| "body"> | | | | general amnesty, examines proposals for |
| Like other world's states, Cambodia has adopted | | | | reduction and remission of penalties, reviews |
| the ideology of liberal democracy and | | | | requests for extradition by foreign governments |
| Montesquieu's theory of separation of power into | | | | or by Cambodian prosecutors, examines draft |
| its internal justice administration. One of the most | | | | laws from other ministries that relate to the |
| common elements of liberal democracy is the | | | | imposition of penalties and keeps track of the |
| separation between the judiciary, executive and | | | | development and evolution of criminal |
| legislative powers. Separation between the three | | | | jurisprudence. It also controls the penitentiaries, |
| supreme powers of the State is the indispensable | | | | maintains criminal records and issues abstract |
| approach to a fair trial. | | | | thereof. |
| Article 1 of the Provision Dated September 10, | | | | The Department supervises the activities of the |
| 1992, Relating to the Judiciary and Criminal Law | | | | prosecution departments and monitors the |
| and Procedure Applicable in Cambodia during the | | | | operations of the judiciary police in cooperation |
| Transitional Period, stipulates: | | | | with the Ministries of Interior and Defense. As |
| 1. The independence of the judiciary must be | | | | does the Civil Department, the Department of |
| ensured in accordance with the Basic Principles on | | | | Criminal Affairs and Prosecution receives petitions |
| the Independence of the Judiciary, adopted by | | | | to the Ministry from people who are not satisfied |
| the United Nations. Judges must decide in | | | | with the way the courts handle cases. It also |
| complete impartiality, on the basis of facts which | | | | receives and monitors monthly activity reports of |
| are presented to them, and in accordance with | | | | the criminal courts. |
| law, refusing any pressure, threat or intimidation, | | | | General Inspection of Justice Affairs: Though it |
| direct or indirect, from any of the parties to a | | | | has not been established, this entity would have a |
| proceeding or any other person; | | | | permanent duty to inspect the administrative |
| 2. The judiciary must be independent of the | | | | affairs of all tribunals except the Supreme Court, |
| executive and legislative authorities and of any | | | | to monitor courts' working regimes (except the |
| political party. Persons selected for judicial | | | | trial process), and to monitor the ethical conduct |
| functions must be honest and competent; | | | | of judges to the Minister of Justice on the |
| 3. The principle of the independence of the | | | | activities of the tribunals and provide its own |
| judiciary entitles and requires judges to ensure | | | | comments. |
| that judicial proceedings are conducted fairly and | | | | Koy Neam also adds that: "the Minstry of Justice |
| that the rights of the parties are respected. They | | | | assists the courts by providing technical advice |
| must have decent and sufficient material | | | | guidelines and circulars regarding the |
| conditions for the exercise of their functions. | | | | implementation of procedure." When the courts |
| Judges must receive suitable training and be | | | | find it difficult to decide which law should be |
| remunerated adequately to ensure their | | | | applied to a given situation, the courts ask for |
| impartiality and independence. | | | | opinions (not binding) from experts of the Ministry. |
| There would be no doubt that the Constitution of | | | | The Ministry is a resource of knowledge in this |
| the Kingdom of Cambodia and the Provision dated | | | | regards. Besides providing legal opinions to the |
| September 10, 1992, Relating to the Judiciary and | | | | courts, the Ministry of Justice, through its |
| Criminal Law and Procedure Applicable in Cambodia | | | | Department of Administration and Finance, gives |
| during the Transitional Period and other legal | | | | administrative support to the judiciary. The |
| instruments in force are evident that Cambodia | | | | Ministry also handles the financial affairs for the |
| does accept the separation between judiciary, | | | | recently established Supreme Council of |
| legislative and executive bodies the supreme | | | | Magistracy and the entire court system. |
| approach to a fair trail. | | | | The last evidence that can witness the power |
| In Resource Guide to the Criminal Law of | | | | interference between the judiciary and executive |
| Cambodia, separation between the three powers | | | | power is the Law on the Organization and the |
| would bring these benefits: "having divided the | | | | Functioning of the Supreme Council of Magistracy, |
| powers of the government in this manner, the | | | | providing that the Council membership be |
| doctrine of the separation of powers then require | | | | appointed by Royal Decree and composed of: |
| that each of these branches be confined to the | | | | 1. The King, President; |
| exercise of its own function and not be allowed | | | | 2. The Minister of Justice, Member; |
| to perform the functions of other branches. | | | | 3. The President of the Supreme Court, Member; |
| Procedures and rules must be established to guide | | | | 4. The Prosecutor-General of the Supreme Court, |
| those three branches of the government and to | | | | Member; |
| protect and powers of each branch from being | | | | 5. The President of the Appellate Court, Member; |
| exercised by the other branches." | | | | 6. The Prosecutor of the Appellate Court, |
| However Cambodia's current state of affairs does | | | | Member; |
| reveal that Cambodia is facing countless | | | | 7. Three judges, elected by judges, Members; and |
| barricades to fair trial. It has been seen that the | | | | 8. Three judges, also elected by judges, Alternate |
| inter-relation between the judiciary institution and | | | | Members. They replace an absent full member |
| the Ministry of Justice (Executive institution) is | | | | (elected judge). |
| probably the most ample barricade for Cambodian | | | | V. Author's Recommendations on the Tri-Power |
| paths to fair trail. | | | | Separation |
| Subdecree on the Organization and Functioning of | | | | Fair trial would be seen as more clear-cut, only |
| the Ministry of Justice, entered into force on | | | | when the three supreme State institutions are |
| January 20, 2000, states: | | | | absolutely separated in law and practicality. With |
| The Ministry of Justice has the following functions | | | | regard to the functions and duties of the Ministry |
| and duties: | | | | of Justice, the separation between the judiciary |
| To protect the independence of judges during the | | | | power and the Ministry of Justice, which is the |
| course of their duties; | | | | executive power, is not absolute. First function |
| To realize justice for all persons before the laws; | | | | and duty; to protect the independence of judges |
| To organize and monitor administrative processes | | | | during the course of their duties, secondly; to |
| of tribunals; | | | | realize justice for all persons before the laws, |
| To manage civil servants who are serving at the | | | | thirdly; to organize and monitor administrative |
| Ministry of Justice; | | | | processes of tribunals, fourthly; to ensure the |
| To ensure the functioning of the courts and all | | | | functioning of the courts and all prosecutors and |
| prosecutors and prepare various laws governing | | | | prepare various laws governing these institutions, |
| these institutions; | | | | fifthly; to ensure proper application of orders and |
| To educate and disseminate laws concerning | | | | judgments of levels of courts and prosecutors, |
| judicial affairs; | | | | sixthly; to follow up the execution of judgments, |
| To ensure proper application of orders and | | | | in particular, inspection of detention centers and |
| judgments of levels of courts and prosecutors; | | | | prisons for the purpose of law enforcement, |
| To follow up the execution of judgments, in | | | | seventhly; to form, manage and issued extracts |
| particular, inspection of detention centers and | | | | of judgments, eighthly; to accept, prepare and |
| prisons for the purpose of law enforcement; | | | | manage amnesties or pardons as determined by |
| To form, manage and issue extracts of | | | | law, shall be the sole duties and functioning of the |
| judgments; | | | | Judiciary only. |
| To accept, prepare and manage amnesties or | | | | Moreover, the judiciary shall enjoy "autonomous |
| pardons as determined by law; | | | | budgets" to support its administration and all kinds |
| To conduct international relationships associated | | | | of matter within its entity. Should its financial |
| with justice and relevant laws; and | | | | expenditure is administered by the Ministry of |
| To perform other duties as assigned by the Royal | | | | Justice, the power separation between the |
| Government. | | | | judiciary and executive institutions seem |
| The Ministry of Justice consists of the following | | | | profoundly dim. |
| structures: | | | | The Basic Principles on the Independence of the |
| Cabinet of Minister; | | | | Judiciary, Adopted by the Seventh United Nations |
| Judicial General Inspectorate; | | | | Congress on the Prevention of Crime and the |
| Department of Administration and General Affairs; | | | | Treatment of Offenders held at Milan from 26 |
| Department of Personnel and Training; | | | | August to 6 September 1985 and endorsed by |
| Department of Civil Affairs; | | | | General Assembly resolutions 40/32 of 29 |
| Department of Criminal Affairs and Amnesty; | | | | November 1985 and 40/146 of 13 December |
| Department of Prosecution Affairs; and | | | | 1985: |
| Department of International Affairs. | | | | Independence of the judiciary |
| In his Introduction to the Cambodian Judicial | | | | 1. The independence of the judiciary shall be |
| Process, Koy Neam conducted thorough studies | | | | guaranteed by the State and enshrined in the |
| on four departments; Department of | | | | Constitution or the law of the country. It is the |
| Administration and Finance, Department of | | | | duty of all governmental and other institutions to |
| Personnel and Training, Department of Civil | | | | respect and observe the independence of the |
| Affairs, Department of Criminal Affairs, and the | | | | judiciary. |
| General Inspection of Justice Affairs, which will be | | | | 2. The judiciary shall decide matters before them |
| one by one revealed below: | | | | impartially, on the basis of facts and in accordance |
| Department of Administration and Finance: | | | | with the law, without any restrictions, improper |
| Assures the proper administrative functioning of | | | | influences, inducements, pressures, threats or |
| the Ministry. It does this be keeping track of | | | | interferences, direct or indirect, from any quarter |
| incoming and outgoing letters, filing, preparing | | | | or for any reason. |
| reports on activities of the Ministry and courts, | | | | 3. The judiciary shall have jurisdiction over all |
| overseeing a legal research center and library and | | | | issues of a judicial nature and shall have exclusive |
| by preparing and monitoring the management of | | | | authority to decide whether an issue submitted |
| the annual budget for the Ministry and courts of | | | | for its decision is within its competence as defined |
| all levels; | | | | by law. |
| Department of Personnel and Training: Deals with | | | | 4. There shall not be any inappropriate or |
| recruitment and training of Ministry staff and | | | | unwarranted interference with the judicial process, |
| court personnel, including the supply of judges, | | | | nor shall judicial decisions by the courts be subject |
| clerks and prosecutors to all courts, and | | | | to revision. This principle is without prejudice to |
| maintaining records of professional performance | | | | judicial review or to mitigation or commutation by |
| of judges, prosecutors, and clerks; | | | | competent authorities of sentences imposed by |
| Department of Civil Affairs: Participates in the | | | | the judiciary, in accordance with the law. |
| drafting of laws and regulations and refining draft | | | | 5. Everyone shall have the right to be tried by |
| laws on civil, commercial, labor, and administrative | | | | ordinary courts or tribunals using established legal |
| matters. It also prepares the guideline to be | | | | procedures. Tribunals that do not use the duly |
| followed by the courts in the application and | | | | established procedures of the legal process shall |
| interpretation of the meaning of laws and | | | | not be created to displace the jurisdiction |
| regulations. The Department of Civil Affairs has | | | | belonging to the ordinary courts or judicial tribunals. |
| among other things a duty to examine and handle | | | | 6. The principle of the independence of the |
| petitions to the Ministry regarding civil cases, in | | | | judiciary entitles and requires the judiciary to |
| which concerned parties have complaints about | | | | ensure that judicial proceedings are conducted |
| such problems as denial of justice, the execution | | | | fairly and that the rights of the parties are |
| of civil judgments, etc. The Department also | | | | respected. |
| receives and monitors monthly activity reports of | | | | 7. It is the duty of each Member State to provide |
| the civil courts. It keeps track of the | | | | adequate resources to enable the judiciary to |
| establishment and evolution of civil jurisprudence, | | | | properly perform its functions. |
| assures the implementation of international | | | | Shall be strictly applied and trained to all the law |
| subpoenas and participates in the preparation of | | | | enforcement officials. And last but not least, Code |
| international treaties with respect to judicial affairs. | | | | of Conduct for Law Enforcement Officials, |
| Department of Criminal Affairs and Prosecution: | | | | adopted by General Assembly resolution 34/169 |
| Participates in the drafting and review of laws and | | | | of 17 December 1979, shall be stringently inserted |
| regulations relating to criminal affairs and crime | | | | into all the law enforcement officials. |
| suppression policy. It prepares laws regarding | | | | |