Overview of the Cambodian History, Governance and Legal Sources
By Jennifer Holligan and Tarik Abdulhak
Jennifer Holligan is a Scottish lawyer currently working as a Legal Associate for Access to Justice Asia. She is based in Phnom Penh and is a member of a legal team representing victims before the Extraordinary Chambers in the Courts of Cambodia.
Tarik Abdulhak is an Australian lawyer, currently working as
a Senior Assistant Prosecutor at the Extraordinary Chambers in the Courts of
Published April 2011
Table of Contents
The exact origins of the Khmer people, the majority ethnic group inhabiting present-day Cambodia, are the subject of some debate among historians, one view being that the pre-historic inhabitants of the region migrated from China, and the other that they in fact came from India. In any event, starting around 2,000 years ago, the inhabitants of the region were subject to important religious, cultural and political influences of India. The Khmer people developed an alphabet based on the Pallava script of India, adopted the Hindu religion (today most Khmers are Theravada Buddhists), and benefited from Indian advances in science, engineering and architecture. The most famous example of the impact of these influences on the Khmer architecture is Angkor Wat, the “city-temple” located in the ancient Khmer kingdom’s capital (near today’s Siem Reap), and built during the reign of the emperor Suryavarman II in the 12th century AD.
The Angkor Wat and dozens of other temples and buildings that surround it stand as historical monuments to the great Khmer empire whose existence extended from the early 9th century to the middle of the 15th century. At various stages of the period, this was South East Asia’s most powerful kingdom. However, for reasons that are still not fully understood, from the 15th century the Khmers abandoned Angkor and migrated southward, establishing a new capital at Udong, 40 kilometres north of Phnom Penh. While data on the ensuing period is limited, available records indicate that Cambodia experienced a period of gradual decline. Located at the juncture of two major spheres of cultural influence – that of Theravada Buddhism to the West (predominant in Thailand) and the Vietnamese empire to the East – the Khmer kingdom eventually saw its sovereignty undermined by its dominant neighbours. Over the seventeenth and eighteenth centuries, the country experienced civil wars, while Thai and Vietnamese kingdoms took turns in invading it. The Vietnamese instituted a program of Vietnamisation of Cambodia in the early 19th century, which ended in 1841 and was followed by a short period of relative independence under Thai influence.
In 1863, Cambodia’s King Norodom signed an agreement with the French to establish a protectorate over his kingdom, which led to Cambodia becoming a French colony. The Japanese occupied Cambodia from 1941 to 1945 and the French sought to re-assert their control after the end of World War II. Cambodia’s first written constitution was promulgated in 1947. Under this constitution, the country was governed by the King and two houses of parliament.
The colonial era ended when Cambodia declared its independence on 9 November 1953, following King Norodom Sihanouk’s negotiations with the French. In March 1955, the King abdicated in favour of his father, Norodom Suramarit, and formed Sangkum Reastr Niyum (“People’s Socialist Community”), a political party, which won an overwhelming victory in the national elections, held in September 1955. In 1960, following his father’s death, Norodom Sihanouk again became the head of state (this time with the title of Prince).
A key 20th century development was the rise of the Cambodian communist movement, which had its origins in the Indochinese Communist Party, formed in Vietnam in 1930. In 1951 a Cambodian branch was formed. While the party’s internal structure and name underwent a number of changes over the years, the party eventually adopted the name Communist Party of Kampuchea (CPK). Internationally, members of the CPK became known as the Khmer Rouge, a label given to them by Norodom Sihanouk. The Party’s leadership included several young people who had studied in France on Cambodian scholarships during the 1950s. A member of this group was Saloth Sar, who would rise to become the CPK leader and come to be known throughout the world under his revolutionary name, Pol Pot. Especially from the 1960s onward, the communists became engaged in a struggle of increasing intensity against Sihanouk’s regime. They adopted a policy of revolutionary violence designed to bring down those whom they saw as feudalists, capitalists and reactionaries.
In 1963, the leadership of the CPK went underground and withdrew from the capital to coordinate an insurgency from the countryside. At the end of the decade, Prince Sihanouk’s own fortunes changed. In March 1970, his Prime Minister Lon Nol convened the National Assembly, which voted to remove the Prince as the head of state. In 1972, a new state, the Khmer Republic, came into being. The regime, which enjoyed the support of the United States of America, would pursue disastrous military campaigns against Vietnamese communist forces on Cambodian soil. It also fought a bloody civil war against the CPK and its supporters.
Angered by American bombing of the Cambodian countryside, and responding to a call from Norodom Sihanouk (who brokered a deal with the CPK following his removal from power), thousands of young Cambodians joined CPK forces in the war against the Khmer Republic regime. The civil war ended on 17 April 1975 when the victorious communist forces entered Phnom Penh.
From April 1975 to January 1979, the CPK presided over the most tragic phase of Cambodia’s history. Immediately upon taking power, the new authorities forcibly evacuated the urban centres, and enslaved the entire population in CPK-run rural cooperatives and construction sites, effectively turning the entire country into a massive prison.
In January 1976, the CPK established Democratic Kampuchea (DK), a state in which virtually all vestiges of Cambodia’s centuries-old social order were abolished. Among other things, the authorities broke up families, prohibited religion, closed down markets, schools and universities, abolished all human rights and civil liberties, and persecuted (and eventually sought to annihilate) the Vietnamese and Cham minority groups. Cambodians were subjected to constant psychological abuse through indoctrination and monitoring by CPK cadres. The regime put in place a countrywide network of security centres in which hundreds of thousands of suspected “traitors” and perceived enemies were systematically imprisoned, tortured and executed. It is estimated that nearly two million people – or one in four Cambodians – died as a result of starvation, illness and execution over the 3 years, 8 months and 20 days that the CPK governed Cambodia. This shocking death toll was the direct result of the regime’s policies whose implementation was centrally coordinated.
Throughout this period, CPK / DK forces were engaged in an armed conflict with the Socialist Republic of Vietnam (SRV), fueled by a series of factors, including a territorial dispute between the communist neighbours. In December 1978, SRV forces mounted a massive invasion with the support of Cambodians who had fled DK rule. They entered Phnom Penh on 7 January 1979, liberating Cambodia from CPK’s reign.
As the CPK leadership and its followers fled Phnom Penh, a new state, the People’s Republic of Kampuchea (PRK), was established with Vietnamese support. Tragically, however, the toppling of the DK regime did not mark an end to warfare and humanitarian strife in Cambodia. Operating from camps in the country’s remote regions bordering Thailand, the CPK formed a coalition with other political movements opposed to the Phnom Penh regime, re-constituted its armed forces, and fought a civil war against the PRK (and its successor regimes, the State of Cambodia and the Kingdom of Cambodia) well into the 1990s.
Following protracted negotiations between several Cambodian political factions, the Agreements on the Comprehensive Political Settlement of the Cambodia Conflict (known as the Paris Peace Agreements) were signed on 23 October 1991. The United Nations Security Council was invited to establish the United Nations Transitional Authority in Cambodia (UNTAC), which would oversee the implementation of the Agreements, temporarily run the country’s administration, and coordinate free elections and a restoration of law and order. One of the largest missions in United Nations’ (UN) history, UNTAC exercised supervision over various aspects of Cambodia’s government, including information, finance, foreign affairs and security, and was to disarm the various fighting factions. It failed to disarm the CPK forces, however, which allowed them to continue their military campaigns, and in fact make territorial gains as the civil war wore on.
Despite attempts by the Khmer Rouge to block them, national elections were held in 1993, leading to the formation of a coalition government led by Prince Ranariddh (son of Norodom Sihanouk) and Hun Sen as First and Second Prime Ministers respectively. Following its adoption by the new parliamentary assembly, a new constitution was promulgated on 24 September 1993, establishing the Kingdom of Cambodia, a constitutional monarchy with a democratic, multiparty political system. Prince Norodom Sihanouk was again elevated to the status of King and resumed his position as Cambodia’s head of state. He abdicated in 2004, and was replaced by his son, Norodom Sihamoni, Cambodia’s current King.
Cambodia’s legal system, which is primarily based on the French civil law tradition, suffered significant setbacks as a result of CPK policies during the 1975 - 1979 period. In setting up the state of Democratic Kampuchea, the CPK abolished virtually all institutions existing under Cambodia’s previous regimes, including the courts. Although DK’s constitution provided for the establishment of “people’s courts,” no judicial institutions were in fact established, and no laws were ever enacted. In place of a legal system, the CPK instituted a centralised dictatorship, which exercised absolute power over the country and governed every aspect of its citizens’ lives. As noted above, dissidents were dealt with through the regime’s network of security centres. As intellectuals were among those targeted by the regime for elimination, Cambodia lost the majority of its legal professionals in this period. Re-established following the toppling of the DK regime, the country’s legal institutions are still in a process of transition.
An important development to provide accountability for atrocities committed during the DK regime was the establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in early 2006. This internationalised criminal tribunal was created in accordance with an agreement between the United Nations and the Royal Government of Cambodia to bring to trial senior leaders of DK and those most responsible for the crimes that took place during the period. More information on the ECCC is provided further below.
Under the 1993 constitution, Cambodia is a constitutional monarchy with the King as its head of state. The King represents a symbol of unity and eternity of the nation. The Head of Government is an elected Prime Minister. Legislative power is vested in a bicameral parliament, while the judicial power is exercised by a constitutionally independent judiciary.
The territory of Cambodia comprises 24 provinces (rural) and municipalities (urban) with a total of 185 districts, 1621 communes and 13,694 villages. The 24 provincial and municipal administrations are appointed by the central government and are a part of the Ministry of Interior. The 2001 Law on the Election of the Commune/Sangkat Councils provides for elections of commune level councils. The first such elections were held in February 2002.
In addition to providing for a separation of executive, judicial and legislative powers, the constitution guarantees respect for citizens’ fundamental rights contained in the Universal Declaration of Human Rights and other international human rights instruments. Numerous of these rights are expressly set out in the constitution, and they include the right to life, the right to freedom of expression and association, the right to peaceful protest, and the protection of legal ownership. The constitution obligates the state to respect the rights of children and prohibits all forms of discrimination against women. It also sets out due process protections such as the presumption of innocence and equality before the law. Capital punishment is prohibited.
Cambodia’s Constitutional Council is responsible for providing interpretations of the Constitution and deciding on disputes relating to the election of members of the National Assembly and Senate. A request for a review of the constitutionality of any law may be made by, among others, the Kink, the Prime Minister, one quarter of the Senators or one tenth of the members of the National Assembly.
The constitution preserves the validity of previously enacted legislation to the extent that the latter is not inconsistent with the constitution itself. Cambodia’s legal system therefore comprises legislation enacted under past administrations, as well as more recent laws, which have been adopted since 1993 to support the emerging market-based economy. A new Code of Criminal Procedure was enacted in 2002, and a new Penal Code entered into force in December 2010.
Cambodia's executive government is formed by the party who acquires the greatest number of seats in the National Assembly at election. The Prime Minister, who is a member of the Assembly, is appointed by the King on the recommendation of the President and Vice Presidents of the National Assembly. Upon entry into office, the Prime Minister appoints a Council of Ministers. The current Prime Minister is Cambodia People Party’s (CPP) Hun Sen.
The Senate is the upper house of the Cambodian legislature and has 61 members. Two of these are appointed by the King, two are elected by the lower house of Parliament, and the remaining fifty-seven are elected through non-universal elections, by commune councilors throughout the country and members of the National Assembly. Members of the Senate serve six-year terms, and the first elections were held in 2006. The CPP holds forty 43 in the Senate. The two other major parties holding seats in the Senate are (12 seats) and the (two seats). The next elections for the Senate are due to take place in January 2012.
The National Assembly
The National Assembly consists of 123 members who serve five-year terms upon election. The President and two Vice Presidents of the Assembly are elected by the members. As of 2009, the holds 90 out of the 123 seats. The holds 26 seats.
Following the toppling of the DK in 1979, people's revolutionary courts were established on an ad hoc basis by the PRK regime. Establishment of a more institutionalised system did not take place until 1982 when a law providing for the organisation of courts and the Office of the Public Prosecutor was promulgated. Under this law, a network of courts was extended to each province and municipality and the People’s Supreme Court was created as the highest court of the land. The arrival of UNTAC in 1992 brought further important changes to the judicial system in Cambodia, including the creation of an Appeal Court. This resulted in a three-tiered court system, consisting of courts of first instance (municipal, provincial or military courts), the Appeal Court and the Supreme Court. As noted above, the 1993 constitution provides for the independence of the judiciary from the executive and the legislature.
The territorial jurisdiction of provincial and municipal courts covers their respective provinces and municipalities, while the military court has jurisdiction over the entire country. Judgments of these courts of first instance can be appealed on questions of fact and law to the Appeal Court. The Supreme Court generally adjudicates only questions of law on appeal from the Appeal Court.
A Supreme Council of Magistracy has been established in accordance with the 1993 constitution. Chaired by the King, the Council is responsible for the appointment of judges and prosecutors at all levels, and for the adjudication of disciplinary actions against them. When dealing with disciplinary matters, the Council convenes under the chairmanship of the President of the Supreme Court (or, if the action is against a prosecutor, under the chairmanship of the General Prosecutor).
Although the Constitution guarantees the independence of the judiciary, concerns have been raised as to lingering systemic weaknesses within the judicial branch of government. These weaknesses, and their origins in the decades of armed conflict, were noted in a 28 January 2011 decision of the ECCC Trial Chamber dealing with a request for the disqualification of the Chamber’s presiding judge. A United Nations Special Rapporteur on the Situation of Human Rights in Cambodia commented in a 17 June 2010 statement that: “a combination of a lack of adequate resources, organizational and institutional shortcomings, a lack of full awareness of the relevant human rights standards, and external interference, financial or otherwise, in the work of the judiciary, has resulted in an institution that does not command the confidence of people from many walks of life.” The Royal Government of Cambodia has made legal and judicial reform one of its stated priorities, and the establishment of the ECCC was a significant step in the process of building capacity within the domestic system.
On 21 June 1997, the Cambodian government requested the UN to assist in establishing a tribunal to prosecute those responsible for crimes committed during the DK period. In 2001, the National Assembly passed a law (“ECCC Law”) which provided for the establishment of the ECCC. An Agreement between the Cambodian Government and the UN (“the Agreement”) was signed in June 2003. The Agreement regulates the cooperation between the UN and the Royal Government of Cambodia, and deals with, among other matters, the ECCC’s jurisdiction, composition of its chambers, decision making and applicable penalties. In October 2004, amendments to the ECCC Law were enacted and approved by the Constitutional Council, and the Agreement was ratified. This led to the formal establishment of the ECCC in early 2006.
The ECCC is one of a handful of internationalised criminal tribunals established to process mass atrocity cases. It has a number of distinguishing features, which set it apart from international criminal tribunals for the former Yugoslavia, Rwanda and Sierra Leone. While formally a part of the Cambodian court system, the ECCC has its own separate jurisdiction, is independent of the Appeal and Supreme Court, applies international law, and is constituted by Chambers comprising national and international judges. The Co-Prosecutors’ Office is jointly led by an international prosecutor and a national prosecutor. While existing criminal procedure applies before the Court, if that procedure does not deal with a particular matter, or if there is a question regarding its consistency with international standards, guidance is sought in rules established at the international level.
The ECCC has jurisdiction over specific offences set out in the 1956 Cambodian Penal Code (murder, torture and religious persecution), as well as international crimes of genocide, crimes against humanity and grave breaches of the 1949 Geneva Conventions. The ECCC is the first internationalised criminal court, which uses the civil law criminal procedure with investigations carried out by an Office of the Co-Investigating Judges, and provisions allowing for participation of victims as civil parties.
As noted above, the ECCC’s personal jurisdiction extends to the senior leaders of Democratic Kampuchea and those most responsible for serious violations of Cambodian penal law, international law and custom during the DK period. Upon conviction, accused can be sentenced to imprisonment terms ranging from five years to life imprisonment.
Proceedings before the Court were set in motion on 18 July 2007 when the Co-Prosecutors filed an Introductory Submission (IS) requesting a judicial investigation into numerous alleged crimes, including the forced evacuations of urban centres, and the enslavement, imprisonment, torture and killings of civilians within security centres and mass forced labour sites. The IS identified five suspects - Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith, and Kaing Guek Eav (also known as “Duch”). Following the commencement of the judicial investigation, the Co-Investigating Judges ordered the arrests of the five suspects, and then separated the proceedings against Duch. This resulted in a separate investigation into Duch’s responsibility for the crimes that took place at S-21, the CPK/DK’s central and most important security centre, in which more than 14,000 men, women and children were imprisoned and executed. This became known as Case File 001, with the investigations against the other four suspects conducted as part of Case File 002.
Case File 001
The former director of S-21, Kaing Guek Eav, alias Duch, was arrested by the Cambodian authorities in 1999 and kept in military detention without trial until his transfer to the ECCC in 2007. His trial at the ECCC started in February 2009, and closing statements were delivered in November 2009. During the trial, the court heard extensive testimony from Duch, as well as 33 witnesses and 22 civil parties at public hearings, which were attended by approximately 28,000 visitors. On 26 July 2010, the Trial Chamber rendered its judgment, finding Duch guilty of persecution as a crime against humanity and grave breaches of the Geneva Conventions. The Chamber imposed a sentence of 30 years of imprisonment (after a five-year reduction as a remedy for Duch’s unlawful detention by the Cambodian authorities). Given that, at the time of judgment, he had already been detained for 11 years, Duch will serve another 19 years, subject to the outcome of the appeal proceedings, which were in progress at the time of writing (March 2011).
Both Duch and the Co-Prosecutors have appealed the Trial Chamber’s judgment before the ECCC Supreme Court Chamber. Duch’s defence team has argued on appeal that he was beyond the Court’s jurisdiction, and should be released. The prosecutors have argued, among other things, that the Trial Chamber committed an error by subsuming individual crimes (including murder and torture) under persecution as a crime against humanity, and by failing to sentence Duch to 40 years imprisonment as requested by the prosecution at the end of the trial.
Case File 002
On 15 September 2010, the Co-Investigating Judges indicted Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith for genocide, crimes against humanity, war crimes, and violations of the 1956 Cambodian Penal Code. The four accused, who have been in pre-trial detention since 2007, are the surviving senior members of the CPK and the DK government. Among the many positions they held, Nuon Chea was the Deputy Secretary of the CPK, Ieng Sary Minister for Foreign Affairs, Khieu Samphan the Chairman of the State Presidium, and Ieng Thirith the Minister for Social Affairs.
The four accused filed appeals against the indictment, which were largely rejected by the ECCC Pre-Trial Chamber, and the case was forwarded to the Trial Chamber on 14 January 2011. The trial is expected to commence in mid 2011.
Cases 003 and 004 are currently in the judicial investigation phase, which is confidential. They were the subject of proceedings before the Pre-Trial Chamber, which arose out of a disagreement between the National and International Co-Prosecutor as to whether to proceed with additional ISs. A public, redacted version of the Pre-Trial Chamber’s considerations issued on 18 August 2009 is available on the ECCC website (under Court Documents > Pre-Trial Chamber).
As in other countries with a continental legal system, legislation is the primary source of law in Cambodia. Other sources of law include the Constitution, custom, government decrees and regulations adopted under UNTAC, and human rights conventions ratified by Cambodia.
Under the 1993 constitution, the Cambodian government is required to recognise and respect the human rights set out in the covenants dealing with human rights, women’s rights and children’s rights. In 2007, the Constitutional Council issued a ruling stating that the law applicable before domestic courts is to include the constitution as the supreme law, and the international human rights treaties recognised by Cambodia.
Custom may influence the application of the law in Cambodia. One example of this is Article 23 of the Law on Contract, which stipulates that, if the meaning of a contractual provision is not clear, it shall be interpreted according to common practices or customs of the place where the contract was made. Furthermore, the Khmer tradition of conciliation beginning at the village level remains a part of the dispute resolution process. Conflicts are often dealt with at village level first before being heard by a court of first instance.
During the transitional period described under “Post-DK period to present day” above, a Supreme National Council (SNC) was established under the Peace Paris Agreements. Under the terms of the Agreements, the “SNC represent[ed] the unique legitimate body and source of authority in which, throughout the transitional period, the sovereignty, independence and unity of Cambodia are enshrined.” The SNC represented Cambodia at the United Nations and delegated its powers to UNTAC during the transitional period until the election of a new government. During this period, laws such as the 1992 Electoral Law were drafted by UNTAC and adopted by the SNC. Laws adopted during this period remain in power until their replacement by laws enacted by Cambodia’s parliament.
Cambodia is a party to numerous international treaties and conventions, including the following treaties relevant to protection of human rights:
· International Covenant on Civil and Political Rights
· International Covenant on Economic Social and Cultural Rights
· International Convention on the Elimination of All Forms of Racial Discrimination
· Convention on the Elimination of Discrimination against Women
· Genocide Convention 1948
· ICC Rome Statute 1998
· Geneva Conventions 1949
· Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
· Convention on the Rights of the Child
International treaties are ratified by the King following a vote of approval by the National Assembly.
Given that, Cambodia is still a country in transition, electronic and hard copy legal resources are relatively limited. Nevertheless, a number of useful texts are available, legislation in a number of areas can be found online, and several websites provide useful information on the set-up and activities of Government ministries.
The UN Office of the High Commission for Human Rights publishes a compilation of laws and other legal instruments relevant to the administration of justice and institutional development in Cambodia. The compilation also contains the text of the main international human rights treaties to which Cambodia is a party, as well as the ILO conventions, extradition treaties, and other international instruments.
The compilation is available here .
An official gazette is published by the General Department of Official Gazette; however, this is not available online.
English language sources
Numerous laws are available online in the English language, including Land Law, Law on Nationality, Law on the Investment of the Kingdom of Cambodia, Law on Taxation, Labor Law, Law on Insurance, Law on Foreign Exchange, Law on Marriage & Family, Trademark Law, Law on Land Management, Urban Planning and Construction, Law on Mineral Resource Management and Exploitation, and Law on the Dividing of Property
These and other laws can be found at:
· ECCC Law
· Legal System of Cambodia, by Siphana Sok and Denora Sarin. Contains an historical overview, discussions of the sources of law and key legal principles, and descriptions of relevant institutions.
· "Cambodia" article in Legal Systems of the World: A Political, Social, and Cultural Encyclopedia, vol. 1, pages 240-244. Contain sections on the legal system, legal concepts, judiciary and impact.
· The Cambodian Constitutions (1953-1993), by Raoul M. Jennar provides the text of the various constitutions that have governed Cambodia since 1947.
· Introduction to the Cambodian Judicial Process, by Koy Neam. Provides an overview of the judicial system in Cambodia, including its structure, and a step-by-step guide to judicial procedures.
· Legal Profession in Cambodia, by Ky Tech et al.
· International Conference on Cambodian Legal and Judicial Reform in the Context of Sustainable Development, edited by Sok Siphana (1998)
· Problems Facing the Cambodian Legal System by Fernando, Basil
· Cambodia, the Justice System and Violations of Human Rights, by Ross, James
· Rebuilding Cambodia: Human Resources, Human Rights, and Law: Three Essays by Dolores A. Donovan, Sidney Jones and Dinah PoKempner and Robert J. Muscat; Foreign Policy Institute, Paul H. Nitze School of Advanced International Studies, Johns Hopkins University, 1993.
· David Chandler, A History of Cambodia, 4th ed, 2008
· Craig Etcheson, The Rise and Demise of Democratic Kampuchea, 1984
· Elizabeth Becker, When the War was Over, 1998
· Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975-79, 1996
· Raoul M Jennar, The Cambodian Constitutions 1953 – 1993, 1995
· Philip Short, Pol Pot: The History of a Nightmare, 2005
* The information and views expressed above are given by the authors in their personal capacity and not on behalf of their respective employers.