Cambodia's Institutions Must Be Empowered

By LAO MONG HAY
Column: Rule by Fear
Published: June 18, 2008

Hong Kong, China — Since 1993 the international community has been assisting Cambodia in establishing parliamentary democracy and rule of law, as well as the administrative machinery of government. Fifteen years later, the infrastructure is physically present but is so wracked by corruption that it is largely dysfunctional.

The system cannot secure the constitutional rights of the Cambodian people. The law is not predictable. As a result the people have very little trust in the established system.

These institutions remain subject to the control inherited from pre-1993 communist days, and are utilized to serve the interests of the ruling class rather than those of the people. Although Cambodia has held periodic elections, and preparations for the forthcoming election are underway, its multi-party, liberal democracy has little substance.

First of all, there is no separation of powers among the three branches of government. The idea of checks and balances is entirely absent. The Parliament is overwhelmingly dominated by the ruling Cambodian People’s Party, a former communist party, and is unable to hold the government accountable for its decisions and activities. Its main function seems to be to rubber stamp the government’s wishes into law.

The judiciary is also under executive control, as most judges and prosecutors belong to the ruling party. Other supposedly independent institutions such as the Constitutional Council and the Supreme Council of the Magistracy, the judicial body responsible for the appointment and discipline of judges and prosecutors, are all peopled, from top to bottom, by members of the ruling party. And all CCP members are subject to the strict discipline of the party.

Such extensive and tight control has inevitably enabled Prime Minister Hun Sen, already acknowledged as "the strongman of Cambodia," to become even more unchallengeable. Through the party machinery, he controls all those institutions and rules the country with scant regard for the rule of law.

Sen has, for instance, ordered the retrial of accused persons already acquitted by the courts, accusing judges and prosecutors of corruption. He has ordered the arrest of critics or has threatened them with jail sentences, or killed their personalities through public name-calling. He has halted the execution of court judgments or affected these judgments through his "notification letters."

Over the last few years Hun Sen has used his personal power to address the hot issue of land grabbing, which has affected the livelihood of many Cambodians. This issue has arisen out of numerous land disputes between the rich and powerful and the weaker poor.

Sen has recently revealed that he wants to resolve all these disputes “outside the justice system.” In 2006 he created a national authority to resolve land disputes, ignoring the legal jurisdiction of the courts of law and the cadastral commissions created specifically for the purpose under the land law of 2001. A year later, he waged a "war against land grabbers," identified as officials of his party and other “people in power.” Last March he went to a piece of disputed land and, in the midst of the evicted families, took the land from the grabbing company and gave it back to those victims.

Because of his power and his past direct intervention, the people view Hun Sen as the only person in the country who can help the victims of land grabbing, as they lose trust in the courts and other authorities. Over recent months, many have been flocking to his residence on the outskirts of Phnom Penh to petition him for help.

On May 23 some 200 people from the Battambang province journeyed on foot and by car to petition Sen at his residence. The representatives of 265 families in Koh Kong province arrived on June 9, and over 200 people from four different provinces of the country arrived four days later.

Still, Hun Sen’s direct intervention has made little headway. He simply cannot meet all those people’s demands. Some marchers from Battambang province still wait in Phnom Penh after handing in their petition to his office. One desperate marcher declared that if Samdech Hun Sen did not resolve her land dispute and the land dispute adjudicating authorities did not do it either, her group would buy all law books and burn them in front of the Ministry of Justice in Phnom Penh. There is still a big backlog of cases and new ones keep arising.

Hun Sen has not used his power to empower the state institutions and administrative machinery, which lie under his firm control, for public interest. Thus adjudication of land disputes is personally directed toward him. He should exercise his power, not through direct intervention, but to create a more efficient infrastructure so that the existing institutions are able to capture the people’s trust and serve the public interest.

Jean Monet, widely known as the founding father of the European Union, said, “Nothing is possible without men; nothing is lasting without institutions.” Monet’s dictum is very much relevant to the establishment of well-functioning institutions for parliamentary democracy and the rule of law to serve the Cambodian people and not simply the ruling class.

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(Lao Mong Hay is a senior researcher at the Asian Human Rights Commission in Hong Kong. He was previously director of the Khmer Institute of Democracy in Phnom Penh, Cambodia, and a visiting professor at the University of Toronto in 2003. In 1997, he received an award from Human Rights Watch and the Nansen Medal in 2000 from the United Nations High Commissioner for Refugees.)

Labels: Corruption, LAO MONG HAY

Delivery of Anti-corruption petition (Photo: AP)

Hong Kong, China — On May 16, 2006, a petition with over 1 million signatures and thumbprints was presented to the National Assembly in Phnom Penh, Cambodia, calling on the assembly to urgently enact an anti-corruption law. The sheer number of people –one out of every 14 Cambodians – who supported the petition campaign with their signature or thumbprint in a period of just over five months, revealed the gravity of corruption in the country and the urgent need for government leaders and lawmakers to take action.

Corruption in Cambodia was already rife, affecting every walk of life, toward the end of the communist regime in the late 1980s. It was and still is prevalent in every public institution everywhere and at every level: in schools, hospitals, fire services, the police, the army, the civil service, the judiciary, the government and the Parliament. It has also ravaged foreign aid given to the country.

In the early 1990s when the communist regime ended, the public called on the government to tackle the problem. In the mid-1990s, civil society began to organize seminars to highlight the issue and urge the government to enact an anti-corruption law. Many national seminars were held, at times presided over by prime ministers or their colleagues, not to mention many smaller meetings.

There were study tours for concerned senior government officials and lawmakers to countries in the region, including Singapore and Hong Kong, both of which are renowned for their effective anti-corruption laws and agencies. In 1998, the newly elected government promised to fight corruption and enact a law against it.

For their part, international donors began to feel the gravity of corruption and its negative impact on the aid they had given to Cambodia, to the tune of some US$500 million a year since the early 1990s. In 2002, together with the Cambodian government, they made the fight against corruption and the enactment of an anti-corruption law one of the benchmarks for the flow of aid.

Under such pressure the government finally submitted to the National Assembly an anti-corruption bill – which had been drafted and redrafted many times, well before the adoption of the U.N. Convention against Corruption in 2003.

Shortly after, this bill was withdrawn, to be redrafted again to bring it up to the convention’s standards. Meanwhile, deadlines set for the enactment of that law have repeatedly passed and the final draft has not yet seen the light of day.

In parallel with the pressure on the government to enact an anti-corruption law, successive studies were undertaken to look into corruption in Cambodia. A 2004 study conducted by the U.S. Agency for International Development in Cambodia showed that corruption cost the government between US$300 million and $500 million in revenue every year, an enormous sum for a poor country.

Another survey conducted two years later by the Economic Institute of Cambodia in Phnom Penh showed that in 2005 the private sector paid “unofficial fees”—that is, bribes – to public officials amounting to US$330 million, an amount it said was “2.5 times higher than that of official payment” and “represented also about 50 percent of the total government budget revenue in 2005.”

A more recent survey conducted by Transparency International showed that 72 percent of Cambodians reported paying a bribe to receive a public service in 2007, a percentage which was then the highest in the Asia-Pacific region and second only to Cameroon (79 percent) internationally. The same survey also showed that the judiciary and the police were viewed as the most corrupt institutions in the country. It should be added that in 2007 Cambodia ranked 162 out 179 countries in the TI Corruption Perceptions Index.

Corruption has affected not only the Cambodian people but also foreign donors on whom Cambodia very much depends. In 1999 there was a corruption scandal at the Cambodian Mine Action Center, an internationally funded government landmine clearance organization. That scandal led to the suspension of foreign aid to CMAC for some time.

In 2003, the World Bank discovered the misuse of funds in a project to demobilize 30,000 soldiers, and forced the Cambodian government to repay the missing money. In 2004, the World Food Program found that US$1.2 million of its aid had gone missing, and forced the Cambodian government to make up for it. In 2006, the World Bank discovered fraud and corruption in three of the projects it was funding. It suspended its funding for these three projects and requested the Cambodian government to make prompt repayment of the missing funds.

In early 2007, within six months after its creation, the internationally funded Khmer Rouge Tribunal encountered allegations of corruption in its human resource management. These allegations led to the introduction of corrective measures for better management.

These are a few of the cases known to the public and acknowledged by the government. Yet in all corruption cases very few, if any, suspected government officials have been brought to justice and made accountable for their corruption. Generally, they have simply been disciplined and removed from office and then, when their cases are no longer in the public mind, they have been reappointed to other, sometimes higher, positions.

Enacting an anti-corruption law and setting up an anti-corruption body may not end what is a common practice in Cambodia. It is nevertheless a significant step toward that end. The Cambodian government must not let its officials indulge in corruption with impunity. It must not continue to break its promises to its people and its foreign donors. It must heed the petition presented to the National Assembly and submit the long promised anti-corruption bill for adoption without further delay.
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(Lao Mong Hay is a senior researcher at the Asian Human Rights Commission in Hong Kong. He was previously director of the Khmer Institute of Democracy in Phnom Penh, Cambodia, and a visiting professor at the University of Toronto in 2003. In 1997, he received an award from Human Rights Watch and the Nansen Medal in 2000 from the United Nations High Commissioner for Refugees.)

Labels: Anti-corruption law, LAO MONG HAY

It is widely known that courts in Cambodia are politically controlled and almost all judges and prosecutors belong to the CPP, the ruling party. The president of the Supreme Court, or chief justice, is a member of the party's standing and central committees.

Labels: Election, LAO MONG HAY

Labels: April 17 1975, LAO MONG HAY

Labels: CPP, eviction, hun sen, landgrabbing, LAO MONG HAY

Lao Mong Hay is currently a senior researcher at the
Asian Human Rights Commission in Hong Kong. He was previously
director of the Khmer Institute of Democracy in Phnom Penh,
Cambodia, and a visiting professor at the University of
Toronto in 2003. In 1997, he received an award from
Human Rights Watch and the Nansen Medal in 2000 from the
United Nations High Commissioner for Refugees.

Labels: Khmer Rouge Tribunal, LAO MONG HAY, No immunity for Sihanouk, Samdech Preah Norodom Sihanouk

Labels: Kob Srov, LAO MONG HAY, Long Chhin