CHAPTER SIX

Role of the State and Civil Society in Consolidation of Democracy

This chapter examines the role of NGOs and the civil society in promoting

democratic outcome in Cambodia. This chapter also discusses the role ofNGOs and the

challenges faced by these NGOs in promoting consolidation of democracy in Cambodia.

In previous chapters, it is argued that although Cambodia is a liberal democracy

for the past seventeen years, it still has not reached the stage where it could be classified

as a consolidated democracy. In an attempt to explore various reasons that hinder the

process of democratisation, this chapter explores an important internal aspect-•

relationship between the state and civil society. The chapter also considers a question,

what role do the civil society organizations play in pressurising the state to deliver and

consolidate democracy? (Haynes, 2007: 102).

It is imperative to mention, that the civil society is not merely an ordering of the

elite groups, but an active political participation of all the citizens of Cambodia. It is

clear from the previous chapters that the powerful leaders have been resisting the

deepening of democracy in Cambodia. They do not encourage any active civil

involvement in the internal politics of the country. Consolidation of democracy, to a large

extend, dep~ds on political culture and political institutions of the state.

Almond and Verba, in their book, the Civic Culture (1963), establish a

relationship between political culture and stable and effective democracy. Political

culture, according to them is the political orientations such as, people's attitude toward •

different components of individual efficacy, political system, which detennines how a

153

people interpret the proper role of government and how the government operates. They

discerned three general political cultures:

Participant: People understand that they are citizens and pay attention to politics.

Subject: People understand that they are citizens and pay attention to politics, but

more passively.

Parochial: People may not even feel that they are citizens of a nation (Shively,

2005).

Role of Civil Society

Scholars (Diamond) define civil society III various ways. Some argue that the civil

society is a range of organized groups (NGOs, mass media and think tanks) and

institutions that are independent of the state, voluntary, and self-reliant. In a democracy, •

civil society groups have respect for the law, for the rights of individuals, and for thc;~

rights of other groups to express their interests and opinions. Civil society groups may

establish ties to political parties and the state, but they must retain their independence,

and they do not seek political power for themselves. I

According to Diamond, the most basic role of civil society is to limit and control

the power of the state. Civil society actors should watch how state officials use their

powers. They should raise public concern about any abuse of power. They should lobby

for access to infonnation, including freedom of infonnation laws, and rules and

institutions to control cOII'uption. Civil society should expose the corrupt conduct of

public officials and lobby for good governance refonils. Even where anti-corruption laws

and bodies exist, they cannot function effectively without the active support and

participation of civil society. Civil society should promote political participation. NGOs

can do this by educating people about their rights and obligations as democratic citizens,

and encouraging them to listen to election campaigns and vote in elections. NGOs can

I Larry Diamond, "What Civil Society Can Do to Develop Democracy", Presentation to NGO Leaders, February 10, 2004, Convention Center, Baghdad.

154

also help develop citizens' skills to work with one another to solve common problems, to

debate public issues, and express their views.2

Furthermore, he asserts that civil society organisations can help to develop the

other values of democratic life: tolerance, moderation, compromise, and respect for

opposing points of view. Civil society must be involved as a constructive partner and

advocate for democracy and human rights training. NOOs and interest groups can present

their views to parliament and provincial councils, by contacting individual members and

testifying before parliamentary committees. They can also establish a dialogue with

relevant government ministries and agencies to lobby for their interests and concerns.3

The civil society can strengthen democracy to provide new forms of interest and

solidarity that cut across old fOllns of tribal, linguistic, religious, and other identity ties.

Democracy cannot be stable if people only associate with. others of the same religion or . . ..

identity;· When people of different religions and ethnic identities come together on the

basis of their common interests as women, artists, doctors, students, workers, fanuers,

lawyers, human rights activists, environmentalists, and so on, civic life becomes richer,

more complex, and more tolerant. 4

It can provide a training ground for future political leaders. NOOs and other

groups can help to identify and train new types of leaders who have dealt with important

public issues and can be recruited to run for political office at all levels and to serve in

provincial and national cabinets. Experience from other countries shows that civil ,

society is a particularly important arena from which to recruit and train future women

leaders. It can help to infonD the public about important public issues. This is not only

the role of the mass media, but of NGOs which can provide forums for debating public

2 Ibid.

3 Ibid.

4 Ibid.

155

policies and disseminating information about issues before parliament that affect the

interests of different groups, or of society at large. 5

The civil society organizations have a vital role to play in monitoring the conduct

of elections. This requires a broad coalition of organizations, unconnected to political

parties or candidates, that deploys neutral monitors at all the different polling stations to

ensure that the voting and vote counting is entirely free, fair, peaceful, and transparent. It

is very hard to have credible and fair elections in a new democracy unless civil society

groups play this role. It strengthens citizens' respect for the state and promotes their

positive engagement with it. Therefore, a democratic state cannot be stable unless it is

effective and legitimate, with the respect and support of its citizens. Civil society is a

check, a monitor, but also a vital partner in the quest for this kind of positive relationship

between the democratic state and its citizens.6

.. . Cambodian politics is govemed by the currently ruling part (the CPP), ever since

the country adopted democracy. The CPP controls the nation by "reinforcing the existing

patronage networks through institutionalized and centrally sanctioned corruption. Such

networks impede the establishment of the rule of law monitored by effective and

independent institutions that could check the power of those networks" (Kheang,

2004:232). Due to the decline of FUNCINPEC's strength, "it has become an add-on to

the existing CPP patronage networks".

Scholars argue that a civil society is the most important force that can imply

pressure on the government to deliver democracy as envisaged in Cambodian

constitution. They argue that the civil society is constituted predominantly of non-

governmental organizations (NGOs) ih Cambodia. However, the NGOs are struggling to

narrow down the existing imbalance in strength between the state and civil society.

5 Ibid.

6 Ibid.

156

Role of NGOs, in Human Rights and the Rule of Law

In a response to government's inability to promote democracy in the country, the

NGOs have been making conscious efforts to redress past and present imbalances to

protect social, political and legal rights of ordinary people. Such NGOs have engaged in

"raising awareness among the general public and government officials on human rights,

the rule of law and accountability issues. They have also been involved in lobbying and

advocating for strengthening the rule of law through legal and judicial refonn" (Kheang,

2004: 231).

After the UNT AC conducted election in 1993, there has been a significant

increase in the number ofNGOs. The NGOs work in the area of human rights, rule of

law, democratic development and good governance. Many scholars argue that (Van and

Kheang) argue that with the establishment of democracy in Cambodia since 1993, there .,.",

has been an influx of influx ofNGOs. "During the transition period, several NGOs , ...... ,

Non Governmental Organizational (NGO) movement has increased dramatically

in Cambodia. In 1992, there were only two NGOs, but the number reached to 1100. The

Cambodian Cooperation of Committee (CCC) is the largest of NGO Coalition in the

country. It is said that less than 10% of Cambodian NGOs have involved political issues.

Their work has been driven by the political parties because some political parties have

been financed from their opcmltion C0i5ti5.8

7 United Nations Research Institute for Social Development, 1994, p. 19.

8 Cited in Tooch Van, "International Aid and Democracy Building Process: Cambodia", Masters of Arts in Law and Diplomacy Thesis, The Fletcher School, Tufts University, 2004, p. 15 -16.

157

Majority of NOOs that are funded by international NOOs, worked directly with

people at a grassroots level, with aim of serving common interests and improving public

good. These NO Os work at all levels to enhance community infrastructure and social

change. Thus, they are considered an important body that can promote democracy in the

entire country. "The coalition NOOs have organized demonstrations and promoted

alliances to demand change in important community issues, such as land ownership and

use, forestry and fishery concerns and a peace movement" (Van, 2004).

According to Kheang, many NODs have conducted education and Training

campaigns. Human rights and democracy NOOs have made a significant contribution by

promoting the universal concept of human rights as a countervailing force to the state-

centered human rights discourse. These organisations conduct seminars that involve

government officials and civil society representatives, which facilitate the government

and civil society to interact with each other (2004:234).

The NOO Forum consists of local and international non-governmental

organiza!ioHs c.ommitted to provide humanitarian and development assistance to

Cambodia. The Forum is available for infonuation-sharing, debate and advocacy on

priority issues that affect Cambodia's development. It plays an important role to

"highlighting the impact of development processes and economic, social and political

changes on Cambodians". Its mission is to inform and empower people participation in a

strong and vibrant civil society for the benefit of poor and vulnerable people in

Cambodia. The main campaigns are:

1. Land issue Project, the NOO ··influence government and donor policies and

practices so that they consider and address pro-poor land reforln".

2. Resettlement and housing rights project: "NOOs cooperate to protect the rights of

poor people in infor mal settlements to secure tenure and the rights of people

affected by resettlement and relocation so that they are fairly compensated and are

not worse. off than before".

158

3. Forest livelihood and plantation project: "NOOs cooperate to empower local

communities living within or near either forests or areas converted to

plantations to gain secure tenure over the forest and other natural resources they

have traditionally relied upon for their social, economic and cultural

development" .

4. Indigenous minority rights project: "NOOs cooperate to ensure that the capacity

of indigenous minority people to advocate for their own rights is strengthened,

that the government is supportive of this process, and that indigenous minority

people's concerns are heard and acted upon by government, donors and the wider

community, particularly in relation to their rights to land and natural resources". 9

Neutral and Impartial Com~ittee for Free and Fair Elections in Cambodia (NICFEC) .

is a coalition -of local Cambodian NOOs, which work together on election education and

monitoring issues. It's mission id to strengthen democracy, the rule of law and human E -.".

rights in Cambodia, acknowledging their integral role in social development. It engages

in education, advocacy and training programs to promote human rights and good

governance. 10

The Committee for Free and Fair Election's (COMFREL) came into existence with a

mission to create an infOlmed and favourable climate free and' fair elections, and

meaningfulness of post election.

The organization engages in the activities of:

9 For more infollnation about the organization, visit, www.ngoforum.org.

10 Cited at the official website ofNICEf at www.nicef.org.

159

1. Advocacy: civil society input for the developments of the legal framework for the

election and better local governance.

2. Capacity Building: Strengthen COMFREL's networks.

3. Civic Education: Infonn and educate the public on their rights and participation.

4. Monitoring: Increase transparency and confidence in the election process.

5. Media and External Relations: Improve relationships and communications with

media, relevant state institutions and other international Organizations, stimulate

debate and provide infonnation on election issues to the media and public. II

.-During the- recent election monitoring, the COMFREL reported, "village chiefs and

commune council members were not following instructions to post voter lists for public

review to ensure that those who want to vote know they are eligible". 12

Cambodian League for the Promotion and Defense of Human Rights, known as

LICADHO, is leading NGOs that aims to protect human rights in Cambodia and to

promote respect for civil and political rights by the Cambodian government and

institutions. LICADHO continues to be an advocate for the people and a monitor of the

government through wide-ranging human rights programs such as:

a) The Human Rights Education to government officials, police, students and

monks, and public .

• II This information is available on the official website of COMFREL at www.comfrel.org

.

11 An article, "COMFREL Unveils Irregularities in National Election Process", New Voice of America, 24 August, 2007.

160

b) The Monitoring Office that investigates human rights violations and assists

victims with the legal process. It monitors 18 prisons to assess conditions and ensure that

pre-trial detainees have access to legal representation.

c) The Medical Office provides medical assistance to prisoners and prison

officials and provides medical care and referrals for victims of human rights violations.

d) Project Against Torture provides comprehensive rehabilitation services to

victims of torture and conducts advocacy against torture.

e) The Children's Rights, it educates the public on children's rights, creates child

protection networks at the grassroots level and investigates violations of children's rights.

1) The Women's Rights, it educates the public about women's rights, investigates

women's rights violations, and advocates for social and legal changes. 13

LICADHO continues to investigate and monitor the cases related to human rights

violations by establishing cordial relations with the government officials. The

organisation is known for its campaign for provincial child labor program that deals with

the issues related to child rights and labour issues. Several government officials and their

staff joined the parents and children participated to discuss issues of child abuse and their

rights. The participants included provincial and district authorities, parents and social

affairs department. 14

Similarly, the Khmer Institute of Democracy (KID) worked with the ministries of " education, interior and national defense, to provide a six-day training of trainer's event

(TOT) course to its target group, the Khmer Rouge defectors. Human rights concepts,

international law, and rule oflaw, market economics, democratic practice, Buddhism, and

moral and ethical values were the topics of discussions. ) 5

13 This information is based on the official website ofLICADO. at http://www.licadho.orglaboutus.php.

14 Cristina Mansfield and Kurt MacLeod. "Advocacy in Cambodia: Increasing Democratic Space." May 2002. P 28. In Tooch Van, International Aid and Democracy Building Process: Cambodia, Masters of Arts in Law and Diplomacy Thesis, The Fletcher School. Tufts University, 2004, p. 57.

15 Frederick Z. Brown. "The Future ofNGO's in Cambodia." Washington Center, Asia Society September 23, ]997, p. 3, Cited in Tooch Van, International Aid and Democracy Building Process: Cambodia, Masters of Arts in Law and Diplomacy Thesis, The Fletcher School. Tufts URiversity, 2004, p. 57.

161

In addition to these organizations, USAID and T AF provided funding to the •

Cambodian Defenders Project (CDP) and the Cambodian Court Training Project (CCTP)

that worked directly with judges and prosecutors. Their aim is to improve the judicial

system and court process in Cambodia (Van 2005:57) Van asserts that although

democratic development in Cambodia still has a long way to go, but it certainty has made

some progress in this direction. The government now has started to recognise NGO and

civil society efforts.

In Preach Vi.hcar province, the number of NGOs is less because the local -----,-,.--

authorities still doubt their activities, and are reluctant to cooperate with the NGOs.

Whereas, Battambang province, has many NGOs because the NGOs, local community

and authorities share good networking relationship. Mansfield and McLeod stress that

there is enough room for significant improvement in the relationship between the NGOs .---

and government. However, NGOs need to "continue to approach the government in a

diplomatic and constructive manner. Collaboration between NGOs and civilians is an

effective vehicle for social change. It is possible for them to influence policy makers and

state bureaucrats who are the key decision makers in the government." (Van 2004: 62).

Similarly, another important NGO is, the Cambodian Human Rights and

Development Association (ADHOC), which was founded by a group of fonner political .' prisoners in December 1991 after the signing of the Paris Peace Agreements on October

23, 1991. ADHOC advocates basic rights, freedoms and liberties of people by providing

them the knowledge and understanding of human rights, law and democracy and of how

to defend these rights. 16

Pact Cambodia aims to empower people to live a dignified living, raise healthy

families and participate in democratic life. Their mission is achieve their goal by building

strong communities through strengthening the linkages among civil society, government

--------------------------------------------------------------------16 ADHOC, at http://www.adhoc-chra.org. •

162

and private sectors and building their capacity to obtain social, political, economic and

environment justice (Pact Cambodia).

Cambodia Defenders Project's (CDP) aims to provide free legal defense to the

poor and the vulnerable. Other similar NGOs, Legal Aid of Cambodia (LAC) provides

free legal services to the Cambodia's poor in both civil and criminal cases so that they are

fairly and equally treated in the society. 17 •

Cambodian Center for Human Rights (CCHR) aims to one of the main actors in

building a strong foundation of democracy at the grass-root level that creates public

awareness on human rights and democracy concepts and principles. CCHR is an

advocacy organization that helps grassroots participation by empowering local

communities through education of their civil and political rights .

• ,

There are evidences that even the court, at times, seek assistance of these human

rights organizations requesting the latter to act as an intelmediary, mediating conflict

between the police and the court. In some cases the court want the human rights NGOs

serve as witnesses to possible violence by the police against court officials including

judges (Kheang, 237-38).

However, these NGOs have been facing problems with the judicial system of the .' country, which protects influential people from being charged by the courts. Article 51 of

the Law on Civil Servants, mentions that any arrest of a civil servant requires prior

approval from supe:tiors. Since, this kind of pelluission is rarely granted, this article

intact, encourage bureaucrats to commit crimes, and allows officials, soldiers, and the

police impunity from persecution. (Asia Development Bank).

The organizations such, LICADHO, ADHOC, CDP and LAC were very vocal

about the threat of impunity associated with this article. Because of their persistence

demand and untiring efforts of amending this article, the government amended the article

17 For more information, visit the official websites ofCDP and LAC.

163

September 1999. Therefore, these NGOs have played a crucial role in introducing judicial

refOIms and advocating against widespread corruption at almost all levels of the •

government.

The Asian Human Rights Commission (AHRC) has been very vocal about the

Supreme Council of the Magistracy (SCM) of Cambodia, which is the supreme

governing judicial body and offers a code of ethics for judges. The AHRC is very

concerned that this code will also is similar to other weak laws of the country because of '. -.--~--.. ........ -.-

its weak implementation and dependence on the erratic "political will" of the country's

leadership, instead of depending on the institutions of the rule of law. The AHRC argues

that this code will not be effective until becomes an independent body, free of political

control, with a transparent and fair enforcement mechanisms. 18

"The SCM is responsible for the discipline of judges and the effective functioning •

of all courts of law". The critics of the SCM point out that the when seven of its nine

members are themselves judges and prosecutors, the how SCM effectively enforce the

code. Moreover, almost all of these seven members belong to the same ruling party, the

CPP. "Three of the seven members are openly known to be active members of the CPP.

One member is the president of the Supreme Court and a member of the standing

committee and central committee of the CPP. Another member is the president of the

Court of Appeals and is also member of the CPP, known to be actively participating in .' the party's activities." Therefore, it is difficult for judges to maintain and proclaim their

neutrality in political activities.19

It is argued that even in n the past, the SCM has not proved to effective in ." . -~----.

disciplining judges for misconduct. "For instance, in 2004, it did not act upon a request

by the Ministry of the Interior to investigate the corruption of certain judges. This

18 "Cambodia: Code of ethics for judges will not be effective without compliance mechanisms", Asian

Human Rights Commission (AHRC), press release, 28 May. 2007.

19 Ibid.

164

inaction created a confrontation with the ministry in question. Prime Minister Hun Sen

stepped in then with his "iron fist" policy which was allegedly aimed at stamping out •

con uption from the judiciary, but which instead had the effect of consolidating his

control of the judiciary. The SCM then brought to justice a number of judges only to

allow them to resume their nonnal judicial functions when the "iron fist" policy had lost

its thrust and petered out"?O

This why the AHRC argues, "If effectively enforced and well complied with, this

code could become a remedy to the pandemic corruption within the judiciary and other

branches of government. It will strengthen the independence of the judiciary, inspire

more public confidence in it, and lay a solid foundation for the rule of law in the

country". It argues that donors and expert organisations, which sponsor the legal and

judicial refOlm programme in Cambodia, to work with these two Cambodian institutions

for the effective enforcement of and compliance with this code of ethics. 21

It is clear from the previous discussions and above mentioned sources that

Cambodian judiciary is strictly controlled by the CPP. That is why the CPP is reluctant

to deal with the NOOs and they do not provide NOO access to the councilor the

government. "The only accessible state institution for NOO activities is the National

Assembly. Even within the National Assembly, they only have access to members of

FUNCINPEC and SRP. Furthennore, the National Assembly does not have any power in ."

initiating legal refonn (Kheang, 2004: 245 & 274).

Un, in an article argues that there have been new elements of civil society after

the 1993, known as non-governmental organizations. These NOOs attempt to change the

unfriendly relationship between state and society. However, they faced extreme

challenges, as the state manages to suppress any opposition to the government. At the

same time, the state apparatus is apparently weak in providing services and ensuring the

20 Ibid.

21 Ibid.

165

rule of law to its citizens. Moreover, the "civil society has not acquired sufficient

strength to pressure the state to adopt meaningful reform due to its exogenous and

endogenous weaknesses". 22

Civil Society and the State

Putnam argues that political involvement in less civic regions is impelled and

constrained by patron-client networks. The growth of civic organizations requires a civic

culture that underscores equal, voluntary and participatory nOl1ns 23. Patron-client

networks dominate Cambodia's civil society.

Although, the NGOs are allowed to exist in Cambodia, many of them are closely

associated with the government. The government NGOs works to discredit the work of

legitimate organizations. Therefore, the public remains unsure which NGOs can be

trusted and which are merely appendages of Hun Sen's government. Scholars state that

the "government has attempted to influence the work of independent NGOs by

introducing draft legislation to regulate their activities".24

The activities of independent NGOs and media are restricted by the government. .

"The print media is free from government control; however, this outlet does not reach •

many of the 80% of Cambodians living in the countryside. Many Cambodians are

illiterate so they are forced to rely on radio for information, and most radio stations are

state-controlled". 25

22 Un, Kheang, State, Society and Democratic Consolidation: The Case of Cambodia, Pacific Affairs. Volume 79, Number 2, Summer 2006, pp. 225-245.

23 Robert Putnam, "Making Democracy Work: Civic Traditions in Modem Italy", Princeton University Press, 1993. Cited in Un, Kheang, "State, Society and Democratic Consolidation: The Case of Cambodia", Pacific Affairs, Volume 79, Number 2, Summer 2006, p. 13.

24 "Transitional Justice in Cambodia: Challenges and Opportunities", Symposium Report, 9 September 2003, pA.

25 Ibid.

166

The government criticizes human rights and democracy NOOs for their

opposition to the government for the only purpose of receiving funds from international

donors. They claim that the Cambodian NOOs, exaggerate the reality of the human

rights situation in Cambodia in order to attract donors' attention, and operate to serve

political agendas (Kheang, 2004: 254).

Although the government tolerates the existence of NOOs, it puts number of

limits on their functions and freedom of expression. It clearly projects that the process of

democratisation has been hindered due to the "lack of democratization of both civil

society and the state.

"This state of affairs results from the way that Cambodian NO Os emerged.

Cambodian NOOs did not gradually emerge out of a society with densely fonned social . . .

. . capital. Rather, the rise of CNOOs was the product of the sudden availability of

intemational funding, political space created by the PP A and the continuation of

international political engagement . and financial support. However, after the concept was

adopted, its future involvement would be influenced by the local political, cultural, and

social context. Women's NOOs in Cambodia are based on hierarchical systems that are

enforced by patronclientelism" (Kheang, 2004: 264-65).

Scholars argue that the even the current NOOs that promote democracy and > --. •

Human rights can not be called democratic. These organisations suffer low in mobilizing

their mass base membership, which remains quite low. If the CNOOs are the core

components of the civil society, then they have to be consisted of the ordinary citizens. In

their response to the reasons behind this low civil participation in the NOOs, the NOOs

argue that the extreme poverty, lack of political will and education refrains the masses

from joining such organizations. They strongly believe that there is an urgent need to deal

these issues first before engaging people in mass movements. Moreover, given the

oppressive nature of the govemment, the people are scared to join those organisations

that are vocal about the government and their existing policies. The NOOs have to be

167

very careful about carrying out any demonstrations or protests against the government

that demand for political change (Kheang, 2004: 271 & 273).

Many scholars support the argument that the existing poor socioeconomic

condition is a major obstacle that limits the public participation in the political process of

the country. The extreme poverty limits their interest in politics, and in if they participate,

it is more for gaining the material benefits, than to support the political system for

promoting common interest of common masses. Addressing the issue of lack of

participation of private sector or business man is that they fear that they might be

perceived as pro-opposition or anti- CPP. This is why the private business men stay away

from engaging in electoral politics. 26

Despite the hardships faced by the government, the NOOs continue to challenge

the government directly or indirectly.

NGOs for Rule of Law

On 5 May 2006, over 50 representatives of local and international Human Rights

NOOs with the support of ADHOC, launched a report prepared by the International

Federation for Human Rights (FIDH). The report focused on the implementation of the

Statute of the International Criminal Court (ICC), which was ratified by Cambodia on 11

April 200227, to try the leaders of Khmer Rouge for carrying out genocide during their

regime (1975-1978). .

The FIDH and the CHRAC recall that the Statute of the ICC requires Cambodia

to impleinent two main tyPes of obligation. Firstly, Cambodia needs to adapt the

necessary provisions to fulfill its obligation of cooperation with the Court. Secondly,

26 Sorpong Poeu, International Assistance for Institution Building in Post-Conflict in Cambodia, Working Paper 26, Netherlands Institute ofIntelJlational Relations, May 2004, p. 31.

27 "Recommendations to set essential standards for prosecution of the Khmer Rouge and for the rule of law in the future", FIDH at http://www.fidh.org.

168

\

Cambodia must introduce crimes within the jurisdiction of the ICC and genera} principles

of criminal law into domestic law in order to be able to try the perpetrators of genocide,

crimes against humanity and war crimes. The ICC can only try such crimes if Cambodian

courts are unwilling or unable to investigate or prosecute alleged perpetrators; the

primary responsibility rests within the national COurtS.28

•

The FIDH along with ADHOC and LICADHO launched a technical assistance

mission composed of two Cambodian consultants on the implementation of the ICC

Statute in Cambodian law in 2005. They argued that "new set of rules should guarantee

that essential standards of criminal justice will be applied in trials of the Khmer Rouge.

Should the ECCC start functioning before the adoption of the draft code of criminal

procedure, FIDH and CHRAC urge the judges of the ECCC to incorporate the relevant

provisions of the draft code in the core of its internal rules". They further argued that

victims of Khmer Rouge atrocities should be guaranteed effective access to independent

and impartial courts. 29

Cambodian Human Rights Action Committee( CHRAC) is an important NGO

that deals with the keys issues that need immediate action to address the problem of ----•....

problems of poverty, corruption, human trafficking and so on. It aims to create a peaceful

environment which promotes democracy, human rights and rule of law.

Emphasizing on the need of promoting democracy, human rights and rule of law,

Dr. Kek Galabru, president of LICADHO of provided an analysis of the state institutions - - --_._-- -.,- ..... .

of the which follows. According to him, there are number of institutions ----.

established in Cani-Lbo::-:at::ia:C:-:tolmplement the rule of law. However, they are unable to bring

about serious reforms in the society, due to a number of reasons, which need to be ,.-- -, ...

addresses. He proposes solutions that can be useful in improving the institutional set up

in the country.

~8 Ibid.

19 Ibid.

169

a) Lack of independence- legislative and executive branches need to have a clear

division of powers to avoid arbitrary exercise of power.

b) Lack of security of the members: Members should not be threatened by arbitrary and

political removal, and be appointed by an independent Selecting Committee (SC)

composed of representatives of the parties having the seats in the National Assembly

and the same number of representatives from genuine NOOs working for the rule of

law. Selection criteria of the members should be transparent and subject the public.

They should be free from political influence, manage their own funds and appoint

their own staff.

c) Lack of proper Mandate: The role of all the members need to be stated clearly in

the law. They should have immunity from arrest and prosecution during the exercise

of their duty. '"If a member is to be sanctioned, it must be with the approval of 2/3 of .

. . the national assembly Sanctions and procedures for disciplin31), action against

members who abuse their position of power or who do not carry out their mandate in

good faith should be clearly set out in law and enforced. Disciplinary action should be

transparent and public" (Galabru, 2004).

d) Lack of Adequate resources: Provisions should be made by law to provide

adequate resources to meet the targets set by the institutions mandate. Moreover, the

funds must be allocated by the legislative, not the executive branch to ensure

accountability to the people. The institutions should not face the problem of being

under staff.

e) Lack of Accountability: All the procedures of various institutions should be

legitimate, transparent, subject to evaluation by the parliament and civil society .

•

170

The Supreme Council of the Magistracy (SCM)

Scholars argue that a competent and unbiased judiciary is essential to providing

justice to victims of civil wrongdoing, crime and human rights abuse. The role of the

SCM is clearly chalked out in Cambodian constitution. It requests the King to appoint

judges and prosecutors and takes disciplinary action against judges and prosecutors if

necessary.

Like many other s.;holars, observers and Human rights activists, Galabru, argues

that although the constitution defines the role of SCM, its implementation is weak for that

fact that this institution lacks independence and competence.

The SCM has 9 members:

.

Three' judges should be elected by all judges but instead they were appointed by the ruling

party

One is the president of the Supreme Court

One is the president of the Appeal Court

One is the General Prosecutor of the Supreme Court

One is the General Prosecutor of the Appeal Court

One is the Justice Minister

One is the King chairs the meeting.

•

However, all these members are affiliated to the two main political parties.

There is also conflict of interest; all members continue to work in other

capacities as judges, prosecutors or as the minister of justice. The •

constitution states that the President or the General Prosecutor of the

Supreme Court will chair the Disciplinary Council. The King, is reluctant

to chair the sessions, and with only one exception, has appointed the •

171

President of Senate to do this duty. The President of the Senate is also

president of the ruling party - a clear conflict of interest. Similar to many

other institutions, it has no independent and no adequate budget (Galabru,

2004).

LICADHO makes number of recommendation to the SCM for its improvement:

a) Members should be elected according to transparent criteria by an independent

Selecting Committee.

b) The King should appoint a independent, non-partisan individual to replace him,

not the President of Senate

c) All members should be apolitical, selected among the judges, prosecutors, • --

lawyers, scholars or NGOs with high education and long experience.

d) Members should not hold any other position, which would be a conflict of

interest, should have security of tenure, and should have immunity and good

salary to avoid corruption

e) The Secretary General should not be member of the SCM, should be non-partisan,

with high education and be appointed by the King.

f) Members should hold only one tetln and after that be prevented from accepting -

at least for three years - important positions in the party or in the government.

g) It should have financial resource adequate for its functioning which is allocated

by the National Assembly.

h) All procedures of appointment and sanction of judges and prosecutors should be

transparent and opened to public~

172

.-

i) Ministry of Justice which is an executive power, it should monitor the courts and ;#"'

be able to investigate the cases of corruption of courts and send the complain to

the SCM., finally ,...----.

-'--

j) It should have more than one Appeal court. 30

The Judges should:

a) have an education in law (school of magistrates).

b) not be affiliated to any political party. ,

c) be appointed by Royal decree on the recommendation of the SCM.

d) have security of tenure, physical security, good salary. -

e) not stay-in the same place for more than four years.

f)be monitored by the Ministry of Justice and people. Complaints should be sent

to the SCM for disciplinary action in conformity with the law.

g)Complaints against judges should be investigated by the SCM (disciplinary

council, chaired by the President of the Supreme Court)

h) receive promotions from the King on the recommendation of the SCM.

i)The National Assembly should adopt the statute of the magistrate.

There are recommendations for having a separate law for Prosecutors.

30 Visit L1CADHO'S official website to read its press releases. •

173

The Constitutional Council (CC)

" The Constitutional Council, was convened a month before the 1998 election to

interpret laws and mediate electoral disputes. 31 The duty of the CC to" ensure

Constitutional respect, and interpret the Constitution and the laws adopted by the

National Assembly and the Senate. It evaluates and makes decisions about the

procedures of election of Members of the National Assembly and the Senate.

The King, the Prime Minister, the President of the National Assembly or 1/10 of

its members and the President of Senate and ~ of it members can send the draft law _ ....... "_.". -- .

adopted by NA and Senate to the CC before it promulgation. The decision of the CC -." ,.-'

cannot be appealed.

The NOOs make some recommendations for making improvements in this body.

They recommend that the CC should be independent of any internal or external pressure

or influence. It is controlled by the ruling CPP. Many of its members are affiliate to this - ,','

party.

The procedures of appointment of members are criticized for the lack of

transparency. Moreover, the criteria for appointment are not clear. Six of the nine

members of CC were affiliated to the CPP. The King's three nominees had refused to ."

take their seats because the Council was not neutral. According to Human Rights Watch

Asia (1998), ''without a Council, there was no mechanism to dete) mine whether the

electoral and party laws were constitutional, and no avenue of appeal". Moreover, it "was

never the intention of the CPP to allow an independent and impartial election

commission. It sought from the start to control the entire apparatus ... and it certainly

achieved its objective,,32.

31 Sue Downie, Cambodia's 1998 Election: Understanding why it was not a 'Miracle on the Mekong', Australian Journal of International Affairs, Vol. 54, No.1, 2000, p. 8.

32 Cite in Sue Downie, p. 8 .

. -;::.:;..--174

The National Election Committee

NEC is considered to be the most important body that organizes elections in the

country. The government established the NEC, before the national election in 1998. NEC

was mandated to -

a) Organise, oversee and monitor the registration of voters, parties and

candidates,

b) Supervise the electoral campaign,

c) Organise polling and counting, and finally

d) Verify the accuracy of the vote count. 33

Provincial Electoral Commissions and Commune Electoral Commissions - !. . .

provided support to the NEe. However, it received criticism for being an agent of the

CPP. "National, provincial and communal Electoral Committees and Commissions are

basically creatures of [CPP]. Like the police, army, and the courts, they have little choice

but to operate according to the dictates of Hun Sen" (Heder noted: 1998: 6).34

The NEC and commissions were composed largely of people known to be

CPP officials or supporters, but complaints to this effect submitted to the .-

National Assembly were ignored by the pro-CPP parliament. Furtheunore,

the NEC was widely perceived by Cambodians and international observers

to be under CPP influence, and perhaps taking directions from senior CPP

personnel. This perception increased on the night of counting when NEC

officials called a news conference to announce preliminary results then

postponed for more than an hour, then refused to release results, leading to

speculation that the NEC figures were not the same as CPP's and therefore

more time was needed to reconcile the figures. In addition, FUNCINPEC

33 Cited in Sue Downie, Cambodia's 1998 Election: Understanding why. it was not a 'Miracle on the -Mekong' , Australian Journal of International Affairs, Vol. 54, No.1, 2000, p. 8.

34 Ibid.

175

•

argued, but was not able to prove, that instructions were sent from CPP

operatives to certain (named) counting stations at around 11 :00 a.m. on the

first day of counting (Galabru).

It has been crticised by number of observers and scholars for ignoring the

irregularities and violence during the elections, and for its affiliations with the main

political parties. NEC is independent body. However, the interior co-ministers appoint

five of its members. There are recommendations that the NEC needs to be engrained in

the Constitution. It should be independent, transparent in the appointments and with

credible members.

Furthennore, the NGOs make some recommendations pertaining to the role,

structure and accountability of the state institutions.

Commissions should be written into the Constitution and should then be

established as soon as possible. These commissions should include an

Anti-Corruption Commission, and a National Human Rights Commission,

with the same criteria as the others commissions, that is, it should be

independent, non partisan, competent and credible. A National Congress

must be created soon to fulfill the promise laid out in Chapter XII of the

Constitution. Namely by enabling '"the people to be directly infonned on ••

various matters of national interests and to raise issues and requests for the

state authority to solve" an effective National Congress will support the

strengthening of politics at all level of society and improve public

participation within the political life of the country (Galabru, 2004).

Laws also need to be developed to regulate key institutions like a statute

of Magistrates (ensuring that all judges are non-partisan) and a statute of

prosecutors. The statute of the Armed Forces and the statute of Civil

Servants should be amended to ensure that the armed forces and civil

service are depoliticized. The Police Act must also ensure that the police

176

are non-partisan. Law also need to be passed to deal with specific critical

problems, which continue to plague Cambodia including an Anti-•

Corruption law (with declaration of the assets which ensure that all

members of the government declare their assets before taking office), an

Anti-Trafficking law and a Domestic Violence law. In order to insure a

more transparent political situation, law need to be developed to regulate

the financial management of political parties (Galabru, 2004).

An amendment should be made to article 98 of the Constitution allowing

for the dismissal of members of the Royal Government if they do not

respond to the requests of the members of the National Assembly, for

explanations and clarifications as described in articles 96 and 97 of the

Constitution. The law should provide that if members do not respond three • -

times, they would automatically be dismissed. An amendment should also

be made to change the electoral system from proportional representation to

direct representation (Galabru, 2004).

Finally, the executive, legislative and judiciary, aImed forces, local authorities,

civil servant, civil society and general population should be provided regular trainings to .-

update them on the important laws. There are evidences that with the intervention and the

assistance from these NGOs, the victims have received more attention from the court and

the police. Therefore, it is clear that these organizations play an important role in

protecting human rights of Cambodians.

Separation of Powers in Party and State

Downie asserts that the administration, military, judiciary and media were

affiliated with the political parties, the CPP and the FUNCINPEC, Rainsy and the

remnants of BLDP. Even, all ranking civil servants, "answer to party bosses rather than

177

,

their administrative chiefs, the state-run media is CPP-run, and certain units of the

military serve the party of their origin rather than the state" (Downie, 2000:54).

According to Hay, "public interest evident in the lead-up to the election, when

civil servants were campaigning rather than administering, and after the election, when

those who had campaigned for a party other than CPP feared they would lose their

public-service jobs. CPP officials whose districts did not do well also feared losing their

administrative positions." 35

There are number of scholars who argue that lack of separation of powers

between executive and judiciary remains one of the most pressing problems, which is

delaying the process of consolidation of democracy in Cambodia. Downie, by giving the

references of the work of Mark and Fernando, states that judges in Cambodia were

unaware of the concept of "independence of judiciary", and it was required to make

refonlls in the judiciary. Unfortunately, since 1993, the political elites have shown no

interest 10 separate the power of three branches of the government. Hay noted that "most

judges were appointed during the SOC/CPP period and most were appointed more on the

basis of their political loyalty to CPP than on merit" (Downie, 2000:54-55).

Downie points out that the current leaders are reluctant to abandon the practice of

patron patron-client networks as well as their control of aJ illS of the states. The leaders .' are unable to forget the legacies of their Leninist origins, and victors' justice, which, has

become deeply entrenched in the country. Cam1:>odia. Some scholars like Marks argued • ___ .•• ,.",,"U' -

that until the salaries and training of the judges and prosecutors were increased, there is

no hope of bringing reforms and keeping it away from the political influence. "Until

conditions for an independent judiciary are met, impunity for protected people in the

system of patronage of Cambodia is likely to continue" (2004:55).

35 Cited in Downie, 2001, pp. 12-13

178

Role of International community

•

ODA, United States Agency for International Development (USAID), Australian

Government-AUSAID, The European Union (EU)/European Commission (EC), United

Nations Development Program (UNDP), the World Bank and the Asian Development

Bank (ADB) and the Intemational Monetary Fund (IMF), are the major International

donors for Cambodia. These institutions, in addition to providing financial assistance, are

strongly committed to promote democracy in the country. and improve good governance

in Cambodia. The international donors "create strong political pressure to keep the

Cambodian government on the right path of building democracy according to the Paris

Peace Accord in 1991". 36

The international donors have assisted the government to make refonns in major

sectors such as the land management, public finance and military ref 01 ms. It is due to - •

their assistance, the-people of Cambodia are becoming aware of their rights, and are

starting to criticize the government for not serving their common interests. With the help

of international organizations and the NGOs, people talk about the serious issues such as

corruption, rule of law and human rights openly People have dared to speak out about

COli upt practices and they have brought these issues into the mainstream of politics and

society.37

Many critics of International aid donors, International NGOs, and Local NGOs,

blame these organisations for promoting their own agendas by helping Cambodia.

However, there are evidences to prove that they have helped the nation building a

democracy, promoting a stable economy, and advancing education. "USAID, AusAIDS,

EC (France), and the Japanese ODA have improved democracy, rule of law and good

governance, and promoted success in the country. One of the best approaches for

36 Tooch Van, 2004, pp. 15-16.

37 Ibid.

179

.'

achieving their goals is providing funding to NGOs working both in urban and rural areas

of Cambodia". 38

The funds received from these institutions are used by the NOOs to work directly

at the grassroots level to encourage the building of local democratic institutions and good

governance. In addition to this, the multilateral donors (World Bank, the ADB, the IMF

and UNDP) have worked with the government and NOO community·to reduce poverty,

promote development as well as build democracy and good governance. 39

Where the international financial institutions and community, INOOs, and NGOs

are appreciated for assisting Cambodia in sustaining and promoting democracy in

Cambodia, there are some scholars, who blame these institutions/organization for -= .... ~".-•· ... c~_, ___ .,

promoting their own agendas. They believe that the democracy of the country is

surviving at the mercy of international aid.

According to Kao Kim Houm, "Cambodians have become familiar with the

culture of international development and know what (donors) want to hear." This is still a

big issue in Cambodia; there are not many NGOs that are willing to fight for their own

principles, because the funding is one of the aspects of their survival as an institution".4o

•

38 Ibid. p. 48.

39 Ibid.

40 Ibid. p. 55.

180

Kheang asserts that NGOs have brought about significant change by introducing

basic concepts such as human rights and the rule of law. However, "CNGOs, lack many

of the characteristics of liberal civil society organizations in other settings". The state is

blamed for limiting their political space and their ability to promote the efforts of

consolidation of democracy.

"Factors endogenous to these organizations also obstruct these organizations'

ability to serve effectively as agents of democratic promotion. These factors are a lack of

democracy within the NGOs, dependence upon foreign funding, a lac.k of membership

and the adherence to a non-confrontational stance vis-ii-vis the state." (Kheang, 2004:

285).

Finally, given the current dilapidated social, economic and political condition of

Cambodian, there is an urgent need to strengthen the existing state institutions and uphold .J .•

the rule oflaw. The irony of the situation is that the elites of the country are proved to the --.--- - ." -

major detenninant, preventing any development in this direction. They lack interests in

promoting democratic nonns. This is why, the scholars exhort that the country need to

empower the civil that can generate: political involvement, democratic nonns, and most

importantly act as a force against the corrupt and centralised government the state. The .. - -.-, "'_.,,, -. -

only way to bring political refonns and consolidate democracy is through the existence of

civil society that is aware of its surroundings. NGOs are the most important tool that

builds the bridge between public and the states, and promote social and political change.

181