Justice v. Corruption: Challenges to the Independence of the Judiciary in Cambodia

Last month, the International Bar Association (IBA) Human Rights Institute issued a report entitled Justice versus Corruption: Challenges to the Independence of the Judiciary in Cambodia which paints a dark picture of the extent of political and financial corruption in the Cambodian judicial system. This report was prompted by the enactment of three controversial laws that enabled the Cambodian government to undermine the independence of the courts, but the IBA’s investigation went beyond these three laws to examine the judicial system as a whole, only to discover that, in addition to persistent problems of government interference with judicial independence, the entire Cambodian judicial system was riddled with both bribery and political corruption.

There are credible allegations that cases are often decided in favor of the party offering the larger bribe; Cambodian lawyers interviewed by the IBA researchers estimated that 90% of the cases heard by the courts involve bribes to judges or clerks, and that when no bribe is offered, judges often give no attention to the case, and court staff will refuse to release basic information, or give lawyers access to the case files. In addition, the report found that trainee judges are asked for large bribes to access to their professional trainings — meaning that what the report calls the “the culture of bribe giving and receiving” is taught to judges from the very beginning of their career. In addition to this widespread bribery, political corruption of the judiciary is also pervasive. The report notes suspicions of judges and clerks sometimes being given specific instructions from powerful politicians how to decide cases in which these politicians have a financial interest.

To address this widespread, systemic corruption, the IBA offers a series of recommendations. A few of the report’s recommendations are concrete and implementable. For example, report recommends that the IBA exercise influence on the Cambodian Bar Association (the BAKC) to reform itself if it wishes to remain a member of the IBA; such pressure may be help to end corrupt practices in the BAKC itself, and encourage the independence and protection of lawyers in Cambodia. Unfortunately, however, most of the report’s recommendations, while appealing in theory, are not terribly practical, at least in the context of Cambodia today. In emphasizing idealistic, aspirational recommendations, the report perhaps missed an opportunity to recommend some more concrete, practical goals that, while not fully addressing the problem, might at least have some chance of being adopted.

Most of the IBA report’s recommendations are directed to the Cambodian government and other state entities, calling on them to adopt various forms of self-regulation that would promote more transparency and internal controls to ensure that bribe taking and political influence are absent from the judicial system, and more support to civil society to monitor and publicize shortcomings of all branches of the State, including the judiciary. Most of these recommendations are, unfortunately, quite broad and vague. More importantly, considering Cambodia’s political and social context, the sort of government self-regulation and pro-transparency reforms that the report endorses are unlikely to happen any time soon.

In fairness, the report does implicitly recognize the need for some sort of outside pressure to induce the government to address judicial corruption (and the more general need for judicial independence), by calling on Cambodia’s main opposition party (the Cambodian National Rescue Party, or CNRP) to adopt judicial reform as a central policy for the 2018 election and to challenge the government as often as possible on the subject of judicial independence. But although political opposition is often an effective way to challenge a government’s policy, the CNRP is unlikely to make judicial corruption and judicial reform a central theme, given that the it also takes advantage of the political corruption of the judiciary, regularly entering into deals with the government to have its militants released from jail (for examples, see here and here). In addition, the recent history showed that there are limits to the CNRP’s ability to use protests to put pressure on the government: in 2013, street protests following allegations of election rigging led to significant violence.

A more practical approach would entail less dramatic and more specific measures that could be pursued through close collaboration between the Cambodian authorities and the international community. In particular, such efforts could focus on the issue of unqualified judges who owe their positions to political influence or bribery, and are protected from accountability. This is one of the main obstacles to ending corruption in the judiciary. Measures to address judicial qualifications are in some ways less satisfying, in part because they do not address corruption directly. Yet these tangible, incremental improvements do (indirectly) mitigate an important underlying contributor to judicial corruption, and may also lay the foundation for more comprehensive reform in the future. Efforts along these lines might focus on three main areas:

  • The judges’ status: The international community should push for the establishment of an objective and transparent process of appointment for judges. Information on judicial vacancies, recruitment criteria, salaries, and judicial selection procedures should be made widely available to the public. This would imply heavy monitoring by the international community and constant warning to the government when a violation is detected. For resources reasons, monitoring could be delegated to an NGO, but foreign states should always be the only ones to interact with the Cambodian government on these issues. In addition, this increased transparency and monitoring would help to create a system conveying a clear message that ethical conduct is important, by making it a factor in performance evaluation and advancement. To that end, we could imagine a periodic system of judicial evaluation in which a judge’s ethical conduct is assessed both internally, by his peers, and externally, by the litigants before him. To go further, the result of such evaluation could even be published.
  • The judges’ work conditions: Preserving the independence of competent judges and court staff requires high enough salaries to allow them to support themselves and their families decently, without having to take bribes. In addition, decent working conditions (facilities, staff support, and workload), and opportunities for advancement are also important factors in attracting and retaining competent staff motivated not to engage in corruption. Furthermore, corruption in the judiciary is more likely when there is discretion to assign a particular case to a particular judge; therefore, an important anticorruption reform would be creating a system for computerized random assignment of cases to judges. All the above measures entail increasing funds allocated to the judiciary. The IBA’s report briefly mentions the issue of budget, but again, relies on self-regulation. It would obviously be very difficult for the international community to dictate the government how to use founds to be allocated to the judiciary, but there might be alternatives to self-regulation. Indeed, if the government agrees (perhaps under pressure), foreign countries could put together teams of experts to help manage the judicial budget in a more rational way. Foreign countries could also incentivize the government to do so by allocating special financial aid to be used only for the above mentioned purposes. Such funds could be managed by an independent third party, to avoid any risk of corruption.
  • Accountability for judges, courts employees, and lawyers: Although it may be unrealistic to imagine that Cambodian authorities are ready to adopt a genuinely efficient, impartial, and transparent system of judicial accountability, it is not too early to promote certain accountability mechanisms. One way of doing so would be for international community to involve Cambodia’s existing Anti-Corruption Unit (ACU). Even if concerns remain over its independence and effectiveness, the ACU has led a few successful actions in the fight against corruption (for example, see here and here). The ACU should be put in a position to initiate and oversee investigations into allegations of corruption within the judiciary. This implies an adequate system of reporting, including measures for protecting the anonymity of whistleblowers (something that does not currently exist). The next step for the international community would be pressure the Cambodian government to create a special anticorruption judicial authority to insure independence and fairness of anticorruption proceedings. This latter step would be deeper reform that would take several years to implement, and might not be immediately acceptable to the government. Still, as a longer-term objective, it is perhaps more realistic than expecting the Cambodian government to commit to full-fledged judicial independence across the board.

In addition to the above measures, there are also several things that civil society could do (and that the IBA might have more aggressively encouraged) that do not require the active cooperation of the Cambodian government, and for that reason might be more realistic in the short-to-medium term. Of course, to the extent that the Cambodian government has recently shown more hostility to NGOs, taking threatening actions right now might not to be effective. However, there are incremental non-aggressive civil society initiatives that the government would be likely to accept, or at least not oppose:

  • Promoting legal and ethical standards to legal professionals: The IBA report correctly observed that legal education and ethics training, for both law students and legal professionals, is essential to ending judicial corruption. However, the IBA limited its recommendations in this regard to the government, the Supreme Counsel of the Magistracy (SCM) and the BAKC. However, these entities are not likely to self-regulate. Thus, civil society has an important role to play. Independent NGOs could organize (voluntary) ethics trainings and workshops for judges, prosecutors, and lawyers. In the same way, the IBA could organize in-country workshops on anticorruption compliance in the legal profession for senior level private practitioners. Such workshops have been organized in other countries with the support of the local law societies and/or bar associations. Although training programs for judges and prosecutors have already been organized in Cambodia, civil society need to intensify their frequency, and make them more concrete. These trainings should uphold the application of the 2007 Code of Ethics for Judges and Prosecutors, and perhaps could lead to the publication of an Annotated Code of Ethics (with commentary), as was done with the Annotated Code of Criminal Procedure. Such an annotated code could serve as a guide to judicial conduct and would be the reference to measure potential abuses. The government would likely not oppose such professional training, and might even assist. In addition to training, an independent NGO could create mechanisms to provide guidance to legal professionals confronted with ethical questions (which would not require participation of the government).
  • Promoting legal and ethical standards to the public: Instead of asking the government, the SCM, and the BAKC to promote transparency across the board (something these entities are not currently willing to do by themselves), the IBA report should have recommended certain concrete, incremental steps that civil society take steps to prepare the government for greater future transparency. For instance, NGOs could organize outreach activities for the citizenry to educate the public about the court system and (existing) accountability mechanisms. Beyond these outreach activities, NGOs could get involved in a large project a creating a database centralizing and publishing laws and judicial decisions. Today, a few legal databases exist in Cambodia, but they are far from being comprehensive, and should be compiled to a general database (for examples, see here and here).

The sorts of actions sketched above, and others like them, would both provide some incremental improvements in the short term, and would provide the foundation for deeper reforms in the future that would reach the ideal goals set by the IBA’s report.

10 thoughts on “Justice v. Corruption: Challenges to the Independence of the Judiciary in Cambodia

  1. This is a very interesting post and I think all of your suggestions would be productive. When it comes to the qualifications of the judiciary, however, I wonder if it’s necessary to start even earlier. When I was in Cambodia, I was told that admission to almost all schools (especially medical school, but presumably including law school as well) was entirely dependent on bribes; similarly bribes were used to pass licensing exams. I wonder if we have a prayer of reducing corruption in the judiciary until we can ensure that all of those participating in the process — including the lawyers as well as the judges — are competent to be there.

    • You are making an excellent point. I also read several newspaper article about bribing professors for grades or to be allowed to cheat during exams. Corruption in education appears to be pervasive – although I never experienced it myself, when I was teaching at university there.

      I fully agree that eliminating corruption from universities is important to insure that future lawyers and judges are competent. The Ministry of Education seems to be aware of it. Last year, large scale operations to take the issue at hand were launched. For instance:
      http://www.theguardian.com/global-development/2014/sep/02/cambodia-corruption-crackdown-exam-cheats

      Nonetheless, to fully eradicate corruption from the education system, I believe increasing the salary of professor would be necessary. The income of professors are so low today that they cannot decently support themselves and their families.

  2. You mention that the CNRP often takes advantages of the corrupted judicial system for its own purposes, and then link to a few examples of deals–is there reason to think, or is it common knowledge that, those particular deals were tainted by corruption? Or is it just likely that, because there is so much corruption flowing through the Cambodian political and judicial system, that some was involved there, too? I guess I’m curious partly because if there’s actual corruption going on between the two opposing parties, that seems particularly perverse–and particularly bad news, as it would really drive home that some sort of insular game-playing is taking place.

    I’d also be interested to hear your thoughts on who the “international community” should be pressuring to make the changes you recommend (e.g., judge appointments), given your skepticism that either political party will be willing to really engage with anticorruption efforts (the ruling party alone? certain figures or branches? are there good odds of the opposition winning in the elections and, if so, would they continue any reform efforts begun by the prior government or do they also need to be brought into the anticorruption process now? would they even agree, if it might make the current government seem more effective?). Or would foreign pressure (and the sort of NGO monitoring, accompanied by, as you suggest, foreign states taking the lead when violations are found) really be enough to change that dynamic? If so, what form of pressure would be effective/should they be adopting?

    Please forgive me for being so scattered in my questions, and for not responding to some of your more substantive suggestions–it’s just that your post has so many interesting angles to explore.

    • These are indeed, important questions. Regarding the deals between the CNRP and the governing power, pervasive corruption in the judiciary is somehow involved. The essence of these deals is that the CNRP is conceding something to the government in exchange of its assistance to free detained militants. This assistance is interference with (or maybe even order to) the judiciary to free these persons. This implies some kind of political corruption over the system that the CNRP is using. I did not mean that the CNRP itself is corrupted.

      Furthermore, regarding the chances of the opposition to win the elections, it is difficult to say. I am not a political expert but what I can say is that during the last election in 2013, the CNRP showed that it could mobilized a large number people – on the streets and at the ballot boxes. The official results of this elections gave the CNRP 55 seats against 68 for the CPP (the ruling party). This is the first time since the 1993 national election that the ruling party’s seats dropped and the opposition party’s rose. Unfortunately, to the extent that there are serious allegations of this election being rigged by the governing power, we cannot be sure that these numbers are reliable.
      If the CNRP is elected, would it continue any reform efforts begun by the prior government? It is also difficult to say. In previous elections, CNRP’s campaign focused inter alia on promoting democracy, fighting corruption, building independent judiciary and state institutions. This is encouraging. However in the 2013 campaign, the CRNP focused on increasing family household income to attract a greater number of voters.

      Regarding the role of the international community, I believe governing power should be pressured, because the state is still very centralized. As for the forms of pressure, “traditional” diplomatic pressure could be used: diplomatic sanctions (limitations on travel, cancellations of meetings with high ranking officials, limitation on cooperation…); economic sanctions (use tariffs and/or limitations on imports and exports, limitation of funding…). However, I would personally chose a more subtle approach to pressure the government because the point would be not to harm the country. “Soft pressure” could consist first in the multiplication of public declarations of foreign states on the issue. Second, without withdrawing financial aid, donors supporting judicial reform programs could review the terms of their participation and incorporate anticorruption measures directly into the programs.

  3. It is a frustrating situation, and I think your suggestions would be a strong start. There may be truth to what Sarah mentioned, that there are many instances of bribery and corruption earlier in the life cycle of a Cambodian judge. At the same time, if every effort were focused only in areas with systems of corruption that could be isolated or pinpointed, my sense is that the pervasiveness of corruption in Cambodia would overcome all possible inroads. I particularly like your suggestion for “less dramatic and more specific” approaches to the issue in one area. Your idea for improving work conditions and providing livable salaries is a practical one. Just anecdotally, many of the Cambodian teachers I met while living there justified (to me, but perhaps also to themselves) taking bribes and giving “mandatory” extra classes because of their low wages. While it would certainly not stop the culture of impunity, living salaries might at least take away an official’s internal justification for accepting bribes.

    I am a bit more skeptical of the possible impact from public education campaigns. Cambodian communities, even in Phnom Penh and other larger cities, are quite close-knit with little personal privacy. Even if accepting messages from NGOs, I think many Cambodians would still fear repercussions of pushing too hard on any single member of the judiciary. Maybe anonymity of accountability mechanisms would help here, but I’m not sure how that would work.

    As to the CNRP, I believe there could be something more sinister behind why it will not make judicial reform its main platform. From some news articles, it seems like Sam Rainsy, the longtime main opposition leader, recently reconciled with Hun Sen after many years of fierce clashes. (See http://www.economist.com/news/asia/21650568-unlikely-rapprochement-after-long-stand-faithful-couple?zid=309&ah=80dcf288b8561b012f603b9fd9577f0e). While I, along with many others, am skeptical of the origins of the reconciliation, I think it will at least come with a softening of Sam Rainsy’s criticisms of the government.

  4. As someone who does not have experience living or working in Cambodia, I apologize if my question is overly simplistic or inapplicable, but I am wondering whether the international business community might have a role to play in reducing judicial corruption (or the culture of corruption more generally) in Cambodia. Specifically, is there a point at which judicial corruption might prevent foreign companies from investing in Cambodian operations? If so, perhaps the pressure of attracting business to spur economic growth might lead political actors to make a serious effort of reducing judicial corruption. Although it would be preferable for the desire to reduce corruption to not be spurred by economic considerations, perhaps economic influences may spur change faster than other mechanisms.

    • This is a very good point and I am convinced that foreign investments could help reducing corruption to some extent.
      The IBA’s report formulated recommendations to the international business community, which are not oriented specifically toward judicial corruption but toward corruption causing violation of human rights (which has also been an issue in Cambodia regarding land grabbing and property rights). The reports recommended the corporations investing in Cambodia to “ensure that they have conducted a full human rights impact assessment prior to concluding any investment deals with the government of Cambodia”.

      Regarding judicial corruption specifically, it’s a possibility that limiting – one way or another – foreign investments could be effective pressure on the government to take measures. However, if such approach is adopted I believe we will have to find the right balance between these pressures and:
      – The harm limiting foreign investment can cause to development,
      – The fact that foreign investments can have a positive effect on corruption in general: transition to good business practice could be the result of a regulation of corruption through the market itself. Many multinational companies are bound by their domestic regulations criminalizing foreign corruption, such as the FCPA. Thus, their presence in Cambodia slowly introduces good practice through their interactions with public and private sectors.

  5. I didn’t scrutinize the report your blog responds to but did have a quick read through and my very first impression wasn’t so much determined by its (indeed) toothless recommendations but the omission of any historical perspective. Nothing in the situation analysis is particularly new. The IBA mission may have been triggered by three new laws but the judiciary has been in the state it is now in for a very long time and in that light the three laws are relatively minor changes in the landscape. That one needs to pay a big bribe to get a place in the Royal School for Magistrates was already described by Keang Un in his 2004 dissertation (which includes an-depth look at the judiciary). The incidence of bribery as per the lawyers interviewed is a figure that I haven’t seen before but it sounds very plausible, given that the judiciary is seen as the most dishonest institution by Cambodians since the beginning of public opinion polling in the late 90s. As an aside: the lawyers didn’t mention that their profession is seen as very actively involved – brokering the bribe-paying on behalf their client…..

    The lack of institutional memory displayed by the dealings of the ‘international community’ with regimes like the Cambodian is well known (a recent reference to this general state of affairs here: https://foreignpolicy.com/2015/10/13/fools-errand/). But apart from this there are geopolitical and other reasons that often decouple the continued provision of, often increasing amounts of aid, to governments that objectively ignore the conditionalities attached to it. A recent analysis of the Cambodian case is Ear Sophal’s Aid Dependence in Cambodia. Overall the trend over time is an increasing influx of ‘Western’ aid correlating with a decreasing policy influence of its donors, the parallel increase of Chinese money and FDI being a major reason.

    I know that this is somewhat tangential to your topic but what matters crucially when thinking about what could be done to improve the situation, is the need to take history and the role that previous ‘foreign community’ engagement has played in it, into account. One very obvious example is the establishment of above mentioned Royal School for Magistrates which received generous donor support. The way it operated from the start, requiring substantial bribes to secure a place, cemented rather than reformed the status quo. By now the judiciary is ‘rejuvenated’ and reform opportunities to introduce a critical mass of qualified young and clean personnel are gone; opportunities that existed initially because at that time the system employed a substantial proportion of unqualified and corrupt judges and prosecutors close to retirement . Capacity building initiatives such as this do not generally allow for a second chance. This scenario and others like it could be foreseen and pre-empted if sufficient attention was to be paid to the social reality within which foreign interventions take root. I’m sure you’re familiar with the work of Caroline Hughes on Cambodia. The current reality being a co-creation of the government and its foreign donors is her basic and well-documented argument. I strongly feel that this active role of donor money receives way too little recognition. I’m not talking sub-optimal cost effectiveness and other issues with aid, I’m talking positive harm done….

    In general I am wary of the lack of awareness/capacity argument, especially regarding the Cambodian elite. Again, my argument is to take history seriously. The CPP may have dropped communist planned economy thinking as its framework for its economic policy, but it hasn’t let go of democratic centralism as its ideology for running the state. And that doesn’t come with a separation of powers, not because of lack of understanding but based on a well-worked out alternative view on how a state should be run. The CPP’s rhetoric and presentation to the outside world may tactically go along with the trias politica etc., but its actual governing style is much closer to that of parties/countries that still self-identify as communist.

    In terms of your own recommendations: the above makes me pessimistic about most of what you propose by way of alternatives to the IBA recommendations. One historical precedent I didn’t yet mention is the appointment of Global Witness in a ‘inspectorate role’ regarding the forestry sector in the 90s….and we all know how that one ended.

  6. Your post immediately reminded me about the recent news involving the almost three dozen Ghanan judges involved in a bribery scandal. From the coverage I’ve seen, it sounds like egregious use of power captured and infuriated the nation and became, what one BBC articles calls, “the lead story in local media for almost a month.” This got me thinking though, about the differences in citizenry reaction in Ghana and Cambodia. Obviously, there are complicated cultural and institutional reasons that may account for the reaction, but why do you think even given such intrenched and rampant judicial bribery, Cambodian citizens have not protested to judicial misconduct in the way that they did to allegations of election rigging? (or maybe they have?) I know some are skeptical about the potential impact of recommendations aimed at developing a more active and transparency-inclined public, but I really think this suggestion is foundational to targeting corruption at such high levels. Perhaps it is too idealistic a notion, but it seems to me that in such contexts, change won’t happen unless those asking for it reaches a critical mass.

    Thanks for sharing such an interesting piece!

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