DEVELOPMENT OF A LEGAL AND JUDICIAL REFORM STRATEGY MISSION TO CAMBODIA (JULY 7TH THRO22, 2000)
THE WORLD BANK
Phnom Penh Office
With the compliments of
Mr. Bonaventure Mbida-Essama
Phnom Penh Office
I was on mission in Phnom Penh from July 9 thro22, 2000, to participate in the supervision of the Technical Assistance Project and launch the process of preparation of the legal and judicial reform strategy paper. The findings of the supervision mission are to be found summarized in the mission aide mémoire, the final version of which was transmitted to the Government under cover of a letter addressed to the Minister of Finance by the Acting country Director for Cambodia, dated July 31, 2000. This memorandum summarizes the status of preparation of the legal and judicial reform strategy paper.
The legal and judicial diagnostic study was one of the key products of the legal component of the ongoing Technical Assistance Project. It is also being used as one of the building blocks for the preparation of the legal and judicial reform strategy paper. Following the workshop help in April 2000 to review the outcome of the study, the mission had a further opportunity for discussion involving both the legal community and donors on the findings and recommendations of the diagnostic study. A list of persons met during the mission is herewith attached in an annex to this memorandum.
The discussion focused on four issues which also happen to the main areas of concern in terms of legal and judicial reform amongst our Cambodian counterparts and the donor community alike. They are: the law making process, the process of publication of laws, training needs and the judicial process. From and operational point of view, these issues in turn raise two other issues relating to implementation, both of which were also discussed during the mission: development of a legal and judicial reform strategy and institutional arrangements required to implement such a strategy.
The existence of an adequate set of rules is one of the main pillars of the rule of law. In Cambodia, however, the lawmaking process has been anything but systematic. Lawmaking is a long, protracted and sometimes confusing process which does not facilitate the adoption of laws. There is limited capacity in the ministries for the drafting of laws and regulations. Not surprisingly, the legal framework is largely incomplete. The few laws that have been adopted are not backed up by the necessary implementing decrees, let alone the much needed implementation capacity. Inevitably there is a tendency to rule by decrees or sub-decrees, without regard for the hierarchy of laws and other legal instruments.
There are there main challenges facing the lawmaking process in Cambodia. They are the absence of any coherent legislative reform program, the limited capacity to manage and implement the legislative reform agenda, and the total absence of any coordination mechanism in the legislative reform process.
Need for a Coherent Legislative Reform Program. Not surprisingly, bearing in mind the major gaps in the existing legislation in Cambodia, several donors have stepped in to support the preparation of major pieces of legislation by the respective ministries concerned. France continues to support the preparation of the draft criminal and criminal procedure codes. Japan supports the preparation of the civil procedure codes. The World Bank and the Asian Development Bank have provided assistance for the preparation of commercial laws and land tenure legislation, respectively, There has been no agreed program or strategy, however, to guide the process of preparation of these major pieces of legislation, Nor has been consultations amongst either donors or the concerned ministries themselves in the process.
Without calling in question the appropriateness or desirability of each of the drafts currently under preparation, there is a clear need to develop a coherent legislative program which set out the purpose and objectives of the legislative reform program as a whole, as well as the purposes and objectives of each of the individual pieces of legislation. The need for a legislative program was fully discussed and recognized during the mission. Such a program not only serves to set the context for the reform program. It also ensures that the different parts of the program serve to reinforce, not undermine, each other. The Government has recruited a consultant to prepare a draft of a legislative program. The provisional draft of the program has been circulated for discussion.
Limited Capacity to Mange and Implement Legislative Reform Agenda. In view of the limited capacity of ministries to manage and implement the legislative reform initiatives have been driven by donors. In most cases the legislative reform process has been managed by expatriate teams of draftsmen acting under the direct supervision of donors and with little or nor involvement of the local counterparts. There is a clear need not only to involve nationals in the legislative drafting process, but also to develop local expertise in this specialized area of legal activity. A step in this direction was taken in the case of commercial draft legislation currently under preparation in the Ministry of Commerce: under this Bank funded activity, the role of expatriate consultants has been significantly curtailed and the activity has been left to be managed by a managed by a Cambodian lawyer with the support and assistance of short term consultants, both local and expatriate, Similar steps have been taken under other legislative reform activities funded by other donors in view of increasing the participation of local counterparts in the legislative reform process.
The National Assembly and the Senate, we were told, are not better equipped than the executive branch to deal with an ambitious legislative reform program. Most of their members lack the necessary skills, legal and otherwise, to grasp the intricacies of modern legislation which tends to be more and more complex and technical. Nor can they rely on the secretariat of the National Assembly or of the Senate to provide the technical competence and expertise needed to assist in, or facilitate, the review of draft legislation. The inability of the National Assembly and the Senate to deal with the intricacies of draft legislation is a major factor responsible for delays in the lawmaking process. If not addressed, it has the potential to unravel the legislative reform program as a whole. The National Assembly and the Senate have appealed to the Bank for assistance to strengthen their capacity to review legislation. As and when they are submitted, the Bank would do well to respond favorably to their requests for assistance.
Absence of Coordination Mechanism. There are many different ministries, agencies and even branches of government which are involved in the lawmaking process. Sponsoring ministries are responsible for the preparation of individual pieces of draft legislation. The Council of Jurists of the council of Ministers is responsible for the review of all pieces of draft legislation prior to their submission to the National Assembly for adoption. Besides the National Assembly which adopts laws and the Senate which reviews them prior to their adoption, the King also has a role to play in the process of promulgation of laws adopted by the Assembly. Surprisingly, there is no mechanism to ensure coordination in the lawmaking process not just within the executive branch but also between the executive and the legislature.
In the course of discussions which took place during the mission, it was recognized that there was a need to develop a consultative mechanism to ensure close coordination not only amongst the various ministries involved in any draft legislation and the Council of Jurists, but also involving the National Assembly and the Senate as well. The proposal to develop and adopt a legislative reform program is a first step in the development of such a consultative mechanism. But it is only a first step. Consultations amongst the various branches and agencies need to be a continuous process. Such consultations not only serve to allow a regular exchange of views and information amongst the branches and agencies, and thus minimize conflicts between agencies as well as inconsistencies between draft pieces of legislation. They also enable branches and agencies concerned, and the National Assembly and Senate in particular, to program their activities, determine their priorities and equip themselves in advance to address the technical issues involved in each of the pieces of legislation that they are called upon to examine.
Publication of Laws
The rule of law presupposes not just the existence of a set of rules but also that they should be known in advance. It is not enough to have in place an adequate body of rules; equally population. Through its Constitution, Cambodia has fully adhered to this basic principle, Article 93 of its Constitution provides in effect that laws which have been promulgated by the King are to be published in the official journal and brought to the knowledge and attention of the population. Had this not been the case, one of the fundamental principles of every legal system would have been devoid of meaning: the principle that ignorance of the law is not a defense presupposes that laws are regularly published and brought to the knowledge and attention of the population.
Publication of laws not only serves to enhance knowledge of the law. It also helps to build confidence in the system amongst investors and the international community in general. It facilitates the proper application of the law by tribunals, enforcement agencies and other interested parties. It also serves to bring out contradictions and inconsistencies which would otherwise not be apparent amongst different legal and regulatory instruments. Notwithstanding the clear merits of publication and an explicit constitutional requirement to that effect, the official journal is not published on a regular basis in Cambodia.
Under the Technical Assistance Project, the Bank has supported the regular publication of Cambodias laws and regulations in three languages (Khmer, English and French). These laws and regulation, which are produced in a monthly bulletin, are also accessible through the internet and in the form of CD software. These initiatives are being expanded to cover on a selective basis courts judgments and decisions which may be of interest. There is clearly a need not only to strengthen these initiatives but also to take urgent steps to revive the official journal.
There are couple of fundamental issues which the publication of laws raises. And which needs to be addressed. They are, first, the need to ensure the sustainability of the process of publication of laws and, second, the meaning and effect of Article 158 of the Constitution.
Sustainability. As the Technical Assistance Project draws to a close, there are questions being raised about the sustainability of the monthly bulletin of laws and regulations and other publications produced by the legal Reform Unit (LRU) of the Council of Ministers, which the Bank has supported under the project. Questions have also been raised about access to those publications. The publications are produced in three languages and are costly to produce. Accordingly. They have been issued in limited quantities, which are insufficient to satisfy the huge demand that they have generated. A parallel market for the publications even appears to have developed in Phnom Penh. Whilst the publication of the official journal is clearly a governmental function mandated under the Constitution, the same is not true of ancillary publications such as a monthly bulletin of laws and regulations produced in three languages. In the absence of an official journal, there is a strong case for the production by the Government of the monthly bulletin; upon its resumption, however it would be legitimate to question the usefulness or desirability of the Governments continued involvement in such publications.
There is a clear need for the Government to resume as a matter of urgency publication of the official journal. Conversely, the need for a government entity to be engaged in the publication of the monthly bulletin of law and regulations and other ancillary materials would need to be revisited. The questions which have been raised about the Governments ability to pursue such publications on a sustainable basis are quite legitimate. If the private sector is better suited than a Government agency to pursue this activity, it ought to be encouraged to do so.
Article 158 of the Constitution. Article 158 of the Constitution provides that laws and regulations which safeguard state property, as well as the rights and property of private individuals, and are consistent with the national interest, continue to be in force unless and until they are amended or repealed, except to the extent that they are contrary to the spirit of the Constitution. Article 158 of the Constitution has been diversely interpreted. While its meaning appears on the face of it to be quite clear, there are sharp disagreements between those who would prefer to limit its effect to those laws and regulations which were actually in force just before the entry into force of the 1993 Constitution, and those who seek to use its provision to revive laws which had been in force prior to the Khmer Rouge regime but have in effect been repealed by the Khmer Rouge.
Whether one adopts one or the other of the two interpretations will inevitably have a direct impact on the iegal validity of law in force prior to the 1993 Constitution and, hence, on the content and scope of publication. It is evident that an interpretation of Article 158 which seeks to restrict its scope to cover only those laws which were still in effect at the time of the adoption of the 1993 Constitution is of more limited value than one which is capable of reactivating laws which predate the Khmer Rouge regime. To suggest, however, that Article 158 can be used to rehabilitate not only those laws which were in force at the time of entry into force of the 1993 constitution, but also those which had been repealed by a previous regime, is to strain the ordinary meaning of Article 158. It is an expansive interpretation of the provision, which is unlikely to be widely supported.
During the mission a more pragmatic approach was discussed and generally endorsed. Instead of engaging in a fractious and potentially divisive debate on the scope and impact of Article 158, it may be best for the Government, in consultation with the National Assembly and the senate, to determine whether and to that extent there may be laws which had been previously in force and which it may be desirable or appropriate to re-enact with or without modifications. Some such laws may have the merit of having actually been in force and on the statue books in Cambodia, even if, by reason of a historical accident or as a matter of legal interpretation, they are now deemed repealed or inapplicable. It is open to the Government, should it so decide, to propose the formal re-enactment of such laws by the National Assembly on an expedited basis to address major gaps in the countrys legislation which currently exist and are likely to persist for years to come pending adoption new laws.
The civil code is a case in point. There is no civil code currently in force, and it will be several years before the current draft as completed by the large teams of Japanese consultants responsible for its preparation, and probably several more before it is eventually adopted. Meanwhile there are large gaps in the law, including the law relating to succession, which have become a source of extreme embarrassment for judges and magistrates. It is arguable that, pending the adoption of the new civil code, it may be best to revive the previously existing civil code and re-enact it with modifications, as needed, to serve its purpose for a limited duration pending a full debate on, and the adoption of, a new code.
Not surprisingly, training was a constantly recurring theme during the mission. There is a clear consensus on the need for emphasis on training. Whether it is the training of judges and court officers in substantive or procedural rules, or the training of parliamentarians and their assistants in the intricacies of modern legislation and legislative techniques, or even the training of lawyer, notaries and paralegal staff, the need for training cannot be overemphasized. The statistics of the judicial staff are particularly revealing: of the 120 or so judges who are actively employed in Cambodia, barely a handful of them, we are told, have any proper legal qualification.
Considering the huge demand for training that currently exists, there has been-quite understandably a proliferation of law courses offered for the benefit of both prospective lawyers and officials. Apart from the Faculty of laws of the University of Phnom Penh, law courses are offered by the National Economics Institute, the National Institute of Management (NIM) and LRU, among others. The quality of such courses has been uneven at best, and the benefits questionable. There is a clear need to consolidate these different initiatives and strengthen them, whilst streamlining the use of limited resources available of training. The mission was presented with a proposal for a 2-year LL.M. course to be offered in partnership with a foreign learning institution for the benefit of those who have already invested considerable time and effort to follow the NIM course.
While there can be no question about the need for emphasis on training, there a still a couple of fundamental questions pertaining to both the purpose and modalities of the required legal training, which have yet to be addressed. The first question relates to the form of the proposed school or facility required to provide legal training; the second is about its location.
Form of School or Facility. Not surprisingly, having regard to the dualistic system of laws which Cambodia has inherited, these has been considerable debate about the form of the school or facility required to provide legal training. While some have advocated the creation of a special school dedicated to the training of the magistrates, not unlike the French school for magistrates, other perhaps a majority would prefer a less specialized school which would cater for the particular branches of the profession. The French Government is currently sponsoring a proposal for the opening of the school for magistrates, which will presumably be modeled along the lines of the French National School for Magistrates or Ecole Nationale de la Magistrature (ENM). Whatever be the final outcome of this particular debate, it is beast to avoid a situation where limited resources available for training are applied in pursuit of a disparate set of training initiatives, thus foregoing the efficiency gains likely to accrue from a closely coordinated and comprehensive legal training initiative.
It Location. Similarly, questions have also been raised about the location of the proposed school or facility. While some advocate the enlargement of the existing school of administration to include a law school, others favor the creation of an entirely new and independent school of law, and one which would not be subject to the control or authority of any particular ministry of department. The role of the Ministry of Justice in this endeavor also need s to be fully investigated. Its limited capacity has from time to time been cited as a possible obstacle to any direct involvement of the Ministry in the management and supervision of a prospective legal training school facility.
The judiciary is one of the main pillars of any legal system based on the role of law. It provides the mechanism for the proper enforcement of laws. In Cambodia, however, this is not the case. The judiciary is not equipped to assume its rightful role in a rule-based environment. Of the 120 judges who belong to the judiciary, only a handful of them have any proper legal qualification to speak of. In the absence of a law governing appointments and promotions in the judiciary (statut des magistrats), there are no known criteria for their appointments and promotions. It is rumored that cased are often handled and disposed of on the basis of considerations which have little to do with either the application of the law or the merits of cases. Considering that the average monthly salary of ajudge ranges from $15 to $20, it is not hard to imagine that corruption may be a significant factor in arriving at court decisions. Another factor, we are told, is political influence. Under the Constitution, the supreme council of the Magistracy or Conseil Supérieur de laMagistrature (CSM) is mandated to advise the King on measures to safeguard the independence of the judiciary as well as issues of appointments and promotions. The CSM is also responsible for maintaining discipline amongst the judicial staff. In its present form, however, the CSM is perceived as being too dependent on the executive to be effective in the performance of its constitutional mandate.
Quite apart from issues pertaining to appointments and promotion, the judiciary is also faced with other challenges of a more logistical nature. In the municipal tribunal of Phnom Penh, as in other tribunals, there is insufficient office space to house judges and their staff. Office equipment and materials are inadequate or in short supply. The organizational structure of most tribunals does not allow for specialization or the formation of specialized units or chambers. Training opportunities are few and far between. By all accounts, the judicial process is slow. Not surprisingly, the backlog of pending cased before the courts has steadily increased.
As one of the essential pillars of a rule-based legal and judicial environment, the judiciary stands to benefit from each and every initiative that serves to strengthen the rule of law. Many of these initiatives have already been discussed. The adoption of new legislation, whether it is the civil or civil procedure code, the criminal or criminal procedure code, or even new commercial or land tenure legislation, brings immediate benefits to the judiciary in terms of facilitating the application and enforcement of laws. So does the process of publication and dissemination of laws. Similarly, judges are likely to be principal beneficiaries of any training initiatives which are adopted, particularly if such training is provided, as currently envisaged, through a French-style ENM.
But the judiciary also has its own specific needs and peculiarities which need to be addressed. Amongst the issues which are specific to the judiciary are: judges salaries, discipline, appointments and promotions, court organization, judicial procedures and infrastructure needs.
Judges Salaries. The issue of salaries cannot be dissociated from the other issues facing the judiciary, the low salaries of judges are certainly not the only factor, or even the chief factor, driving the alleged corruption in the judiciary, but it is bound to be a factor. Judges cannot be expected to be immune from corrupt influences unless they are provided with a financial package that effectively protects them from corrupt practices and material and pecuniary pressures. To suggest that the reform of the judiciary can be undertaken without a concomitant review of the remuneration package of judges is in effect to condone the existence of corrupt practices in the judiciary and to recognize its unavoidability.
Discipline. One way to increase the risk associated with corrupt practices in the judiciary is to increase judges salaries. Another is to reinforce discipline. The CSM, we are told, has been largely ineffective in enforcing discipline amongst judges and magistrates. The law governing the CSM dates back to December 1994. By all accounts, it has failed to achieve its purpose. There is an urgent need to review the law and amend it, as necessary, to reaffirm the independence of the CSM and vest it with the powers that it needs to enforce discipline in the judiciary and, in so doing, discharge its constitutional mandate.
Appointments and Promotions. In the absence of a law governing the appointments and promotions of judges and magistrates, the criteria for their selection have been to say the least unclear. The adoption of a statut des magistrats is urgently needed to define the role of judges and magistrates and determine the criteria for their appointments and promotions. The draft statute, we are told, has been prepared by the Ministry of Justice, approved by the CSM and submitted to the Council of Ministers for approval and subsequent submission to the National Assembly for adoption.
Court Organization. A draft law governing the organization of the courts has also been prepared and submitted for review by the Council of Ministers prior to its submission to the National Assembly for adoption. It is expected that the new law, when it is adopted, will address some of the weaknesses which have been identified in the court system, particularly in terms of specialization and specialized courts.
Judicial Procedures. Judicial procedures are to be addressed for the most part through the civil procedure and criminal procedure codes, bother of which are currently under preparation. Both procedure codes, however, are unlikely to be ready to adoption for several years. In the meantime, there are complaints that existing procedures are painfully slow.
Infrastructure Needs. During the mission there was considerable discussion of the infrastructure needs of the judiciary which, by all accounts, can be quite considerable. The mission was able to visit the municipal court of Phnom Penh and witness the state of disrepair of the court building, as well as its lack of physical facilities and other amenities. Similar conditions, the mission was told, prevailed in other courts. The need to address the infrastructure needs of the judiciary is one of four main priorities which the Ministry of Justice has identified in its reform program.
Implementation of the Program
Notwithstanding a number of outstanding issues still to be addressed, as well as some areas of divergence in the approach to legal and judicial reform, there is a large measure of consensus both on the ultimate objectives of a legal and judicial reform program and on the eventual elements of such a program. But a consensus on objective and elements alone is not enough to guarantee the success of such a program. Two other factors are key to its success. They are: the adoption and implementation of an adequate legal and judicial reform strategy, and the existence of appropriate institutional arrangements for its implementation.
An Adequate Legal and Judicial Reform Strategy. Although many donors have been actively involved in legal reform in Cambodia, there is a perception that the considerable resources which have been so applied in the process have not been used as effectively as they might have been. One factor which has been cited for the lack of effectiveness of legal reform is the absence of a clearly defined strategy for legal reform and, hence, a perceived lack of coordination bother amongst donors and amongst legal reform initiatives. There is a perception that, in some cases, donors have supported similar or substantially similar reform initiatives but without coordination with one another, whilst, in others, the initiatives that have been so supported have actually been in conflict with one another, In both situations the absence of a clearly defined reform strategy has resulted in a less-than-optimal use of limited resources available for legal reform.
In order to maximize the benefit of any future legal reform program the Bank current country assistance strategy (CAS) for Cambodia urges the Government to adopt a sector-wide or partnership approach to legal and judicial reform, emphasizing close coordination amongst donors, effective use of limited resources and a consensual approach to the achievement of strategic goals. The Government also recognizes the need to adopt and implement a credible and comprehensive legal and judicial reform strategy, with which every new legal reform initiative needs to comply. In consultation with the Bank and other donors, it has engaged a local consultant to prepare the first draft of such a strategy for comments by the Bank and other donors prior to its review and adoption by the Government. The first draft of the strategy paper is due to be produced and circulated for comments in early September 2000. The final draft to be reviewed and adopted by the Governments is expected at the end of September 2000. The final draft to be reviewed and adopted by the Government is expected at the end of September/beginning of October. The final draft will seek to incorporate comments which will have been made on the draft by the Bank and other donors.
Institutional Arrangements. The other main challenge lies in the Institutional arrangement which are put in place to supervise the implementation of any future legal and judicial reform program. Under the Technical Assistance Project, the Government issued an Anukret, dated August 15, 1997 establishing the LRU to be responsible for legal reform in general and the provision of training and assistance in the preparation of legislation. In this capacity, LRU has been responsible for supervision of the legal diagnostic study as well as the first draft of the legal and judicial reform strategy paper which is currently under preparation. Following the workshop held in April 2000 to review the results of the legal diagnostic study, a steering committee was also established by the Government to follow-up on the results of the workshop and assist in the development of the proposed legal and judicial reform strategy. It would appear, however, that the steering committee has not been actively engaged in this process and that its impact to date has been minimal.
In accordance with the Anukret on the organization and functioning of the Ministry of Justice, dated January 20, 2000, the Ministry of Justice is responsible for all matters petaning to the administration of justice and the training of judges. More recently, the Government has issued an Anukret establishing a Judicial Reform Council or Conseil de Réforme de la Justice (CRJ) to be responsible for the design and supervision of judicial reform. CRJ consists of seven members, including the President of the Supreme court and the Minister of Justice who are its President and vice President, respectively, as well as the President of the Court of Appeal and representatives of the CSM and the Council of Jurists. There have been complaints that, as presently constituted, the composition of the CRJ is too restrictive to allow it to achieve its objective.
Bearing in mind that institutional arrangements are key to the success of any future legal and judicial reform program, it is necessary for the Government to ensure that any such arrangements are fully consistent with the needs and objectives of the program. Whilst the LRU may have been the appropriate agency in the past to undertake the implementation of a program whose primary focus was legal reform, the same is not true of a program which is not limited to the executive branch but is likely to be extended to cover both the judicial and legislative branches as well. Any suggestion that a reform program covering the judicial or legislative branch, or both, is to be managed under the exclusive control or authority of a body which reports to the executive is not likely to be well received by either of these other two branches. Similarly, as presently constituted. CRJ lacks the width of purpose and composition to undertake any legal reform initiatives which go beyond the broad confines and competence of the judiciary.
In terms of institutional arrangements there are two alternatives for the Government to consider. The first alternative involves the creation of a brand new council or committee to be responsible for legal and judicial reform, comprised of representatives of each of the branches of government which have a direct and immediate interest in legal and judicial reform. Whilst the proposal has the merit of ensuring adequate representation of each of the branches of government involved, it has the disadvantage that it involves the creation of yet another new entity likely to duplicate the role and responsibilities of one or more entities already in existence. The other alternative presupposes that the composition of the CRJ is likely to be expanded, as has been suggested, to be representative of civil society in general. A duly mandated and expanded Council for Legal Judicial Reform would be a strong candidate to be responsible for the supervision of a future legal and judicial reform program in Cambodia.
Using the legal diagnostic study and workshop as building blocks for the preparation of the legal and judicial reform strategy, the mission engaged in wide-ranging discussions with the Cambodian legal community and donor representatives on the elements of such a strategy, the initial version of which is expected to be available for distribution in early September. As was agreed during those discussions, the initial version of the draft strategy paper will be transmitted to our counterparts in Cambodia and donor representatives for comments. The final version of the draft strategy paper will be transmitted to the Government for its consideration, but not until all comments which will have been made on the initial version by our Cambodian counterparts and donor representative alike have been fully taken into account. In accordance with the spirit which prevailed during our discussions, I also plan to share this memorandum both with our Cambodian counterpart and with our numerous partners in the donor community who took time to participate in our discussions.