“There are ways to ensure judicial independence. But we must equally be concerned with ways to ensure judicial accountability.”
For the topic to be well discussed, allow me to make clear the definition of the two notions here: “Independence” and “Accountability”. In a given context, one can be independent and be held accountable for his decisions and actions. In other words, any individual or institution can be made independent to act freely under no control of any other individual’s or institution’s power, influence or order. Yet the individual or institution has to be and can be held accountable for what they say and do.
This paper is dedicated to specifically talk about the status quo of judicial independence and the available mechanisms to promote judicial accountability in Cambodia, a member state of ASEAN.
While the ASEAN Intergovernmental Commission on Human Rights (AICHR) cannot perform the functions of an independent commission in the region, there is no entity which can play a role as an independent regional court to endorse universal values for all the member states, and the absence of this necessary court at the regional level makes the achievement of the Beijing Statement on the Independence of the Judiciary a crucial one (Kirby, 2010).
Kristy Richardson’s theory in Cambodian context
In respect to judicial appointments and security of tenure by Cambodian law, all appointments, transfers, promotions, suspensions or disciplinary actions of judicial officers are to be decided by the Supreme Council of Magistracy (SCM) and implemented by royal decree. However, the replacement of the President of the Court of Appeal and the appointments of four new members of the SCM were carried out at the request of the executive branch. Seeing this irregular replacement and appointment, the UN human rights experts expressed their concerns over the protections of human rights since the judicial independence per se was still at stake (UN News Centre, 2007).
The monthly salary for Cambodian judges from the government is very low, ranging from 190,000 riels (US$47.50) to 250 000 riels (US$62.50). On this note, the financial pressure from the other branches is relatively as low. As a consequence, to supplement their monthly salary, those officers take gifts from their litigants. Justice could potentially be jeopardized if the “gift” culture greatly spread throughout the system since it would undermine the judicial integrity and independence (Kirby, 2010). In respect to administrative pressure, attempts of a tribunal member to seek advice for the solutions of cases from Department of Justice have been rooted from the French colony era. The attempt of needs for advice has becomes obviously stronger after the Khmer Rouge regime since the legal materials were totally destroyed. On this note, the likeliness that the outcomes of cases dictated by the executive branch remains questionable – and hypothetically, positively correlated (ibid.,page 20).
As mentioned above, the practice of seeking advice from the executive branch has been remaining within the judicial system, especially when cases are (suspected to be) politically-motivated and when cases involve high ranking officials or wealthy/powerful individual. When deciding cases, the judicial officials put their interests first. Their common interests include personal security, political affiliation and financial gains (gift and corruption). In other words, those judicial officers do have their professionalism yet they can’t and choose not to apply it when handling with such cases because their professionalism has been forcefully compromised. Kirby1 believes that a great deal relies mainly on the individual officer’s integrity, imagination, energy and devotion to their functions within their institution that has structural weakness and poor resources.
Of course, by Cambodian Constitution, judiciary is an independent branch from the other two branches: executive and legislative. Yet in practice, the judicial independence never comes to public light. As a consequence, there has been relatively no public trust in this corrupt system. In other words, the public see that social justice cannot be found at courts, so they have to think more than twice to pursue their case to the court. Because of having no trust in the court’s procedure, some people blindly decide cases on their own. For instance, a failed robber can be beaten to death if he can’t escape from the pursuit of the people after a robbery attempt. There have been so many cases and no individual from the people’s crowd has been held accountable for their actions over the criminals.
In regards to media reporting the court’s workings, there have been close-door sessions on sensitive cases which are commonly politically-affiliated and involve powerful individuals. In other words, media is not allowed in a courtroom in which cases are believed to be immensely sensitive to publicity. As a matter of fact, the judicial officers can simply send the media people away so that they can decide cases in favour of their bosses who are obviously a member of the ruling party and/or the executive branch.
In short, the judicial independence in Cambodia is very doubtfully low2. However, there is an existing and available mechanism at the three levels to promote the judicial accountability. As shown in figure 2, by law judiciary can be held accountable by the other two branches, media and civil social organizations (CSOs) through the check and balance mechanism. At a regional level, AICHR could potentially be made as effective as those regional courts and commissions in Europe, the Americas and Africa. This regional court is meant to play a role in protecting fundamental human rights before the independent courts in the region (Kirby, 2010). AICHR and National Human Rights Committee (NHRC) in Cambodia share the common goal which is to promote human rights, but first they have to make sure if the judicial independence and accountability is being fully respected. The UN human rights expert to Cambodia, Yash Ghai said “An independent judiciary is a fundamental guarantor for the protection of human rights in any country.”(UN News Centre, 2007). At the international level, UN who is dedicated to promote rule of law and human rights in Cambodia plays an important role in having to enhance judicial independence and accountability since the degree of independence and accountability in judiciary is the key to measure rule of law and human rights.
1 Michael Kirby is a retired judicial officer and has served in judiciary over many years both at national and international levels.
2According to the Global Integrity Index 2009, among the 75 chosen nations, Cambodia hits 17 out of 100 values, ranking 74th in respect to judicial accountability.
UN News Centre. (2007, August 23). Retrieved February 22, 2011, from http://www.un.org/apps/news/story.asp?NewsID=23584&Cr=cambodia&Cr1=
Global Integrity Index. (2009). Retrieved February 04, 2011, from http://www.nationsencyclopedia.com/WorldStats/GII-judicial-accountability.html
Kirby, M. (2010, January ). Retrieved February 22, 2011, from http://www.michaelkirby.com.au/images/stories/speeches/2000s/2010_Speeches/2425.Speech-ChiangMai,January2010.pdf
Richardson, K. (2007). Scribd. Retrieved February 04, 2011, from http://www.scribd.com/doc/7262131/Definition-of-Judicial-Independence