Judiciary and courts

The judiciary is one of the three powers, together with the executive (the Government) and legislative (the National Assembly and the Senate), that constitute the state. 1 Its role is to monitor the application of the law and punish its violation. This power is vested in judges and magistrates (and sometimes, to a lesser extent, the juries), who rely on legislative texts (which are drafted by the legislative branch) to make decisions.2

The term “judicial power” can have two different meanings: it can be used when referring to the courts and tribunals themselves or to the power they hold to decide disputes.

Supreme Court of the Kingdom of Cambodia. Photo by Punwath Prum, taken on 24 March 2019. Licensed under CC BY-SA 2.0.

The 1993 Cambodian Constitution established the separation of powers3 and the independence of the judiciary from other institutions. The independence and impartiality of the judiciary is an essential condition for the existence of the rule of law in any country, and is included as part of the Cambodian Constitution.4 The rule of law is the basis for the principle of equality of all before the law, including the state, to be held accountable before the judiciary for any violation of the law.5 Only a judge has the constitutional power to adjudicate, in accordance with the provisions of the law, “conscientiously and wholeheartedly”.6 Under Article 128 of the Constitution, the judiciary is independent, guaranteeing and upholding impartiality and protecting the rights and freedoms of the citizens. Under Article 132, the King is the guarantor of the independence of the judiciary. The Supreme Council of Magistracy (SCM) assists the King in fulfilling this duty.7 The SCM functions independently from the executive power and oversees disciplinary matters involving judges and prosecutors. It also makes requests to the King to appoint judges.8

The fundamental right to a fair and equitable trial is described in laws and codes such as the Code of Civil Procedure9 and the Criminal Procedure Code,10 which govern the rules of evidence, the conduct and impartiality of the trial.

However, the rule of law only exists when the judiciary is genuinely independent and and there is “effective enforcement of the law.”11 Many international and local organizations have said there is no judicial independence in Cambodia and therefore no rule of law.12 Contrary to the principle of equality before the law, commentators have said that some litigants, because of their links with political or economic powers, are favored.13 Cambodia was ranked 125 out of 126 in the Rule of Law Index, published by the non-profit organization World Justice Project in 2019, and appeared last on civil justice and corruption for the Asian region.14 As a result, citizens’ and businesses’ confidence in the judicial system is low. Many prefer to turn to alternative dispute resolution methods, which are considered more efficient and fairer.15

The judicial system is organized according to a three-tiered system16:

  • At the first level, there are the courts of first instance, which have jurisdiction over all disputes except those in the military field,17 and the Military Court. The courts of first instance are geographically competent at their provincial or municipal level (in the capital city of Phnom Penh).18  They include the courts with jurisdiction in different types of disputes: the Criminal Court, the Civil Court, the Commercial Court, the Labor Court and a prosecution office.19 As of early 2021, the specialized Commercial Court and Labor Court have not yet been created, and current  practice is for the existing courts to hear all cases.
  • At the second level, there are the Courts of Appeal, which will hear a first instance judgment challenged by one of the parties and decide it on the basis of law and facts.20 The Court of Appeal consists of a Criminal Chamber, a Civil Chamber, a Commercial Chamber and a Labor Chamber, a Prosecutor’s Chamber and a Joint Chamber for disputes involving several Chambers.21
  • At the third level, there is the Supreme Court, which will hear appeal judgments challenged by one of the parties, and verify only the exact application of the law. This court and has the same organization in chambers as the Court of Appeal.22

Beyond this three-tier system, the Constitutional Council is responsible for verifying the conformity of laws with the Constitution and can hear constitutionality issues that may arise during a trial.23 The Extraordinary Chambers in the Courts of Cambodia (ECCC) are responsible for investigating and prosecuting the key Khmer Rouge leaders with the international community’s help and following international justice standards.24

Related to Judiciary and courts

References

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