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ABSTRACT
Cambodian leaders have confounded the efforts of the international community to promote rule of law. Over the past decade the Cambodian government has introduced a series of legal reforms and overseen an increase in the use of legal proceedings including defamation lawsuits against opposition politicians and members of civil society. These reforms and practices, as well as the role of the judiciary in relation to each, may be better understood through elite perceptions of the rule of law in Cambodia. Comprehending the rule of law as it is understood by the ruling elites offers better insight into the trajectory of legal development and the obstacles to Western ideals for legal reform. This article situates Cambodia within the context of illiberal democracy and examines how a thin rule of law has evolved, focusing on defamation law as a legal and political strategy of control. While the international community has pressed Cambodia to carry out liberal legal reforms for some time, the article will outline the obstacles facing reformers and the competing desires of Cambodian leaders embedded in the patronage based political order.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Stephen McCarthy is Senior Lecturer in Southeast Asian politics and an academic member of the Griffith Asia Institute, Griffith University, Australia.
Kheang Un is Associate Professor of Political Science and an associate of the Center for Southeast Asian Studies, Northern Illinois University, USA.
Notes
1. See Fukuyama, “Transitions to the Rule of Law”; Fukuyama “China and East Asian Democracy”; see also Rajah, Authoritarian Rule of Law.
2. See Dressel and Bünte, “Constitutional Politics in Southeast Asia”; Un, “Cambodia: Moving Away from Democracy?”
3. Diamond, Developing Democracy, 11.
4. O'Donnell, “Why the Rules of Law Matters,” 33.
5. Larkins, “Judicial Independence and Democratization,” 606.
6. See Fiss, “The Rights Degree of Independence,” 55; Larkins, “Judicial Independence and Democratization,” 608.
7. Larkins, “Judicial Independence and Democratization,” 609.
8. O'Donnell, “Why the Rule of Law Matters”; See also Zakaria, The Future of Freedom, Chapter 3.
9. Larkins, “Judicial Independence and Democratization,” 610 (original emphasis).
10. See Gunther, Puhle, and Diamandouros, “Introduction,” 9.
11. Buscaglia, “Judicial Corruption and the Broader Justice System,” 68.
12. See Frankel, “Concerning the Role the Judiciary May Serve in the Proper Functioning of a Democracy,” 27.
13. See Beeson, “Crisis Dynamics and Regionalism: East Asia in Comparative Perspective”; Silverstein, “Globalization and the Rule of Law.”
14. Ledgerwood and Un, “Global Concepts and Local Meaning,” 537–539.
15. Carothers, “Rule of Law Temptations,” 59–60.
16. See Fuller, “Positivism and Fidelity to Law.”
17. See Levitsky and Way, Competitive Authoritarianism; Schedler, Electoral Authoritarianism.
18. See Silverstein, “Singapore: The Exception that Proves Rules Matter.”
19. Chandler, The Tragedy of Cambodian History.
20. Donovan, “The Cambodian Legal System,” 81–82, 90; Gottesman, Cambodia after the Khmer Rouge, 243–254.
21. Subsequent interviews with court officials revealed that such interference was extensive. These officials consistently used the phrase “they act like during the communist era” when they were frustrated with interference from powerful individuals and other institutions, particularly the police; See also Gottesman, Cambodia after the Khmer Rouge, 250–254.
22. United Nations Department of Information, The United Nations and Cambodia, 145.
23. See Constitution of the Kingdom of Cambodia, Articles 128 and 130.
24. The government under the Council for Legal and Judicial Reform has since drawn up a blue print for the creation of specialized courts.
25. See La Porta et al., “Judicial Checks and Balances.”
26. Taing, “NGO Law Passes.”
27. See Cambodian Center for Human Rights and Article 19, “Cambodia: Freedom of Expression and the Point of No Return.”
28. The International Center for Not-for-Profit Law, “NGO Law Monitor: Cambodia.”
29. Ibid.
30. Constitution of the Kingdom of Cambodia, Article 41.
31. In 2013, the Sam Rainsy Party merged with the Human Rights Party to form the Cambodia National Rescue Party (CNRP).
32. Human Rights Watch, “Cambodia: Opposition MP Jailed after Shun Trial.”
33. Yun, “Sam Rainsy was Sentenced to 18 Months.”
34. Ear, Aid Dependence in Cambodia: How Foreign Assistance Undermines Democracy in Cambodia, Chapter 4.
35. Sokchea, “Lawmaker Fights for Immunity.”
36. See Committee to Protect Journalists, “Cambodia: Government Abolishes Jail Time for Criminal Defamation.”
37. See Article 19, “Relevant Provisions in the Draft Penal Code that may affect the Free Speech.”
38. See Chongkittavor, “What is the Political Legacy of Cambodia's PM Hun Sen.”
39. See Chan, “Keynote Address, New York State Bar Association Seasonal Meeting”; Ledgerwood and Un, “Global Concepts and Local Meaning.”
40. Constitution of the Kingdom of Cambodia, Preamble and Article 1.
41. Un and Hughes, “The Political Economy of Governance Reform.”
42. In real terms, this amounts to approximately one judge per 43,351 people, and one lawyer per 22,551 potential clients. The predicted total population figure for 2014 is over 15 million. See National Institute of Statistics, General Population Census of Cambodia.
43. Un, “Judicial System and Democratization in Post Conflict Cambodia.”
44. Gottesman, Cambodia after the Khmer Rouge, 252–253; Council on Legal and Judicial Reform, “Seminar on Works of Judges and Prosecutors Throughout the Country.”
45. Angkear, “The President of Chilbo Industrial Co, Ltd”; Ministry of Interior, “Memorandum to the Prime Minister.”
46. World Bank, World Development Indicators, Cambodia; World Bank, World Development Indicators, Singapore.
47. Ministry of Manpower, Report on Wages in Singapore.
48. World Bank, Cambodia: Legal and Judicial Sector Assessment, 25.
49. See UNODC, “Cambodian Judges and Prosecutors in Lively Judicial Integrity Dialogue”; Transparency International-Cambodia, Corruption and Cambodia's Governance System.
50. Kurkchiyan, “Judicial Corruption in the Context of Legal Culture,” 103.
51. Pepys, “Corruption within the Judiciary,” 4–5.
52. Interview with Municipal Court prosecutor, 25 September 2002. Subsequent research has revealed that such remarks though made several years ago remain relevant to present day conditions.
53. Interview with Municipal Court clerk, 20 November 2001.
54. Interview with Municipal Court judge, 2 October 2002. Subsequent research proved that this statement remains true.
55. Un and Ledgerwood, “Is the Trial of Duch a Catalyst for Change in Cambodia's Courts?”
56. Interview with Senior Official at Ministry of Justice, Phnom Penh, August 2014.
57. Interview with Senior Official at the Ministry of Justice, Phnom Penh, July 2014.
58. Human Rights Watch, “Cambodia: Withdraw Fundamentally Flawed Judiciary Laws.” See also, The New York Times, Editorial Board, “Cambodia's Subservient Judiciary.”
59. TVK, 17 February 2015. Authors' translation.
60. Meas and Taing, “ACU Set to Call Ousted Judge.”
61. Aun, “Former Top Judge Hit with Embezzlement Charge.”
62. Carothers, “Rule of Law Temptations,” 60.
63. See Chan, “Keynote Address”; Fukuyama, “Transitions to the Rule of Law,” 42.
64. Haggard, MacIntyre and Tiede, “The Rule of Law and Economic Development,” 218.
65. Ibid., 215.
66. Chan, “Keynote Address,” 16.
67. See Willemyns and Dara, “Parties to Meet for ‘Final Talks' on Basis of 2018 Election.”
