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ABSTRACT
Distinctions between the common and civil law are crucial when considering the rule of law and judicial independence in a political system. The 1993 Constitution of the Kingdom of Cambodia provides for a democratic government with separation of powers, judicial independence and human rights guarantees consistent with international legal instruments. However, Cambodia ranks poorly in international indices of political interference and corruption in the judiciary and for the rule of law. Drawing on interviews with Cambodian state officials and legal practitioners, the article situates the domestic judiciary within the socio-political environment and constitutional arrangements in which it must operate and examines the limits to judicial independence in the country. The article argues that the lack of judicial independence in contemporary Cambodia is not only attributable to its neopatrimonial political culture but also to the legal-institutional framework established during the United Nations Transitional Authority in Cambodia (UNTAC) period. The legal-philosophical underpinnings of civil law, the nature of the civil law system operating in Cambodia, and how it is interpreted locally, are crucial to understanding the limits to judicial independence in the country.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 Peou, “Peace through Retribution or Reconciliation?” 341.
2 Gainsborough, “Elites vs. Reform,” 37–8; McCarthy and Un, “The Evolution of Rule of Law in Cambodia.”
3 World Justice Protect, WJP Rule of Law Index 2016.
4 Transparency International, Corruption Perceptions Index 2016.
5 Nicholson and Low, “Local Accounts of Rule of Law Aid,” 4.
6 Heder, “Cambodia in 2010,” 208.
7 Article 523, Discrediting the Court Decision, of the revised 2010 Penal Code outlines that a person who criticises a “judicial act or decision” aiming to “endanger Cambodian institutions” can be sentenced up to six months in prison and a one million riel fine.
8 Bratton and Van de Walle, Democratic Experiments in Africa, 62.
9 Erdmann and Engel, “Neopatrimonialism Reconsidered,” 114.
10 McCarthy and Un, “The Rule of Law in Illiberal Contexts.”
11 See, for example, Un, “The Judicial System and Democratization in Post-Conflict Cambodia”; Piergigli, “Transition to Democracy and the Protection of Fundamental Rights.”
12 Roberts, Political Transition in Cambodia 1991–99, 35.
13 Bull, No Entry without Strategy, 75.
14 Roberts, Political Transition in Cambodia 1991–99, 37.
15 Nedzel, “The Rule of Law,” 60.
16 Møller and Skaaning, The Rule of Law, 154.
17 Joireman, “Colonization and the Rule of Law,” 316.
18 Ibid.
19 Helmke and Rosenbluth, “Regimes and the Rule of Law,” 347.
20 Yu, “The Role of the Judge in the Common Law and Civil Law Systems,” 35–6.
21 Merryman, Clark and Haley, The Civil Law Tradition, second edition, 938.
22 Raz, The Authority of Law, 213–9; Peerenboom, Varieties of Rule of Law, 2–3.
23 Cheesman, “Thin Rule of Law or Un-Rule of Law in Myanmar,” 599.
24 Merryman and Pérez-Perdomo, The Civil Law Tradition, second edition, 4.
25 Nedzel, “The Rule of Law,” 80.
26 Merryman, Clark and Haley, The Civil Law Tradition, second edition, 6–7.
27 Joireman, “Colonization and the Rule of Law”; Eisenberg, The Nature of the Common Law.
28 Glaesner and Shleifer, “Legal Origins,” 1194.
29 Nedzel, “The Rule of Law,” 108.
30 Ibid., 61.
31 Ibid.
32 Ibid., 65
33 Oakeshott, On Human Conduct, 119.
34 Sen, “The Rule of Law in Cambodia,” 10.
35 Ibid.
36 Deinla, “Public Support and Judicial Empowerment of the Philippine Supreme Court,” 130.
37 Burbank, “What do we Mean by ‘Judicial Independence’?”
38 Larkins, “Judicial Independence and Democratization,” 608.
39 Ibid.
40 Interview with a spokesperson for the Council of Ministers, Phnom Penh, September 2015.
41 Quoted in Sony, “PM Asked Drunk Driver Be Released On Bail.”
42 Quoted in Dara and Kong, “PM Intercedes in Kampong Speu Jailings.”
43 Quoted in Dara and Turton, “PM Overrules Supreme Court’s Decision in Banteay Manchey Land Dispute.”
44 Interview with a spokesperson for the Ministry of Justice, Phnom Penh, September 2015.
45 Ibid.
46 Interview with a spokesperson for the Council of Ministers, Phnom Penh, September 2015.
47 Ibid.
48 Bertelman, “International Standards and National Ownership?” 343; Un and Ledgerwood, “Is the Trial of ‘Duch’ a Catalyst for Change in Cambodia’s Courts?”; Un, “Cambodia in 2011”; Un, “The Khmer Rouge Tribunal.”
49 Interview with international staff member at the ECCC, Phnom Penh, September 2015.
50 Ibid.
51 Peou, “Peace through Retribution or Reconciliation?” 342.
52 Interview with Cambodian lawyer, Phnom Penh, September 2015.
53 Ibid.
54 Bedner, “An Elementary Approach to the Rule of Law,” 68.
55 Deinla, “Public Support and Judicial Empowerment of the Philippine Supreme Court,” 130.
56 Glendon, Wallace and Osakwe, Comparative Legal Traditions, 67–8.
57 Mahoney, “The Common Law and Economic Growth,” 507.
58 Youngs, English, French and German Comparative Law, 85.
59 Fernandes de Andrade, “Comparative Constitutional Law,” 979; Cappelletti, “Judicial Review in Comparative Perspective,” 1037–8.
60 Fernandes de Andrade, “Comparative Constitutional Law,” 980–2; Cappelletti, “Judicial Review in Comparative Perspective,” 1040–1.
61 Youngs, English, French and German Comparative Law, 47.
62 Shapiro, “Judicial Independence,” 270.
63 Phillips, “The War on Civil Law?” 916.
64 Constitution of the Kingdom of Cambodia, 1993, Article 51.
65 Peng, “The Modern Era of Cambodian Constitutionalism,” 39, 52.
66 Hauerstein, Introduction to Legislative Drafting: References & Techniques, 14.
67 Ibid.
68 Ibid., Article 134.
69 Human Rights Watch, “Cambodia.”
70 Balasubramaniam, “Judicial Politics in Authoritarian Regimes,” 407.
71 Un, “The Judicial System and Democratization in Post-Conflict Cambodia,” 93–4.
72 Human Rights Watch, “Cambodia.”
73 Ibid.
74 Interview with Cambodian lawyer, Phnom Penh, September 2015.
75 Interview with international staff member at the ECCC, Phnom Penh, September 2015.
76 Menzel, “Cambodia,” 278–9.
77 Peou, International Democracy Assistance for Peacebuilding, 98–9.
78 Interview with Cambodian national working at a local research institute, Phnom Penh, September 2015.
79 Ibid.
80 Interview with Cambodian lawyer, Phnom Penh, September 2015.
Additional information
Notes on contributors
Lucy West
Dr Lucy West is a Senior Research Assistant with the Griffith Asia Institute, Griffith University, Brisbane, Australia. Her research interests focus on legal reform and the rule of law in Southeast Asia.