LEGAL SYSTEMS
OF THE WORLD
/I Political, Social, aiu) Cultural Encyclopedia
J -~
"
H E R B E RT M. K R I T Z E R,
EDITOR
Copyright © 2002 by Herbert M. Kritzer
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"Cape Verde" originally published in the Journal of 'African Law 44, no. 1 (2000): 86-95.
Material in "Comoros" and "Djibouti" used with the kind permission of K/uwer Law International.
Material in "European Court of Justice" from Kenney, Sally J. "The European Court of
Justice: Integrating Europe through Law." 81 Judicature 250-255 (1998). Reprinted
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240 CAMBODIA
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lence and intimidation by the Cambodian People's Party ing from 225 C.E., show that Cambodia (called Funan)
(CPP), representing the former Communist regime, and had a system of laws modeled on the Indian system. The
by the Khmer Rouge guerrillas, approximately 90 percent Cambodian system, which survived until the thirteenth
of Cambodians voted. The royalist FUNCINPEC party, century, as reported by another Chinese diplomat, in-
headed by Prince Norodom Ranarridh, won the election. cluded trials by ordeal such as throwing the accused to
The CPP refused to accept FUNCINPEC's victory wild animals. Trials by ordeal exist unofficially in the
and threatened to plunge the country back into civil war country to this day, although they are very rare.
if power was not shared with them. Ultimately, a power-
sharing agreement was reached between Ranariddh, who Angkor
became first minister, and Hun Sen, vice president of the The stability of the Khmer Empire (Angkor), beginning
CPP, who became second prime minister. in 802, allowed for reform and elaboration of the legal
In 1997, Sen staged a coup in which hundreds of system. The ancient Khmer society was hierarchical; per-
FUNCINPEC members and members of opposition par- sonal status flowed from function or position held in the
ties were killed or injured. Ranarridh was ousted as first administration, titles, names, and wealth. The system of
prime minister. Hun Sen of the CPP currently heads the ownership of land was well developed.
government of Cambodia. The court of law was called vmh sabha or dhamad-
hikarona. There were central or municipal courts of law
LEGAL SYSTEM called vrah sabha nagara and provincial or territorial
courts called vrah sabha sruk. The sovereign was the ulti-
Pre-Angkorian Era mate authority of law and had the power to grant
Details about the legal system of the pre-Angkorian era amnesty or pardon.
are sparse. The memoirs of two Chinese diplomats, dat- The officials associated with the administration of jus-
CAMBODIA 241
tice were given the title sabhapati (later sopheathipdey), In 1915, the French took complete control over the
president of the court of the presiding judges; guna- Cambodian judiciary. In the early 1920s, indigenous laws
dosadarsi, inspector of qualities and defects; svat vrah were replaced by French laws and the French legal system.
dharmasastra, reciter of the sacred legal text; vyavaharad- A civil code, a law on judicial organization, a judicial per-
hikarin or ranvan, usher; care, emissary; vrah sarvad- sonnel statute, and a law on the control of the judiciary
hikarin, judicial land surveyor; mahasresthi or were promulgated. A court of petty crimes Sala Lahu,
sresthimukhya, chief of merchants; ta cam likhita kamvu- court of first instance (Sala Dambaung or Sala Lukhun in
vansa nu anga vrah rajakaryya, records keeper; Pratyaya or Phnom Penh), the Court of Appeal (Sala Outor), and the
rajapratyaya, royal confidante or representative; and Supreme Court (Sala Vinichay) were established. Book I,
pratyaya mrtakadhana or amrtakadha.no,, administrator of previously promulgated, was recodified and came into
property received by inheritance. force on July 1, 1920. It was now divided into four books
Indian legal textbooks such the Manu, the Dhar- regulating person, property, obligations (contracts and
masastras, and other sastras or law were studied and prac- torts), and procedure. By royal ordinance of April 5,
ticed in the royal courts. Legal terminology, both that 1948, an administrative chamber was established with the
used for speaking in court and that used in writing, was jurisdiction to hear administrative matters. Appeals are
mainly in Sanskrit, but Khmer was used in descriptions submitted to the Council of Ministers. In 1953, an ad-
of material facts. ministrative appeal tribunal was established to hear ap-
The litigation process commenced with a complaint peals. This entire legal system was abolished in April 1975
by the plaintiff, a response by the defendant, and exami- when the Khmer Rouge took power.
nation by the court. The steps in the proceeding were After the Vietnamese invasion in 1979, which ousted
also modeled on the vyavahara matyka. The procedure of the Khmer Rouge regime, and the installment of a pup-
examination of witnesses (saksin) and evidence was also pet regime officially known as the People's Republic of
modeled after the Indian practice of the time. Kampuchea, a legal system was reestablished, but mod-
In the late sixteenth century, in the aftermath of inva- eled on that of the Soviet Union. Despite constitutional
sion by the Siamese, which resulted in looting and de- reform in 1993, the Soviet system and practice still de-
struction of legal texts and records, King Chey Chettha fine, in part, the Cambodian legal system today.
focused on law reform. He created a royal law commis-
sion and appointed six people to revise and collate legal LEGAL CONCEPTS
texts that remained in the country. As a result, twelve The Cambodian legal system has suffered as a result of
volumes of law were promulgated. Two of the most im- the various political influences since Cambodian inde-
portant laws were the Kram Sopheathipdey or Law of the pendence in 1953—authoritarianism, military dictator-
Presiding Judges and Kram Chor or Crimes Act. The ship, the total annihilation of the French-based legal sys-
death penalty was abolished, and the severity of sentences tem by the Khmer Rouge, and the introduction of
was reduced. Soviet-style communism under the Vietnamese-backed
regime established in 1979. The current regime, which
French Influence on the Cambodian Legal System took power in 1993, bears many hallmarks of Soviet-style
In 1863, Cambodia became a French protectorate. By the practice.
French-Cambodian treaty of 1884, a French administra- Only ten lawyers remained in Cambodia after the
tion of justice was established, under the supervision of a Khmer Rouge were ousted. Thousands of lawyers were
French resident. By royal ordinance of February 7, 1902, killed, died of starvation or disease, or fled the country.
the provincial court of first instance, the Sala Khet, and a The legal infrastructure was also destroyed and has had to
court of appeal, the Sala Outor, were established on the be rebuilt from scratch.
basis of Cambodian law. A royal ordinance of June 26, As a result of 1993 elections sponsored by the United
1903, established the Supreme Court, the Sala Vinichay. Nations, Cambodia adopted a new constitution. The
At this stage, indigenous laws were still applicable. By 1993 constitution stipulates liberal democracy and a
royal ordinance of September 7, 1910, formal law courses multiparty system. It provides for a separation of powers
were established in Khmer for judicial officials. between the three branches of government—the legisla-
Royal commissions were created by a royal ordinances ture, executive, and judiciary. The legislature is composed
of May 5 and August 11, 1905, and by ordinances of of the National Assembly and the Senate. The constitu-
September 3, and October 21, 1908. The royal ordi- tion states that a free-market economy is the foundation
nance of November 20, 1911, the Code of Criminal In- of state's economic system. It restores the monarchy, but
structions and Judicial Organization, Penal Code, Book with the stipulation that the monarch reigns but does not
I, of the French Civil Code were promulgated and came rule. It recognizes and respects human rights as defined in
into force on July 1, 1912. the U.N. Charter, the Universal Declaration of Human
242 CAMBODIA
Rights, and all other treaties concerning human rights, tor general attached to Court of Appeal; and three judges
women's rights, and children's rights. It also provides for selected from among all sitting judges. All members ex-
due process of law and prohibits enacting laws with cept the king are political appointees of the ruling CPP.
retroactive force. It provides for checks and balances on The Law on Political Parties allows members of the coun-
the branches of government. It allows citizens of both cil to maintain their party ties and engage in such politi-
sexes over twenty-five years of age to run for office. cal activities as campaigning during elections. Without a
Despite the liberal terms of the constitution, in reality clearly defined term of office and a requirement of legal
Cambodia is dominated by a powerful executive and a qualifications, the members are vulnerable to political
judiciary composed of generally unqualified political manipulation, and the ability of the Supreme Council to
appointees. ensure judicial independence comes under question.
The new law assigned to the council powers beyond
JUDICIARY those permitted by the constitution. The council has, for
Article 109 of the constitution enshrines, for the first example, not only the power to discipline judges and
time in Cambodian history, the principle of the indepen- prosecutors but also to remove and dismiss them.
dence of the judiciary. The judiciary comprises four sep-
arate legal entities: the Constitutional Council, the Constitutional Council
Supreme Council of Magistracy, the courts, and prosecu- The 1993 constitution provides for the creation of a
tors. The court system is divided into courts of first in- Constitutional Council to interpret laws passed by the
stance, the Court of Appeal, and the Supreme Court. National Assembly and to rule on their constitutionality.
The judiciary has the constitutional power to review Although the constitution fails to assert that this council
the executive branch. Citizens are entitled to lodge com- is to be independent from any other governmental body,
plaints with the court for judicial redress of violations of the Law on the Organization and Functioning of the
the law by the executive, by organs of the executive, or by Constitutional Council does so.
members of a particular organ. It is also empowered to de- In providing for a constitutional council, the Cambo-
termine administrative law matters, which traditionally dian constitution of 1993 mirrors the French constitu-
were the competence of the executive, the administrative tion of 1958, which included the constitutional review
chamber, which is a separate administrative law structure body in order to curb excesses of legislative or executive
with the Council of State as the supreme court. The 1953 power. This is an example of appropriating French law
constitution provided for the establishment of a council of and institutions where they may not be appropriate to the
state, perhaps to act as the highest administrative law re- Cambodian context, where the executive has always
view body; but an organic law was never passed and so this dominated the other branches.
body was never created. Accordingly, not a single admin- The Constitutional Council consists of nine members,
istrative law case has been heard in Cambodia since 1970. each appointed for a nineyear term. The terms are stag-
gered, so that one-third of the council members are re-
Supreme Council of the Magistracy placed every three years. Three of the members are ap-
To guarantee the independence of the judiciary, the 1993 pointed by the king, three by the National Assembly, and
constitution provides for the establishment of an inde- three by the Supreme Council of the Magistracy. The
pendent body, the Supreme Council of the Magistracy, president of the Constitutional Council is appointed by
with the power to appoint, transfer, suspend, and remove the members of the council. The president, who must be
judges and prosecutors. In December 1994, the National a CPP member, has the prevailing vote in case of ties.
Assembly adopted the Law on the Organization and the There is no guarantee of tenure—the king, the Na-
Functioning of the Supreme Council of the Magistracy. tional Assembly, or the Supreme Council of the Magis-
During debate of the draft law, the minister of justice, tracy can remove a member at will before the member's
who had previously acknowledged that the constitution nine-year term is completed—although such a guarantee
prohibited him from sitting on the council, insisted on would facilitate members' impartiality and independence.
being included as a member of it. Over opposition, and Neither is there a requirement that members have legal
with the Constitutional Council not yet formed to review qualifications or undergo legal training following appoint-
the constitutionality of his membership, the law was ment. Rather, any Cambodian with a degree in law, ad-
passed and the justice minister became a member. ministration, diplomacy, or economics and at least fifteen
The Supreme Council of the Magistracy is composed years of work experience to be appointed to the council.
of nine members: the king, who presides over the council; The jurisdiction of the Constitutional Council is
the minister of justice; the president of the Supreme broader than that of its French counterpart. It automati-
Court; the prosecutor general attached to the Supreme cally reviews the constitutionality of "organic laws, Na-
Court; the President of the Court of Appeal; the prosecu- tional Assembly's Internal Regulations, amendments to
CAMBODIA 243
the organic law and National Assembly's Internal Regula- Legal Structure of Cambodia Courts
tion" after passage by the National Assembly but prior to
promulgation, and any enacted law or promulgated law
submitted for review by the king, the president of the Constitutional Council
National Assembly or one-tenth of its members, or the
prime minister. Ordinary Cambodians may also seek re-
view of any law by petitioning the president of National
Assembly or an assembly member. In addition, the law
grants litigating parties the right to submit for review by
the council any provision of a law at issue in the litigation
or any administrative decision that affects the party's
rights or liberties. Applications for such review are to be
lodged at the Supreme Court. Arguably, this provision is
in violation of article 109 of the constitution, which vests
the competence of the review of administrative decisions
in the courts.
Unlike its French counterpart, however, the council
does not have the power to review executive decrees, de-
cree-laws, subdecrees (regulations), and international
treaties. The council therefore serves as a check against The Military Court was established in 1981 under
abuses by the legislative branch while allowing the exec- Decree-Law No. 05 (12/08/81), which gives the court ju-
utive to enact decrees with impunity. risdiction to try members of the military, civilians who
It appears that it was the intention of the National As- work in the Ministry of National Defense, and civilians
sembly that the council be an independent body. The who have committed military offenses with members of
Constitutional Council Act requires members to be im- the military.
partial and to recuse themselves from consideration of
any case that presents a conflict of interest. Deliberations Specialized Judicial Bodies
and votes must be secret. Members are prohibited from Cambodia is in a process of setting up a special tribunal,
making public statements. Like the Supreme Council of officially known as the Extraordinary Chamber in the
the Magistracy, however, the Constitutional Council is Courts of Cambodia. The draft law, called the Law on
dominated by the CPP. Six of the council's nine members the Establishment of the Extraordinary Chambers in the
belong to the ruling party, and only a simple 5—4 major- Courts of Cambodia for the Prosecution of Crimes Com-
ity vote is required for a decision. There are no council mitted under the Period of Democratic Kampuchea
members from the other political parties. The CPP mem- ("The Khmer Rouge Law"), was passed by the National
bers of the council are encouraged to maintain their party Assemby in January 2001 and has been promulgated. As
affiliation, although council rules require that a leave of of November 2001, the next steps for setting up the tri-
absence be granted if a member wants to work on an elec- bunal had not been taken by the Cambodian govern-
tion campaign or seek elective office. ment. Some international observers are concerned about
An example of the politicization of the council is that an apparent reluctance on the part of the Cambodian
it declined to hear eighty-five complaints regarding re- government to set up the tribunal after years of discus-
cent elections lodged by an opposition party, the Sam sion with the United Nations and the international com-
Rainsy Party. These complaints were rejected outright by munity.
clerks and were never reviewed by council members. This tribunal, if successfully established, will have the
jurisdiction to hear charges of genocide, crimes against
Structure of the Judicial System humanity, and war crimes levied against Khmer Rouge
In civil and criminal matters, cases are initiated at the court members who are believed responsible for the death of
of first instance, the municipal court, or the provincial about 1.7 million people during their period of their rule,
court. Appeal is a matter of right in both civil and crimi- from April 17, 1975, to January 7, 1979.
nal matters, and the Court of Appeal will hear an appeal de
novo on both factual and legal issues. A further right of ap- National Elections Committee
peal, on legal grounds, can be made to the Supreme Court, The National Elections Committee (NEC) is a body es-
the highest court for general cases unrelated to constitu- tablished in 1997 to administer the election of members
tional law issues. The structure of the Cambodian court of the National Assembly and commune elections and to
system is shown in the accompanying figure. adjudicate electoral disputes. The Constitutional Council
244 CAMBODIA
is its final appellate body. Although the NEC was sup- Cambodia Judiciary
posed to be an impartial body composed of representa-
tives of all parties that contested the 1993 elections, in re- Category Judges Prosecutors Clerks
ality its ten members were appointed by the CPP.
Constitutional Council 9 15
CAMEROON 245