The last of three draft laws written with the aim of cleaning up the courts establishes four new judicial chambers, but legal and political experts worry that it does little to loosen the grip of Prime Minister Hun Sen’s Justice Ministry over the courts.
The draft Law on the Organization of Judicial Bodies, obtained this week, says it aims to ensure the independence of the courts, defend citizens’ freedom, enhance the effectiveness of public services and guarantee justice. Drawn up by the Ministry of Justice, the draft law is to be put before the Council of Ministers this week.
The law gives Cambodia’s Justice Minister the power to set up chambers within courts of first instance, the Appeal Court and the Supreme Court to deal with criminal, civil, commercial and labor cases. Instead of having judges specialize in these disciplines, it would use a rotating model, whereby judges would investigate and try cases in different chambers.
“The functioning of the specialized courts as stated in Article 14 of this law must be made with the Justice Minister’s prakas,” the draft law said, referring to ministerial administrative decisions.
It does not give court presidents the power to appoint judges to sit in the chambers. Rather, it stipulates that “if there is a request from one or more judges from other courts to fill the composition of this specialized court, the president of the first court must make a request to the Justice Minister.”
Sok Sam Oeun, a legal expert and executive director of the Cambodian Defenders’ Project, said after reading the draft law that it would be preferable to have judges assigned to one specific chamber.
“I am concerned with this,” he said. “Rotating judges between different chambers…. We make distinct chambers because we want judges to have special skills and distinct roles—if they do not, then it means things will stay the same as right now, so you would not need separate chambers,” he said.
The draft law also fails to give a clear explanation as to who would adjudicate the cases.
Article 24 of the new draft law states that “the commerce chamber will try the cases with two advisers who are businessmen and have commerce knowledge,” to be appointed by the Justice Minister. It does not elaborate further.
“For me, I do not support this idea,” Mr. Sam Oeun said. “I think all three judges should be professional judges. The Ministry of Justice would appoint the laypeople and consult with the Ministry of Commerce. This law gives a lot of power to the Ministry of Justice.
“[A] very big concern is the commercial court for me,” he added. “It would be better for the government to take care…of the commercial court, because then we can make it more independent and competent. It can make investors trust our system.”
Mr. Sam Oeun said he had similar concerns about the way that labor cases would be heard, because in addition to the judge, “two jurists would be an employer and an employee.” He said cases would be better resolved by including representatives from the Labor Council.
Rights groups have complained that the drafting process is not transparent and that they are not being included in the process.
Political analyst Kem Ley said achieving neutrality in the courts is unlikely given the political situation and the manner in which the draft law has come about.
“The CPP is not willing to strengthen the function of the court,” he said. “In this situation, the draft law goes from the ministry to the Council of Ministers to the National Assembly. It doesn’t look at the function of the court, but indicates how to control the court from the government.”
He stressed that the Ministry of Justice was “violating its role” in being so closely involved with the drafting of the law.
“I don’t know who created it, but it should have been a transparent consultation from the very beginning,” he said.
Also notably absent from the law is the establishment of a separate chamber to deal with cases involving minors, something that has been long demanded by legal and rights groups.
“At first, we cannot find juvenile courts mentioned, so I recommend to include them in the law,” Mr. Sam Oeun said.
“Unicef and the government have been talking a lot about a juvenile system, so it’s better for the government to include it in this law and specify some different special procedures for juveniles,” he added.
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