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.