Court monitoring

Respect for strong values is the key to citizens’ trust in their courts.1 The international values recognized for judges are independence and impartiality, integrity, equality of treatment, diligence and competence. A judge cannot both decide a case and have a personal interest in its resolution. In their public and private lives, judges must be examples of righteousness and dignity, in order to give an image of trust in justice and their independence.2

Article 129 of the Constitution of the Kingdom of Cambodia requires judges to respect high standards in the performance of their duties “with strict respect for the laws, wholeheartedly and conscientiously”.3 The law provides that they are required not to commit any act that could harm their own honor and dignity and the prestige of the judiciary in their way of living, while remaining politically neutral and applying a strict code of ethics in the performance of their duties.4

However, Cambodian justice is perceived as the most untrustworthy public institution in the eyes of Cambodian citizens.5 According to international rankings, it is also among the most unreliable in the world, the last for the Asia-Pacific region according to the WJP Rule of Law Index.6 Courts are often described as corrupt and biased, serving the government and the economic elites. Trials are known to be expensive, lengthy and often run a long time in particular for cases involving political power, land or environmental issues.7

There are two main categories of court monitoring actors in Cambodia. First, the organization of the judiciary includes institutions in charge of monitoring the proper functioning of justice and the integrity of judges’ behavior, in accordance with laws and regulations. Secondly, NGOs and civil society organizations play an important role in monitoring justice, documenting possible abuses during trials.

Entry grate of the Supreme Council of Magistracy (SCM) on the Preah Noromdom Blvd, Phnom Penh, Cambodia. Photo taken by the Google Street View in August 2014. License is not specified.

Regarding the institutional monitoring of justice, the two actors are the Supreme Council of Magistracy (SCM) and the Ministry of Justice. Under the Constitution, the Supreme Council of Magistracy was established “in order to guarantee the independence of the judiciary, maintain discipline of judges, and to assure the good functioning of the courts of the Kingdom of Cambodia.”8 Nine members, including the Minister of Justice, the President of the Supreme Court and the General Prosecutor attached to the Supreme Court compose the SCM. The Senate, the National Assembly, the judges of the courts of appeal, the prosecutors of the courts of appeal, the judges of first instance and the prosecutors of first instance shall each elect one member of the Council.9 According to some, the presence of the Minister of Justice as member of the SCM contravenes the principle of the independence of the judiciary by the presence of a representative of the government and therefore of the executive branch.10

The SCM is responsible for the appointment of judges, the management of their careers and advancement, and disciplinary measures.11 The Law on the SCM establishes a disciplinary council, which has jurisdiction over penal matters related to judges and prosecutors (the “Disciplinary Council”). All complaints regarding judicial conduct must first go to the Minister of Justice, who acts as a preliminary filter.12 Disciplinary proceedings are held in private and their outcomes are not ordinarily publicized.13

Judges who are found guilty by the Disciplinary Council of failure their duties or having acted dishonorably are sanctioned by the SCM.14 The sanctions range from verbal reprimands for minor violations, to removal revocation or forced early retirement of status as a judge for major ones.15

Disciplinary proceedings are very infrequent against judges, in comparison to the pervasive and open misconduct in the judiciary reported by the NGOs and CSOs. Statistics are not available on disciplinary proceedings. The apparent lack of disciplinary proceedings may discourage individuals from making complaints against members of the judiciary who engage in misconduct. Disciplinary proceedings are often seen as a means of reprimanding judges who take decisions against the will of the political power.16

The Ministry of Justice is responsible by law for the operational and administrative management of the judicial system. It is therefore in charge of the infrastructure and budget of the courts.17 In practice, the Ministry’s influence on the judicial system is very important, since the Minister or their representatives are members of all decision-making bodies of the judiciary. In a way, it monitors the courts. Some commentators say that it ensures that judgments are in accordance with its political directions.18 Apart from institutional actors, NGOs and CSOs are very active in Cambodia, particularly in Phnom Penh, attending trials or analyzing judgments in order to detect breaches of the Code of Ethics or standards imposed on judges to ensure a fair trial. These organizations have set themselves the task of identifying cases where judges have apparently not respected rights to a fair trial, in order to alert the public.

For example, the Cambodian Center for Human Rights (CCHR) regularly publishes reports on the adherence of Cambodian courts to “international and Cambodian fair trial standards”.19 In 2018, the CCHR reported that 21% of the defendants in the monitored cases were not represented by a lawyer and that in 65% of the cases monitored, the judge failed to inform and explain the defendant about their right to remain silent.20

The United Nations’ Office of the High Commissioner for Human Rights also monitors trials as part of its wider human rights monitoring work in Cambodia.21

These organizations can coordinate with other bodies to alert the international community to encourage the Government to improve access to justice for Cambodian citizens.22 Some international organizations may also prepare reports on the situation of the judicial system, often in partnership with local organizations to identify the shortcomings, both in terms of respect for the rights of the defense and in terms of the lack of independence and insufficient resources of the judicial institutions.23

Related to Court Monitoring

References

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