Thursday, May 19, 2016

Cambodia’s unruly rule of law

When the World Justice Project published its rule of law index last year, Cambodia came in at 99 out of 102 countries surveyed, ahead of only Afghanistan, Venezuela and Zimbabwe. This ranks Cambodia lower than any of its ASEAN peers — even Myanmar achieved better scores.

In 2010, the UN Special Rapporteur on Cambodia carefully described the situation of Cambodia’s judiciary: ‘a combination of a lack of adequate resources, organisational and institutional shortcomings … has resulted in an institution that does not command the confidence of people from many walks of life’. Confidence is certainly low, with the judiciary being frequently perceived among Cambodians as the country’s most distrusted and corrupt institution, beating even the police force.

Recent developments have not improved the situation. In June 2014, three laws were passed after little consultation that strengthen the position of the Ministry of Justice vis-à-vis the judiciary. A UN Special Rapporteur expressed ‘deep concern’ over the reforms, which ‘could provide an excessive transfer of power from the judiciary to the executive’. A NGO Law, passed in July 2015, only added to these concerns.

In 2015, the International Bar Association published a report that decried the extent of judicial corruption and the inadequate governmental support given to Cambodia’s legal profession.

Most Cambodians therefore simply avoid the courts. This is either because of mistrust or because they are inaccessible to those who need them the most — the poor and marginalised. While written law has never reached very far into Cambodia’s rural communities, with many people traditionally settling disputes through informal conciliation, the lack of legal assistance compounds access to the formal justice system.

Given the government’s insufficient legal aid budget, the majority of legal aid lawyers are provided by donor-funded Cambodian NGOs. But the number of lawyers has actually decreased over the past years, especially in rural areas. This shortage of lawyers is curious, considering that hundreds of students graduate annually from Cambodia’s many law schools. However, only a few dozen lawyers are admitted each year by the country’s Bar Association, whose admission process has been hampered by allegations of corruption and politicisation.

Far from its early resistance to law reform projects, the government now embraces the law. It has manipulated the law to favour members of the elites and to lash out against its opponents, launching numerous defamation law suits against NGO workers and members of the political opposition over the past few years. Kheang Un described this situation as a move towards ‘rule by law rather than rule of law’.

For the many donors who have, over the past two decades, poured significant resources into legal and judicial reforms, scepticism has turned into exasperation. Many cite rule of law as the most frustrating field in the country’s development. As a result, many have simply given up, as Denmark did a few years ago. Others — such as Australia — have reduced their involvement. Although the internationalised justice process put into place through the Khmer Rouge Tribunal has enhanced the capacities of the many Cambodian legal professionals in its ranks, it has had little impact on the country’s justice system so far.

Blame and explanations for this dire state of affairs abound. To begin with, Cambodia had a difficult start. Past violence, especially under the Khmer Rouge regime, devastated the country’s physical infrastructure and its human resources, including its legal professionals. The 1980s then paved the way for a socialist court system that was subordinated to the central party level and subtly nested existing patrimonial structures into state institutions. Many of today’s judges were appointed during that time.

From the 1990s onwards, foreign assistance promoted a global liberal rule of law project, emphasising legislative reform and technical assistance. Hundreds of laws were drafted during those years in an often-uncoordinated manner, training workshops organised and court buildings renovated. But the interventions by and large failed to instil a rule of law culture. The result is a ‘rights ritualism’ or a façade of a relatively well-developed legal framework behind which lies a different reality of poor implementation and practice in the hands of badly paid officials.

But Cambodia is not static, as everyone who frequently visits the bustling capital Phnom Penh can confirm. The country’s rapid demographic changes, in particular, will be a major factor in shaping Cambodia’s future outlook. The current compact between the ruling elite and those who survived the conflicts of the past — stability at the cost of foregoing rights and other aspirations — will change with a new generation that is better educated and has fundamentally different expectations.

Against the background of reduced donor support, the ball is more than ever in the hands of Cambodians. To secure the desired long-term stability the government will need to make considerable systemic changes in order to provide the youth with social and economic opportunities. In a context of investment competition and regional economic integration, this will also necessitate a more professional, accountable and fair legal system with improved regulatory capacity.

Christoph Sperfeldt is a PhD student at the Centre for International Governance and Justice, RegNet School of Regulation and Global Governance, The Australian National University.


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