assembly of law students, Hun Sen reportedly likened his critics to perverted sex-crazed animals, among other things.
People from outside of Cambodia may wonder as to why incompetent persons have been nominated for an international tribunal, and why the prime minister was unable to tolerate even elementary criticism of his choices. The reason for both is that although competence, independence and impartiality are in other parts of the world understood to be prerequisites for an effective functioning judiciary, they are not yet at all understood by the Cambodian authorities, and least of all the prime minister himself.
When in the 1980s Cambodia was recovering from the destruction caused by the Khmer Rouge, it was run by one party, which subsumed all state functions. There were no distinctions between the legislature, executive and judiciary. The central committee ran everything. "Judicial officers" were selected from among party cadres. Their function was to protect socialist legality under the control of the ruling party. They did not need any specific competency as judges. Nor were they expected to act independently or impartially. Their contribution was to follow instructions and maintain social stability. The Supreme Court consisted of central committee members who were appointed to ensure that party orders were properly implemented. In all important political matters the Supreme Court did what the party wanted. For example, in a "trial" of former Khmer Rouge leaders the "judges" performed the roles assigned to them by the party.
This is what Hun Sen understands to be a judiciary. His notion of a court is that it will condemn and punish whoever is brought before it--as quickly as possible and as expected by the state. So when judges were needed for the new international tribunal, he simply nominated those that will do the job in accordance with these expectations. Among them is the judge who condemned opposition parliamentarian Cheam Channy to seven years in jail for conspiracy to overthrow the government. Hun Sen has good reason to trust that he is the man for the task.
Some people misunderstand Cambodia by simple reading of its constitution. This document sets out the parameters for a liberal democracy, expressly recognising the separation of powers and independence of the judiciary. It was adopted by the Cambodian people with full agreement from Hun Sen and his party. But what value does this constitution have when if violated there is no higher judiciary in the country that has the competence and power to make independent determinations? No court exists in Cambodia to give life or meaning to this constitution, including the Constitutional Council.
Serious reforms are needed if the concept of an independent judiciary is ever to have meaning to Cambodians, including their prime minister. Despite the immense work of the UN Transitional Authority for Cambodia and all the other international efforts over the last 13 years, no serious attempt has been made in this direction. The international community will now reportedly spend some 65,000,000 US dollars on the proposed international tribunal. How much is it willing to spend on Cambodia's judiciary? A well-spent fraction of this amount would suffice to make far-reaching improvements in the quality and competence of the country's judges and courts. If such work had begun in 1993, by now the Cambodian people and their leaders might have had the experience of seeing some more competent persons sitting as judges. They might have understood why a court should be separate from a ministry. If such assistance were to begin now, in five to ten years time they may yet be obtaining such knowledge and experiences.
The latest outburst from Hun Sen is an opportunity for reflection and discussion among international and domestic groups working on human rights and the rule of law in Cambodia. What is needed to introduce a competent, independent and impartial judiciary to Cambodia, in concept and in reality? The prime minister's fuming should not simply be put down by attacks on his motives for making specific appointments to the Khmer Rouge tribunal. Whatever be the motive, genuine incomprehension among policymakers is an extremely serious matter that cannot be ignored. It can be addressed, but only through significant reforms backed by tangible and substantial support.
The Asian Human Rights Commission is of the view that the best way to honour the memory of those whose lives were sacrificed in one of the greatest tragedies of the twentieth century--the Khmer Rouge's reign of terror--is to bring an independent and competent judiciary to Cambodia. Without this, all the ado about an international tribunal will only result in more of the same from the Cambodian leadership, and for the Cambodian people.