A Commercial Court proposed as part of a sweeping law aimed at reforming and streamlining Cambodia’s court system would allow “nonprofessional” judges—most likely businessmen—to be elected to serve on the court, according to a draft of the law dated late June.
Those eligible to vote would be determined by a government-appointed panel and for the most part restricted to members of the Chamber of Commerce or former members of the Commercial Court itself.
Proponents of the Commercial Court argue that nonprofessional judges are necessary for the court to have the technical proficiency in commercial matters that career judges may lack.
But some donor groups and legal experts worry that the “nonprofessional” judges may not be sufficiently independent, a recurring concern in Cambodia’s court reform debate.
“The non-professional judge will have the same powers as a career judge,” wrote Sara Ferrer Olivella, who works on legal and judicial reform issues for the UN Development Program.
“This poses a further question over the independence of such judges and the Commercial Court itself from the Commercial sector.”
But Ferrer Olivella also stressed that the draft court reform legislation, officially known as the “Law on the Organization of the Courts,” is a work in progress, with the Ministry of Justice working alongside the Council of Jurists to address concerns about independence.
Nonprofessional judges will serve up to three two-year terms on the court, according to article 52 of the law.
The necessary qualifications: “a businessperson with the age not less than 35 years old and his/her business registered with the Ministry of Commerce at least 2 years,” according to article 60.
The law states that three judges shall preside over the court but does not state how many will be professional and how many nonprofessional judges.
“The law does not state qualifications, so I would be concerned about their competence,” Cambodian Defenders Project Executive Director Sok Sam Oeun said of the nonprofessional judges. “I recommend that all three judges be trained professionals.”
In addition, the draft law states that the nonprofessional judges will be elected, but according to article 57 of the law, the list of eligible voters will be prepared by representatives from various ministries—including Commerce, Industry, and Finance—and one from the Council of Jurists.
“The law does not address conflicts of interests,” Sok Sam Oeun said, adding that he wondered who exactly could afford to be a nonprofessional judge—given that article 56 of the law states that they shall receive no compensation for their work.
“Businessmen on vacation,” he suggested.
Representatives from the ministries of Justice, Commerce, Finance and the Council of Ministers will form the court’s disciplinary commission, according to article 68 of the law.
Sok Sam Oeun suggested this would violate the Constitution, which states that the Supreme Council of the Magistracy is responsible for disciplining judges.
Despite concerns about the court’s independence, business leaders in Phnom Penh called the proposed court a step forward for Cambodia.
“In order to attract more investors, we need a proper commercial court,” said Kith Meng, president of the Phnom Penh Chamber of Commerce.
He brushed aside concerns about the nonprofessional judges, arguing that the most important thing was to get the court up and running as soon as possible.
“You have to start somewhere. We have to start and get going,” he said. “You cannot always see the negative, you must see the positive too,” he added, when asked about possible conflicts of interest.
He suggested that the nonprofessional judges would have more business experience than their professional colleagues and could help them negotiate sometimes complicated commercial suits.
Jimmy Gao, president of the Chinese Chamber of Commerce, agreed.
“I think it’s a great progress for the Cambodian government,” he said.
He also said he was not concerned about the nonprofessional judges.
“It could be like an economic adviser,” he said.
Government officials said it was too early to comment on the draft law and warned critics not to jump the gun.
“Critics should wait until the man has put on his pants if they cannot wait for him to put on his shirt,” said Nge Chhay Leang, a Ministry of Commerce Secretary of State who has worked on the Commercial Court legislation.
“It cannot be only legal scholars,” he said when asked about why nonprofessional judges were necessary. “Those who run companies are not completely ignorant of the law.”