GENEVA (27 May 2014) – Following the enactment of the three fundamental laws on the judiciary by the Cambodian National Assembly last week, the United Nations Special Rapporteur on the situation of human rights in Cambodia, Surya P. Subedi, warns that the lack of consultative process concerning these three draft laws has set a worrying precedent for future key legislation:
“For many years in my capacity as the Special Rapporteur on the situation of human rights in Cambodia, I have been continuously pressing* for the enactment of the three fundamental laws on the judiciary without further delay. They constituted the core of my recommendations in my report of 2010 which had a focus on judicial reform. Therefore, in principle, I welcome the enactment of these laws by the National Assembly of Cambodia.
However, I also have emphasised on many occasions that speedy enactment should not come at the cost of the key principles of any law-making process, namely: transparency, accountability and participation.
I had been encouraged by the fact that in 2012 the Government had pledged to the development partners involved in legal and judicial reform that it would hold public consultations on the three draft laws.
It is in this context that I very much regret that despite this commitment and repeated calls for public consultations, including from civil society, the Government did not share the three draft laws neither publically nor until the day before the National Assembly started examining them.
The three draft fundamental laws represent a unique opportunity to establish strong guarantees for the independence of the judiciary. I had previously recommended that the law clearly prohibit judges and prosecutors from being active members of any political party. I am concerned that the draft law on the status of judges and prosecutors does not contain such an explicit prohibition.
I am also deeply concerned about the fact that the Ministry of Justice has been given a number of powers over the judiciary. In order to preserve the independence of the judiciary, no member of the executive should be involved in issues related to the appointment and promotion of judges or any disciplinary matters affecting them.
The lack of consultative process concerning the three draft fundamental laws does set a worrying precedent for future key legislation. I continue to call on the Government to release for public and expert review all draft laws before the Council of Ministers as soon as possible, particularly those with implications for the realisation and enjoyment of human rights. I also call on the National Assembly to do the same with all draft laws that have or will come before it.
While the three laws as adopted by the National Assembly seem to fall short of the international standards required to make the judiciary truly independent, it should be recalled that law making is an organic and ever-evolving process. It is in this spirit that I call on the Senate and the Constitutional Council to closely consider the international human rights obligations that Cambodia has voluntarily accepted, and ensure that the three laws substantially comply with them.”
(*) The Special Rapporteur has submitted his recommendations in five substantive reports to the UN Human Rights Council on the situation of human rights in Cambodia, and will present his next report to the Council in September 2014. Check his previous reports: http://ap.ohchr.org/documents/dpage_e.aspx?m=107
Professor Surya P. Subedi was appointed by the UN Human Rights Council as the UN Special Rapporteur for Human Rights in Cambodia in March 2009. As Special Rapporteur, he is independent from any government or organisation and serves in his individual capacity. He is currently Professor of International Law at the University of Leeds in the United Kingdom and a practising Barrister of the Middle Temple in London. He is the Vice President of the Asian Society of International Law and editor of its flagship publication – the Asian Journal of International Law published by Cambridge University Press. For more information, log on to: http://www.ohchr.org/EN/HRBodies/SP/CountriesMandates/KH/Pages/SRCambodia.aspx
UN Human Rights, country page – Cambodia: http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/KHIndex.aspx
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