by Basil Fernando

Problems Facing the Cambodian Legal System examines the nature of the Cambodian legal system. Some people assume that a civil law system (the French system) exists in Cambodia. The basic thesis of this book, however, is that it is the socialist system of justice that is found in this country.

Since the Paris Agreements and the intervention of the United Nations Transitional Authority for Cambodia many attempts have been made by the State and international agencies to bring about a transformation of the system. Given the devastation suffered by Cambodia which is far beyond any human can imagine, the impact of such attempts for change is considerable.

However, such impact has remained peripheral rather than substantial. The reasons for this, in my view, are that the assumptions on which such work has proceeded have been conflicted with the actual historical development of the Cambodian legal system from 1975 to 1993. This book attempts to demonstrate some aspects of that conflict.

The development of the legal system has an enormous significance to the political development of Cambodia. The working of the Constitution of Cambodia, adopted in September 1993, has been virtually made impossible due to the contradictions arising from the legal system. Sometimes it is argued that political change must precede any change in the legal system. However, it can be argued with equal plausibility that political change in Cambodia is at a dead end due to lack of a legal mechanism to effect such change.

The quick fix approach to Cambodian political and legal systems has already proved futile. On the other hand, attempts to return to the pre-Khmer Rouge, French-Sihanouk era is also impossible as Pol Pot’s "wipe out the past policy" was so complete. Only programmes with a long-term perspective for reforms can break through the anarchy which has produced a peculiar form of authoritarianism in Cambodia.

This book consists of essays on the findings at a consultation on the judiciary in Cambodia and several papers related to the theme.

I must express my gratitude to Justice Michael Kirby who has provided a foreword for this book. His contribution to the discussion on the Cambodian legal system is very extensive and important. I thank the editor of Phnom Penh Post and the journal of the Centre for Independence of Judges and Lawyers (CJIL) for the papers reproduced from their publications. This publication would not have been possible without the support of Lone Hogel of the DanChurchAid. I must also thank many people, mostly the Cambodians themselves, who have managed to keep up a lively discussion on the issue despite the dismal situation that they continue to face in their country. The sorts of contradictions they face are similar to those that are found in the writings of Alexander Solzhenitzin.

The complexities involved in the Cambodian legal system constantly remind me of one sinister character, Andrei Vyshinsky, Joseph Stalin’s prosecutor who distorted legal principles to provide a semblance of legitimacy for the totalitarian State. His imprint still remains in this once happy country that is trying to rise from the ashes of destruction caused by Stalin’s disciples. In essence, achieving change in the legal system of Cambodia is to exorcise the ghost of Vyshinsky out of the Cambodian soil.

Problems Facing the Cambodian Legal System is published by the Asian Human Rights Commission, July 1998, Hong Kong, 160 pages. It includes a foreword by Justice Kirby, former special representative of the Secretary General of the United Nations for Human Rights in Cambodia, and a message from Dato’ Param Cumaraswamy, U.N. special rapporteur on the independence of judges and lawyers.

For ordering information, contact:

Asian Human Rights Commission
Unit D, 7/F,
Mongkok Commercial Centre,
16-16B Argyle Street,
Kowloon, Hong Kong.
Tel: + (852) 2698-6339
Fax: +(852) 2698-6367

E-mail: ahrchk@ahrchk.org