Heading for political judicialization?
Kheang Un and Sokbunthoeun So
For some scholars, certain international justice mechanisms can contribute to judicialization at the national level. Hirschl (2008) has proposed that judicialization of mega-politics may account for the growing phenomenon of judicial activism, embracing ‘everything political’, from ‘judicial scrutiny of executive branch prerogatives’ to rulings on electoral processes, restorative justice, and regime legitimacy (p. 98). For Cambodia, establishment of the Khmer Rouge Tribunal, a hybrid court, would fit Hirschl’s definition of judicialization of mega-politics in the case of transitional justice (Hirschl 2008: 93–8). However, it might not justify an assumption of further judicialization of the Cambodian court system. Because the tribunal is embedded in the political system, its impact on the Cambodian judiciary generally is minimal and is unlikely to bring any substantial change to the Cambodian courts (Un and Ledgerwood 2010).
Judicialization of politics requires not only a larger judiciary role and supportive laws but also an independent, efficient, and effective judiciary. The Cambodian judiciary suffers from institutional weakness as a result of limited capacity and low remuneration and also lacks independence. Legacies of war and authoritarian and radical communist revolution have left the Cambodian judiciary in a poor state; it lacks the ability even to appropriately perform its functions. Like most courts outside established democracies, the Cambodian judiciary has historically been highly politicized, and also highly subservient to the executive power and responsive to the interests of the ruling elite. An effective, efficient, independent judiciary would create an intra-system tension that could challenge elite domination and therefore compromise the concentration of power in elite hands that is free of institutional checks (see Solomon 2007: 123).
The lack of necessary judicial capacity and independence renders it unlikely that there will be any judicialization of politics in Cambodia. The situation is reminiscent of Guillermo O’Donnell’s remarks (2004, p. 40) in reference to Brazilian President Getulio Vargas (in office 1930–45, 1950–54): ‘For my friends, everything; for my enemies, the law’. In Cambodia the elites use legal instruments to marginalize political opposition and quell outspoken critics rather than allowing a shift toward judicialization of politics.
Various legal and judicial reforms since the early 2000s—such as projects to build institutional capacity, new laws and regulations, new buildings, and increased salaries for judges and prosecutors—have failed to established the rule of law that guarantees procedural fairness, judicial review of executive acts, equality before the law, and access to justice. For instance, though use of the courts has recently increased, the legal proceedings do not suggest that the judiciary functions independently. The lawsuits have mainly consisted of defamation and disinformation charges against opposition politicians and members of civil society, such as journalists and human rights workers. The suits were orchestrated to strengthen the position of the ruling elites, undermine opposition political parties, and constrict civil and political liberties. Rather than constituting a transition to the judicialization of politics, they represent a continuation of the politicization of the judiciary.
This chapter makes two propositions: (1) the increase in laws and regulations adopted in a series of reforms in the last decade may clarify or broaden the court’s role, but the missing element is judicial independence, without which the judiciary cannot be transformed into an effective tool for checking executive power, and promoting rights and liberties, but will simply reinforce Cambodia’s illiberal democracy and crony capitalism; (2) persistent judicial weakness and lack of independence is related to general political and economic conditions that inhibit emergence of an efficient and professionalized judiciary, preventing the possibility of judicialization beyond cosmetic assertions in formal documents.
We first briefly discuss the history of the modern legal system in Cambodia as background for a discussion of contemporary judicial issues. We then discuss judicial weaknesses and a range of cases brought against Cambodian political opposition leaders, members of nongovernmental organizations (NGOs), and journalists. Next we identify political drivers of the rise in these types of lawsuits, arguing that the trend is driven in part by a change in incentives, leading Cambodian political elites to adopt a more subtle and ‘legitimate’ strategy for politically and economically marginalizing their opponent. We also show that political elites are able to use the courts for this purpose because the judiciary, as a result of institutional, structural, and cultural factors, is very weak. We conclude by identifying where Cambodia’s judiciary is positioned in the universe of judicial politics.
The Modern Cambodian Legal System
Considering its tumultuous history Cambodia has had a relatively short experience of a modern legal system. The French as colonial rulers introduced a modern legal system in the late nineteenth century. Before the French arrived, the legal system was based on customary law, with mediation the mechanism for settling disputes. Though the French introduced a civil code system nationally, the traditional system remained in use at the local level (Broadhurst, Bouhours and Keo 2010: 59). After Cambodia became independent in 1953, two postindependence governments (under Sihanouk, 1954–70, and Lon Nol, 1970–75) maintained the system. However, during these two regimes, the majority of Cambodians had no contact with the judicial system; those who were accused of crimes were confronted with imprisonment and possible execution without judicial review (Amnesty International 2002; Chandler 1991).
The judicial system entirely ceased to function in 1975, when Cambodia fell under the radical regime of Democratic Kampuchea (DK). Finding no value or necessity in law, the DK regime terminated the legal system. That regime, historian Michael Vickery writes, did not have even the ‘pretense of legality’ (1986: 120). Almost all Cambodians with legal backgrounds were killed; other legal resources, such as schools, texts, and court buildings, were either destroyed or converted to other uses. Arrests, sentencing, and executions were arbitrarily decided by DK cadres who acted in the name of Angkar (‘the organization’), resulting in summary executions and grave systematic violations of human rights. The death toll was over two million people (Chandler 1991).
Thus when the People’s Republic of Kampuchea (PRK) came to power in 1979, there was no legal system in place. The PRK, following Vietnamese and Soviet models, reestablished a judicial system so that Cambodia had at least the pretense of legality (Amnesty International 2002). Because of staff shortages, the PRK set up short-term training courses for would-be judges and prosecutors (Donovan 1993: 81–2). However, because the regime considered the legal system an integral part of the ruling party apparatus, the training emphasized Marxist-Leninist doctrine over legal subjects (Gottesman 2003: 243). Prosecutors and judges were usually former schoolteachers and other literate Cambodians with ‘good biography’—no political connection to the previous regime (Gottesman 2003).
The PRK was slowly able to create a formal court system. However, as in other communist states, judges were subservient to the party and the government (Donovan 1993; Gottesman 2003). The official party line demonstrated a complete lack of trust in the courts, and the distrust opened space for both central and provincial government officials to interfere regularly in judicial processes.1
The party or powerful individuals, not the law, determined the course of proceedings and the verdicts of trials. A former minister of justice complained during a meeting of the Council of Ministers in 1986: ‘Sentencing depends on the influence of persons offering an opinion, not on the law’ (Gottesman 2003).
In 1989, soon after Vietnamese troops departed, in anticipation of a possible pluralistic electoral contestation and to dissociate itself from a communistand Vietnamese-dominated past, the PRK initiated a series of reforms, some of which were cosmetic and others more substantial. The government took a new name, the State of Cambodia (SOC), and promulgated a new constitution that emphasized fundamental freedoms and the rule of law. However, under the SOC government the overlap between the judicial and executive branches persisted (as in the colonial system), and the judicial branch was again subordinated to the party. A Supreme Court report to the National Assembly revealed this fundamental problem:
The People’s Supreme Court… is not competent to resolve the suits itself, has only examined them… so that they may be turned over to the competent organs to be dealt with. This is because we felt that the work of receiving and resolving suits is a matter of ideology.
(Fernando 1988: 60)
Given Cambodia’s unique history as the site of one of the twentieth century’s greatest human tragedies, a concern to prevent ‘a return to the policies and practices of the past’ was central to the negotiations for the Paris Peace Agreement (Doyle 1995). The agreement ensured that protection of fundamental human rights consistent with the Universal Declaration of Human Rights and other relevant instruments, including the United Nations Basic Principles on the Independence of the Judiciary, was to be enshrined in the constitution of the government to be formed after UN-sponsored elections. These basic principles include ‘due process and equality before the law, protection from arbitrary deprivation of property or deprivation of private property without just compensation, and freedom from racial, ethnic, religious or sexual discrimination’ (United Nations 1996: 145).
After the 1993 democratic elections, Cambodia adopted a system of checks and balances in which judicial independence was enshrined in the constitution. Article 128 specifies that the judicial body ‘shall be an independent power and shall guarantee and uphold impartiality and protect the rights and freedoms of the citizens’. Article 130 stipulates that ‘Judicial power shall not be granted to either the legislative or the executive branch’.
To safeguard the constitution and protect citizens’ fundamental rights, complex judicial institutions were established to review laws, impartially adjudicate laws, and enforce constitutional provisions on equal protection and the defense of civil and social rights. These judicial institutions, however, do not function appropriately because both state and non-state actors failed to systematically implement and follow laws and regulations. At the same time, government’s politicized decisions are expeditiously and regularly implemented. As such, Cambodia has seen the judiciary politicized and the principle of judicial independence violated, abused, and neglected. To use Gillman’s phrase, the judiciary serves as ‘an extension of a regime’s power and not a shield against it’ (Gillman 1994: 60).
The Cambodian court system encompasses a range of institutions: (1) the Constitutional Council (CC) has review and veto power to exercise its responsibility for ensuring the constitutionality of laws and regulations; (2) the constitutional role (articles 132 and 133) of the Supreme Council of Magistracy (SCM) is to help the king ensure the independence of the judiciary and recommend judges and prosecutors for royal appointment, dismissal, and discipline; and (3) there are three tiers of regular courts—courts of first instance, an appeals court, and the Supreme Court.
All Cambodian courts suffer from lack of independence and resources and from politicization. They are embedded in neopatrimonial structures in which an overarching system of patronage coexists with formal state institutions. As in other branches of the government, merit counts for little within the judiciary— appointments and promotions are based on patronage. Cambodians consider the courts to be unresponsive and servants of party interests, and a 2004 survey revealed that 66 percent of the Cambodian electorate then considered the judiciary to be corrupt (International Republican Institute 2004). Close to a decade later, little has changed. In the 2008 Global Integrity Report , on judicial accountability Cambodia received a score of just 17 out of a possible 100 (2008).
The CC was part of the 1993 Constitution influenced by the liberal ideas stipulated in the 1991 Paris Agreement which set the objective to ensure both vertical and inter-institutional accountability, and political and civil liberties.
The CC, whose constitutional role is ‘to safeguard respect for the constitution, to interpret the constitution, and laws passed by the National Assembly’, has thus far, to quote a Cambodian legal expert Lao Mong Hay, not yet ‘made any decision that could affect the policy of the government or protect the constitutional rights of the people’ (2008). According to the CC Secretariat, from 1998 to 2007 the CC considered or ruled on only 137 cases2 of which, according to Lao, ‘perhaps only one… of all the petitions [the council received] met with a positive decision’ (Lao 2008). Further, the principle of judicial review has not been fully applied because many ‘nonorganic’ laws were not submitted to the CC for review before they were sent to the king for promulgation (Kato et al. 2000: 25–6). In 2009, a penal code was adopted without any known reaction from the CC even though code articles define broadly and criminalize defamation and disinformation, which have been alleged in lawsuits—a practice that threatens the constitutional guarantee of freedom of expression.
The CC is also generally silent toward the executive’s expedient use of subdecrees ‘without the approval of the National Assembly’ and constitutional review with power of law (Transparency International 2006). The practice is to manipulate the generally vague legislature with patronage and rent-seeking. Land policy demonstrates how judicial muteness, or politicization, affects human rights and helps perpetuate corrupt and patronage-based allocation of natural resources, developments that help sustain Cambodia’s illiberal democracy. By law ‘state land’ is divided into ‘state private lands’ and ‘state public lands’. The former can be sold or transferred into private hands but the latter are reserved for the benefit of the public. However, by executive fiat, state public land can be reclassified as private and legally sold or transferred to private hands. There has been no judicial review of the executive’s reclassification of land and its transfer (Un and So 2011).
The issue of CC legitimacy surfaced on the first day of its inception. First, the CC members are alleged to be pro-Cambodian People’s Party (CPP), the dominant party that has controlled Cambodia since 1979. The CC’s absence of independence from the CPP is a product of the imbalanced power configuration among the various political parties which enables the dominant party to prevent the creation of an independent institution which might curb its power in the future (Peou 2000). The CPP employed its control over other institutions to intervene in the selection of members of the CC to ensure a majority of CPP supporters. The CC was formed in 1998, five years after the promulgation of the Constitution and only after pressure from the international community following the 1997 violent conflict during which the CPP ousted the duly elected First Prime Minister Norodom Ranariddh (Brown and Timberman 1998). The international community wanted a functioning CC ready to adjudicate conflicts that might emerge from the 1998 elections. The CC has nine members, who hold staggered nine-year terms. Among them three are appointed by the king, three are appointed by the National Assembly and the remaining three are appointed by the SCM. Only three members are considered to be apolitical and highly qualified because they were appointed by the king, who has been seen as neutral. The other six members are considered to be affiliated with and thus biased towards the CPP (Lao 2001).
The political climate surrounding the period leading up to the establishment of the CC was marred by fear and uncertainty. Some leaders of the United National Front for an Independent, Neutral, Peaceful, and Cooperative Cambodia (FUNCINPEC) and the Buddhist Liberal Democratic Party (BLDP), which were CPP’s coalition partners, were boycotting the National Assembly, following the violent coup d’état orchestrated by the CPP the preceding year. The members of FUNCINPEC and BLDP who remained in the National Assembly were alleged to have been co-opted by the CPP through monetary incentives. It was a National Assembly dominated by the CPP and some ‘renegade’ BLDP and FUNCINPEC members which selected the three members of the CC (Ashley 1998). Some CC members appointed by the National Assembly did not meet the constitutionally required qualifications.3
Many see the SCM, whose role is to help the king to ensure the independence of the judiciary, as politically dependent, subject to CPP influence, and functionally ineffective. It is often criticized for procedural irregularities. The SCM has eight members and is chaired by the king. Currently its members are: the Minister of Justice, the President of the Supreme Court, the Prosecutor General of the Supreme Court, the President of the Court of Appeals, the Prosecutor General of the Court of Appeals, and the three magistrates elected by their peers. The SCM has also been accused of violating its own procedures. According to SCM Law, three appointments to the council are reserved for members elected by the judges. The term for this appointment is five years and the person can be reelected. According to the Office of the United Nations High Commission for Human Rights (UNHCHR) ‘no elections have ever been held for these three elected positions’ (UNHCHR 2007).
The appointments and replacement of judges have also apparently not followed constitutional procedures. Although the Constitution stipulates that appointments and disciplinary actions against judges and prosecutors must be decided by the SCM, past appointments appeared to violate these principles. For instance, the 2007 replacement of the President of the Court of Appeals was made not on the recommendation of the SCM; rather it was decided on the recommendation of the executive branch, which in the UNHCHR’s view, contravened ‘the separation of executive and judicial powers specified in the Constitution’ (UNHCHR 2007).
Most of its current members, except for the king and the prosecutor-general of the Supreme Court, are senior members of the CPP and some even sit on the party’s powerful Central Committee (Lao 2001). The SCM’s lack of independence and transparency can influence a judge’s decisions and behavior. A judge whose decision deviates from what is expected could be transferred to remote provinces, a punishment judges have to keep in mind in sensitive cases. Despite the notoriously corrupt and erratic nature of the rest of the court system, SCM action against corrupt practices and judicial misconducts is rare.
This study focuses on the regular courts, where contentious and controversial legal battles occur. They are the first and most frequent contact point for Cambodians who seek justice when civil and social rights are violated. And the highest court has never, to the best of our knowledge, overturned a lower court verdict in a political case.
The politics of lawsuits
The last decade saw a surge in suits against members of political opposition parties, NGO leaders, and journalists (see Table 10.1). The cases have weakened opposition parties and suppressed civic space and political and civil liberties. In discouraging the activities of civil society actors, they have suppressed democratic aspirations.
The surge in lawsuits coincided with the decline in political violence and coercion which characterized the elections in the 1990s. The decline is a consequence of the CPP’s increased strength in two areas. First, the party is confident in its popularity and the legitimacy of its rural development projects and gift-giving, not only during but also between elections. Second, the CPP can systematically employ the courts as a legitimate means to undermine opposition parties and suppress outspoken critiques. This latter strength is driven by the weaknesses, lack of professionalism, and politicized nature of Cambodian courts. Their shortcomings are multidimensional, with institutional, cultural, and structural factors all closely intertwined.
Members of the Sam Rainsy Party (SRP), the only major opposition party in Cambodia, have suffered severely from successive legal battles. In 2005 four SRP members—Cheam Channy, Chea Poch, Khom Piseth (former member), and Rainsy were charged with establishing a ‘shadow army’ that made ‘the grenade attack in 1997’ and with defamation. Rainsy was sentenced in absentia to 18 months in prison and required to pay 56 million riels in fines. All charges were dropped after Rainsy wrote a letter of apology to the prime minister, and King Norodom Sihamoni issued a royal pardon. In 2010 Rainsy, who is now in self-imposed exile, was again convicted, this time for destruction of public property after his removal of a few Cambodia–Vietnam border markers in an October 2009 protest of alleged Vietnamese encroachment on Cambodian soil and for disinformation and falsification of public documents after he published evidence of ‘alleged Vietnamese encroachment on Cambodian territory in video press conferences and on the SRP website’ (Sokchea and O’Toole 2010). He was sentenced to two years’ imprisonment by the Svay Rieng Provincial Court on the first charge and to 10 years’ imprisonment and over US$15,000 in fines and damages by the Phnom Penh Municipal Court (Sokchea 2011a).
Lawsuits filed by opposition party members against any of the ruling elites have little chance of being successful, and the party lodging the complaint risks a counter-suit. For example, SRP member Mu Sochua’s legal battle began when she filed a defamation suit against the prime minister for ‘derogatory comments about a female parliamentarian’ in Kampot Province in April 2009, remarks that Mrs. Mu viewed as directed against her and as an insult to Cambodian women. The prime minister counter-sued and the court ordered her to pay 16.5 million riels in compensation and fine, to be deducted from her salary. The fine was paid off in November 2010 (Sokchea 2011b).
Since the domestic legal arena has been closed off, opposition parties are turning to foreign venues to redress their grievances. Realizing the weaknesses and partiality of the Cambodian courts, Rainsy allegedly filed or planned to file at least two complaints against ruling party members in foreign courts, including a criminal complaint against the prime minister in a U.S. court in New York for alleged involvement in a 1997 grenade attack that killed 19 people and wounded more than a hundred (Strangio and Sokchea 2010) and ‘an international complaint accusing Hun Sen of crimes against humanity in connection with the K5 plan’ in October 2010 (Sokha 2010). K-5 was the unpopular and abusive policy the People’s Republic of Kampuchea (1979–89) designed to prevent the Khmer Rouge and other resistance forces from infiltrating Cambodia’s interior by creating a defensive line along the Thai–Cambodian border. At the height of the project in 1985 about half a million people were conscripted to mine, demine, construct roads, transport military equipment, and clear jungle under harsh conditions in malaria-infected areas with insufficient food and medical care. Deaths totaled 25,000 to 30,000, and tens of thousands were infected with malaria or maimed (see Gottesman 2003; Slocomb 2001). His reactions may not yield a favorable outcome for Rainsy, but they do raise his profile in the media.
A range of institutional weaknesses exacerbates the lack of professionalism within the Cambodian judiciary. First, the courts face a severe shortage of resources. Budgetary allocations for the judicial system are channeled through the Ministry of Justice (MOJ); only a small fraction of its annual budget of 0.1 percent of GDP went to the courts. In actual monetary terms, the 2007 budget for the MOJ was projected to be US$5 million (Ministry of Economy and Finance 2005). Although there have been some improvements in the physical infrastructure in recent years, Cambodian courts still face a variety of resource shortages. Consequently, superiors instruct court staff to ask litigants for a ‘contribution’—an informal fee—to cover materials and supplement their meager incomes (the problem is more prevalent in the provincial courts).
Table 10.1 Opposition party members, NGO leaders, and journalists who have been sued