Creating a law is one thing, applying it is another matter entirely. As Cambodia bolsters its legal infrastructure, the struggle over the rule of law is increasingly becoming a struggle of implementation.
The difference between paper and practice is nowhere clearer than in four provincial courts, which don’t have enough judges on staff to comply with the new criminal and civil procedure codes adopted in recent months.
The new criminal procedure code, which became effective in August, mandates that a panel of three judges presides over felony cases. Only one judge is required for misdemeanors and petty offenses.
The new civil procedure code, which became effective in July, also requires that three judges preside over cases involving property or law suits of 5 million riel, around $1,250, or more.
But the Preah Vihear, Mondolkiri, Ratanakkiri, and Kratie provincial courts only have two judges apiece.
Theary Seng, director of the Center for Social Development, said the shortage of judges could add further delay to the already laggardly application of justice in the courts of Cambodia.
“This is a big problem,” she said. “If there are not enough judges, the procedure is not legal and can’t move forward.”
Delays due to lack of judges, she added, would violate a defendant’s right to a speedy trial. “The courts must provide justice that is appropriate and on time.”
The shortages reflect, in part, how recent the formalization of Cambodia’s judicial system is.
The Khmer Rouge wiped out almost all of the nation’s lawyers and judges and the Supreme Council of the Magistracy says there are 226 judges and prosecutors in Cambodia today.
The Royal School for Judges and Prosecutors didn’t graduate its first class, of ’55, until 2005, said Vann Phann, the school’s director. Vann Phann added that remote provincial courts have typically had light caseloads and thus haven’t been sent many new judges.
Pean Ein, the director of Kratie Provincial Court, said last week that he has already made one request for an additional judge from Kompong Cham province to preside over felony cases scheduled for Sept 26.
He said he was hopeful that by next year, when more students graduate from the Royal School of Judges and Prosecutors, there would be enough judges to send some new blood to Kratie. In the meantime, he added, the court is stuck paying for the meals of visiting judges from nearby provinces.
“The law requires it, so it is difficult,” Pean Ein said. “We need to collect five to six cases and hold the trials all at one time.”
This month, the Ratanakkiri Provincial Court cited a lack of judges in delaying by one month a hearing in a land dispute case that Jarai minority villagers brought against Keat Kolney, the sister of Finance Minister Keat Chhon.
Mondolkiri Provincial Court Director Lou Sou Sambath said he has made repeated requests for two more judges to come to his court, but to no avail. “It is not enough,” he said, adding: “I ask every year but none come.”
His court, he said, is using the old criminal procedure code for cases filed before August and will request additional judges from Kompong Cham Provincial Court, which has nine judges, for new felony trials as they arise.
In Stung Treng province, provincial Court Director Soa Savuth said he’s worried that his court’s four judges won’t be enough. “There are four judges [now] but sometimes they can be busy and have problems with their health,” Soa Savuth said.
Soa Savuth said that he would request additional judges from Kompong Cham and Kandal province, which has 12 judges, when needed.
“We have to use the new procedure, but until now, there is no problem,” he said.
So far, the personnel shortage has provoked little outcry, perhaps because the legal codes are so new.
Sok Sam Oeun, director of the Cambodian Defenders Project, said that judges should be transferred between courts to make up the shortages.
But, he added, in practice, the new laws calling for more judges aren’t likely to bring more justice.
“With three judges, it is even more injustice,” he said. “Two judges at least have to be bribed,” he added.
Ang Udom, the head of the legal unit at the Center for Social Development, which monitors six of the nation’s courts, said he hadn’t received any complaints of delay due to a lack of judges. He said justice is often slowed by a lack of will.
“Sometimes the first-in cases are tried later, and late-in cases are tried first,” he said. “Sometimes it takes years.”
Hy Sophea, a Secretary of State at the Ministry of Justice, said that the ministry is well aware of the shortages and has directed provincial courts to request judges from nearby courts as needed.
And more judges are in the pipeline.
Vann Phann, of the Royal School for Judges and Prosecutors, said that by 2012, over 500 new judges and prosecutors will have graduated, more than enough to redress any shortages.
The school’s first graduating class, in 2005, consisted of 36 judges and 19 prosecutors, Vann Phann said. Another 55 judges and prosecutors will graduate in May 2008 and 63 more will graduate in 2009, he said.
They will be sent across the country according to need, he added.