LEGAL SYSTEMS OF THE WORLD

V O L U M E I
LEGAL SYSTEMS OF THE WORLD
Political, Social, Cultural Encyclopedia
H E R B E RT M. K RITZE R,
EDITOR
Copyright © 2002 by Herbert M. Kritzer
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means,
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Library of Congress Cataloging-in-Publicanon Data
Legal systems of the world ; a political, social, and cultural
encyclopedia / edited by Herbert M. Kritzer.
p. cm.
Includes index.
ISBN 1-57607-231-2 (hardcover : alk. paper); 1-57607-758-6 (e-book)
1. Law—Encyclopedias. I. Kritzer, Herbert M., 1947—
K48 .L44 2002
340'.03—dc21
2002002659
"Cape Verde" originally published in the Journal of 'African Law 44, no. 1 (2000): 86-95.
Material in "Comoros" and "Djibouti" used with the kind permission of K/uwer Law International.
Material in "European Court of Justice" from Kenney, Sally J. "The European Court of
Justice: Integrating Europe through Law." 81 Judicature 250-255 (1998). Reprinted
in Crime and Justice International, November.
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CAMBODIA
GENERAL INFORMATION
Cambodia (Kampuchea), officially the Kingdom of Cambodia,
is a country in Southeast Asia. It is bordered on the
east and the southeast by Vietnam, on the northwest by
Laos, on the west and northwest by Thailand, and on the
southwest by the Gulf of Siam and Thailand. From north
to south Cambodia spans 450 kilometers (280 miles) and
from east to west about 580 kilometers (360 miles). Its
total area is approximately 182,000 square kilometers
(70,000 square miles). The central part of the country consists
of plains spreading out from the Mekong River delta.
To the north are the Damgrek Mountains. To the south are
Cardamon (Kravanh) Mountains, and the Damrei Mountains
form the highland area covering the region between
the great freshwater lake Tonle Sap and the Gulf of Siam.
Cambodia's population in 1998, according to official
figures, was 11,437,657, with females comprising 52 percent
of the population. One-quarter of Cambodian
women are heads of household. Approximately 42 percent
of the population is under the age of fifteen, and 50
percent is under the age of eighteen. The vast majority of
the people, 85 percent, live and work in rural areas. Out
of this rural population, 83 percent of women and 72
percent of men work in agriculture.
Cambodia has twenty-one different ethnic minorities.
Seventeen are ethnic tribes; the other four are Thais, Chinese,
Vietnamese, and Laotians.
The rate of annual population growth, 2.5 percent, is
the highest in the region. Population density is at 64 persons
per square kilometer. The rapid population growth
affects the growth of gross domestic product (GDP),
which was at 4 percent per year in 1999. In 2000, GDP
per capita was US$274.
The official language of Cambodia is Khmer. The capital
city is Phnom Penh.
HISTORY
Cambodia today is a small remnant of what was once a
large Khmer empire that peaked in the twelfth and thirteenth
centuries. Archeological evidence is that Khmer
habitation in Southeast Asia dates back about 600,000
years and Khmer civilization may have begun as early as
two thousand years ago.
Following the demise of the Khmer empire in the
mid-fifteenth century, Cambodia experienced invasions
by its neighbors as well as internal conflicts. In 1863,
France established a protectorate over the country.
Cambodia promulgated its first modern constitution in
1947, establishing democratic governance and a multiparty
system largely modeled on the constitution of the French
Fourth Republic. Cambodia gained its independence in
1953 under the leadership of King Norodom Sihanouk. In
1955, King Sihanouk abdicated the throne in favor of this
father, Norodom Suramaritr, so that he might involve himself
in national politics. At this stage in Cambodian history,
the 1947 constitution relegated the role of the monarch to
that of symbolic rather than actual power—it became a
constitutional monarchy. For Sihanouk to play an actual
political role, he had to abdicate the throne, as a monarch
could not also participate in the political governance of the
state. Sihanouk became die country's political leader, and
die country was under his authoritarian rule until he was
ousted from his position as prime minister/head of state by
Lon Nol in a military coup on March 18, 1970.
Following the 1970 coup, the country became embroiled
in civil war. Cambodian Communist forces, widely
known as the Khmer Rouge, gained increasing power both
by taking over Cambodian territory and through popular
support and support by Shanouk. After his ouster, Sihanouk
allied himself with the Khmer Rouge, thus boosting
the influence and popularity of the Communist movement.
The nation was further destabilized because of the
United States' extension of the Vietnam War into Cambodia
in pursuit of enemy guerrillas. Carpet bombing of the
countryside killed some 700,000 Cambodians.
On April 17, 1975, the Khmer Rouge took over the
country. Soon they established the most repressive and
brutal regime in Cambodia's history. They emptied the
cities and forced the urban population into the countryside.
In their reign of terror about 1.7 million people
died; more than 100,000 were executed; and the rest perished
from diseases, malnutrition, and exhaustion.
In 1979, as a result of long-simmering border disputes
and with military assistance from the Soviet Union, Vietnam
invaded Cambodia and drove the Khmer Rouge
from power. In their place, the Vietnamese army installed
a group of ex—Khmer Rouge officers, including Hun Sen,
the current prime minister of Cambodia. Remnants of
the Khmer Rouge regrouped along the border with Thailand.
Other non-Communist groups also organized resistance
to the Vietnamese-backed regime.
The resistance continued for ten years. In September
1989, Vietnam pulled out its troops, and in October 1991,
the four warring factions—the Khmer National Liberation
Front, FUNCINPEC (an acronym of the French name for
the National United Front for an Independent, Neutral,
Peaceful, and Cooperative Cambodia), the State of Cambodia
(representing the incumbent Vietnamese-backed
government), and Democratic Kampuchea (known as the
Khmer Rouge)—reached a United Nations—brokered
peace agreement in Paris. Under this agreement, Cambodia
was put under the administration of the United Nations
Transitional Authority in Cambodia (UNTAC). One
of UNTAC's main duties was to administer general elections
held in 1993. The factions converted into political
parties to compete in the election. Despite political vio-
240 CAMBODIA
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lence and intimidation by the Cambodian People's Party
(CPP), representing the former Communist regime, and
by the Khmer Rouge guerrillas, approximately 90 percent
of Cambodians voted. The royalist FUNCINPEC party,
headed by Prince Norodom Ranarridh, won the election.
The CPP refused to accept FUNCINPEC's victory
and threatened to plunge the country back into civil war
if power was not shared with them. Ultimately, a powersharing
agreement was reached between Ranariddh, who
became first minister, and Hun Sen, vice president of the
CPP, who became second prime minister.
In 1997, Sen staged a coup in which hundreds of
FUNCINPEC members and members of opposition parties
were killed or injured. Ranarridh was ousted as first
prime minister. Hun Sen of the CPP currently heads the
government of Cambodia.
LEGAL SYSTEM
Pre-Angkorian Era
Details about the legal system of the pre-Angkorian era
are sparse. The memoirs of two Chinese diplomats, dating
from 225 C.E., show that Cambodia (called Funan)
had a system of laws modeled on the Indian system. The
Cambodian system, which survived until the thirteenth
century, as reported by another Chinese diplomat, included
trials by ordeal such as throwing the accused to
wild animals. Trials by ordeal exist unofficially in the
country to this day, although they are very rare.
Angkor
The stability of the Khmer Empire (Angkor), beginning
in 802, allowed for reform and elaboration of the legal
system. The ancient Khmer society was hierarchical; personal
status flowed from function or position held in the
administration, titles, names, and wealth. The system of
ownership of land was well developed.
The court of law was called vmh sabha or dhamadhikarona.
There were central or municipal courts of law
called vrah sabha nagara and provincial or territorial
courts called vrah sabha sruk. The sovereign was the ultimate
authority of law and had the power to grant
amnesty or pardon.
The officials associated with the administration of jus-
CAMBODIA 241
tice were given the title sabhapati (later sopheathipdey),
president of the court of the presiding judges; gunadosadarsi,
inspector of qualities and defects; svat vrah
dharmasastra, reciter of the sacred legal text; vyavaharadhikarin
or ranvan, usher; care, emissary; vrah sarvadhikarin,
judicial land surveyor; mahasresthi or
sresthimukhya, chief of merchants; ta cam likhita kamvuvansa
nu anga vrah rajakaryya, records keeper; Pratyaya or
rajapratyaya, royal confidante or representative; and
pratyaya mrtakadhana or amrtakadha.no,, administrator of
property received by inheritance.
Indian legal textbooks such the Manu, the Dharmasastras,
and other sastras or law were studied and practiced
in the royal courts. Legal terminology, both that
used for speaking in court and that used in writing, was
mainly in Sanskrit, but Khmer was used in descriptions
of material facts.
The litigation process commenced with a complaint
by the plaintiff, a response by the defendant, and examination
by the court. The steps in the proceeding were
also modeled on the vyavahara matyka. The procedure of
examination of witnesses (saksin) and evidence was also
modeled after the Indian practice of the time.
In the late sixteenth century, in the aftermath of invasion
by the Siamese, which resulted in looting and destruction
of legal texts and records, King Chey Chettha
focused on law reform. He created a royal law commission
and appointed six people to revise and collate legal
texts that remained in the country. As a result, twelve
volumes of law were promulgated. Two of the most important
laws were the Kram Sopheathipdey or Law of the
Presiding Judges and Kram Chor or Crimes Act. The
death penalty was abolished, and the severity of sentences
was reduced.
French Influence on the Cambodian Legal System
In 1863, Cambodia became a French protectorate. By the
French-Cambodian treaty of 1884, a French administration
of justice was established, under the supervision of a
French resident. By royal ordinance of February 7, 1902,
the provincial court of first instance, the Sala Khet, and a
court of appeal, the Sala Outor, were established on the
basis of Cambodian law. A royal ordinance of June 26,
1903, established the Supreme Court, the Sala Vinichay.
At this stage, indigenous laws were still applicable. By
royal ordinance of September 7, 1910, formal law courses
were established in Khmer for judicial officials.
Royal commissions were created by a royal ordinances
of May 5 and August 11, 1905, and by ordinances of
September 3, and October 21, 1908. The royal ordinance
of November 20, 1911, the Code of Criminal Instructions
and Judicial Organization, Penal Code, Book
I, of the French Civil Code were promulgated and came
into force on July 1, 1912.
In 1915, the French took complete control over the
Cambodian judiciary. In the early 1920s, indigenous laws
were replaced by French laws and the French legal system.
A civil code, a law on judicial organization, a judicial personnel
statute, and a law on the control of the judiciary
were promulgated. A court of petty crimes Sala Lahu,
court of first instance (Sala Dambaung or Sala Lukhun in
Phnom Penh), the Court of Appeal (Sala Outor), and the
Supreme Court (Sala Vinichay) were established. Book I,
previously promulgated, was recodified and came into
force on July 1, 1920. It was now divided into four books
regulating person, property, obligations (contracts and
torts), and procedure. By royal ordinance of April 5,
1948, an administrative chamber was established with the
jurisdiction to hear administrative matters. Appeals are
submitted to the Council of Ministers. In 1953, an administrative
appeal tribunal was established to hear appeals.
This entire legal system was abolished in April 1975
when the Khmer Rouge took power.
After the Vietnamese invasion in 1979, which ousted
the Khmer Rouge regime, and the installment of a puppet
regime officially known as the People's Republic of
Kampuchea, a legal system was reestablished, but modeled
on that of the Soviet Union. Despite constitutional
reform in 1993, the Soviet system and practice still define,
in part, the Cambodian legal system today.
LEGAL CONCEPTS
The Cambodian legal system has suffered as a result of
the various political influences since Cambodian independence
in 1953—authoritarianism, military dictatorship,
the total annihilation of the French-based legal system
by the Khmer Rouge, and the introduction of
Soviet-style communism under the Vietnamese-backed
regime established in 1979. The current regime, which
took power in 1993, bears many hallmarks of Soviet-style
practice.
Only ten lawyers remained in Cambodia after the
Khmer Rouge were ousted. Thousands of lawyers were
killed, died of starvation or disease, or fled the country.
The legal infrastructure was also destroyed and has had to
be rebuilt from scratch.
As a result of 1993 elections sponsored by the United
Nations, Cambodia adopted a new constitution. The
1993 constitution stipulates liberal democracy and a
multiparty system. It provides for a separation of powers
between the three branches of government—the legislature,
executive, and judiciary. The legislature is composed
of the National Assembly and the Senate. The constitution
states that a free-market economy is the foundation
of state's economic system. It restores the monarchy, but
with the stipulation that the monarch reigns but does not
rule. It recognizes and respects human rights as defined in
the U.N. Charter, the Universal Declaration of Human
242 CAMBODIA
Rights, and all other treaties concerning human rights,
women's rights, and children's rights. It also provides for
due process of law and prohibits enacting laws with
retroactive force. It provides for checks and balances on
the branches of government. It allows citizens of both
sexes over twenty-five years of age to run for office.
Despite the liberal terms of the constitution, in reality
Cambodia is dominated by a powerful executive and a
judiciary composed of generally unqualified political
appointees.
JUDICIARY
Article 109 of the constitution enshrines, for the first
time in Cambodian history, the principle of the independence
of the judiciary. The judiciary comprises four separate
legal entities: the Constitutional Council, the
Supreme Council of Magistracy, the courts, and prosecutors.
The court system is divided into courts of first instance,
the Court of Appeal, and the Supreme Court.
The judiciary has the constitutional power to review
the executive branch. Citizens are entitled to lodge complaints
with the court for judicial redress of violations of
the law by the executive, by organs of the executive, or by
members of a particular organ. It is also empowered to determine
administrative law matters, which traditionally
were the competence of the executive, the administrative
chamber, which is a separate administrative law structure
with the Council of State as the supreme court. The 1953
constitution provided for the establishment of a council of
state, perhaps to act as the highest administrative law review
body; but an organic law was never passed and so this
body was never created. Accordingly, not a single administrative
law case has been heard in Cambodia since 1970.
Supreme Council of the Magistracy
To guarantee the independence of the judiciary, the 1993
constitution provides for the establishment of an independent
body, the Supreme Council of the Magistracy,
with the power to appoint, transfer, suspend, and remove
judges and prosecutors. In December 1994, the National
Assembly adopted the Law on the Organization and the
Functioning of the Supreme Council of the Magistracy.
During debate of the draft law, the minister of justice,
who had previously acknowledged that the constitution
prohibited him from sitting on the council, insisted on
being included as a member of it. Over opposition, and
with the Constitutional Council not yet formed to review
the constitutionality of his membership, the law was
passed and the justice minister became a member.
The Supreme Council of the Magistracy is composed
of nine members: the king, who presides over the council;
the minister of justice; the president of the Supreme
Court; the prosecutor general attached to the Supreme
Court; the President of the Court of Appeal; the prosecutor
general attached to Court of Appeal; and three judges
selected from among all sitting judges. All members except
the king are political appointees of the ruling CPP.
The Law on Political Parties allows members of the council
to maintain their party ties and engage in such political
activities as campaigning during elections. Without a
clearly defined term of office and a requirement of legal
qualifications, the members are vulnerable to political
manipulation, and the ability of the Supreme Council to
ensure judicial independence comes under question.
The new law assigned to the council powers beyond
those permitted by the constitution. The council has, for
example, not only the power to discipline judges and
prosecutors but also to remove and dismiss them.
Constitutional Council
The 1993 constitution provides for the creation of a
Constitutional Council to interpret laws passed by the
National Assembly and to rule on their constitutionality.
Although the constitution fails to assert that this council
is to be independent from any other governmental body,
the Law on the Organization and Functioning of the
Constitutional Council does so.
In providing for a constitutional council, the Cambodian
constitution of 1993 mirrors the French constitution
of 1958, which included the constitutional review
body in order to curb excesses of legislative or executive
power. This is an example of appropriating French law
and institutions where they may not be appropriate to the
Cambodian context, where the executive has always
dominated the other branches.
The Constitutional Council consists of nine members,
each appointed for a nineyear term. The terms are staggered,
so that one-third of the council members are replaced
every three years. Three of the members are appointed
by the king, three by the National Assembly, and
three by the Supreme Council of the Magistracy. The
president of the Constitutional Council is appointed by
the members of the council. The president, who must be
a CPP member, has the prevailing vote in case of ties.
There is no guarantee of tenure—the king, the National
Assembly, or the Supreme Council of the Magistracy
can remove a member at will before the member's
nine-year term is completed—although such a guarantee
would facilitate members' impartiality and independence.
Neither is there a requirement that members have legal
qualifications or undergo legal training following appointment.
Rather, any Cambodian with a degree in law, administration,
diplomacy, or economics and at least fifteen
years of work experience to be appointed to the council.
The jurisdiction of the Constitutional Council is
broader than that of its French counterpart. It automatically
reviews the constitutionality of "organic laws, National
Assembly's Internal Regulations, amendments to
CAMBODIA 243
the organic law and National Assembly's Internal Regulation"
after passage by the National Assembly but prior to
promulgation, and any enacted law or promulgated law
submitted for review by the king, the president of the
National Assembly or one-tenth of its members, or the
prime minister. Ordinary Cambodians may also seek review
of any law by petitioning the president of National
Assembly or an assembly member. In addition, the law
grants litigating parties the right to submit for review by
the council any provision of a law at issue in the litigation
or any administrative decision that affects the party's
rights or liberties. Applications for such review are to be
lodged at the Supreme Court. Arguably, this provision is
in violation of article 109 of the constitution, which vests
the competence of the review of administrative decisions
in the courts.
Unlike its French counterpart, however, the council
does not have the power to review executive decrees, decree-
laws, subdecrees (regulations), and international
treaties. The council therefore serves as a check against
abuses by the legislative branch while allowing the executive
to enact decrees with impunity.
It appears that it was the intention of the National Assembly
that the council be an independent body. The
Constitutional Council Act requires members to be impartial
and to recuse themselves from consideration of
any case that presents a conflict of interest. Deliberations
and votes must be secret. Members are prohibited from
making public statements. Like the Supreme Council of
the Magistracy, however, the Constitutional Council is
dominated by the CPP. Six of the council's nine members
belong to the ruling party, and only a simple 5—4 majority
vote is required for a decision. There are no council
members from the other political parties. The CPP members
of the council are encouraged to maintain their party
affiliation, although council rules require that a leave of
absence be granted if a member wants to work on an election
campaign or seek elective office.
An example of the politicization of the council is that
it declined to hear eighty-five complaints regarding recent
elections lodged by an opposition party, the Sam
Rainsy Party. These complaints were rejected outright by
clerks and were never reviewed by council members.
Structure of the Judicial System
In civil and criminal matters, cases are initiated at the court
of first instance, the municipal court, or the provincial
court. Appeal is a matter of right in both civil and criminal
matters, and the Court of Appeal will hear an appeal de
novo on both factual and legal issues. A further right of appeal,
on legal grounds, can be made to the Supreme Court,
the highest court for general cases unrelated to constitutional
law issues. The structure of the Cambodian court
system is shown in the accompanying figure.
Legal Structure of Cambodia Courts
Constitutional Council
The Military Court was established in 1981 under
Decree-Law No. 05 (12/08/81), which gives the court jurisdiction
to try members of the military, civilians who
work in the Ministry of National Defense, and civilians
who have committed military offenses with members of
the military.
Specialized Judicial Bodies
Cambodia is in a process of setting up a special tribunal,
officially known as the Extraordinary Chamber in the
Courts of Cambodia. The draft law, called the Law on
the Establishment of the Extraordinary Chambers in the
Courts of Cambodia for the Prosecution of Crimes Committed
under the Period of Democratic Kampuchea
("The Khmer Rouge Law"), was passed by the National
Assemby in January 2001 and has been promulgated. As
of November 2001, the next steps for setting up the tribunal
had not been taken by the Cambodian government.
Some international observers are concerned about
an apparent reluctance on the part of the Cambodian
government to set up the tribunal after years of discussion
with the United Nations and the international community.
This tribunal, if successfully established, will have the
jurisdiction to hear charges of genocide, crimes against
humanity, and war crimes levied against Khmer Rouge
members who are believed responsible for the death of
about 1.7 million people during their period of their rule,
from April 17, 1975, to January 7, 1979.
National Elections Committee
The National Elections Committee (NEC) is a body established
in 1997 to administer the election of members
of the National Assembly and commune elections and to
adjudicate electoral disputes. The Constitutional Council
244 CAMBODIA
is its final appellate body. Although the NEC was supposed
to be an impartial body composed of representatives
of all parties that contested the 1993 elections, in reality
its ten members were appointed by the CPP.
Staffing
There is no requirement for members of the judiciary to
have a law degree or a particular level of legal training.
The Royal Faculty of Law in Phnom Penh, closed in
1975, reopened only in 1993, and its first class graduated
in 1997.
As of 2001, only two of nine Supreme Court justices
held a bachelor's degree, and only one of those two degrees
was in law. Two judges had a diploma in law, having
studied law for one year. Of the remaining judges,
two had graduated from high school, one from primary
school, one held a teacher's certificate, and one was a
graduate of the Ecole Royale d'Administration.
Of the Court of Appeal judges, six held Bachelor of
Law degrees, and one had a bachelor's degree in another
field. Of the remaining three judges, two had graduated
from high school and one from primary school.
The accompanying figure shows the number and disposition
of judicial personnel in Cambodia.
LEGAL PROFESSION
After twenty years without a law regulating the legal profession,
the Law on the Bar was adopted on June 15,
1995. As a result, the Bar Association was established on
October 6, 1995. On that day, thirty-eight lawyers were
admitted to legal practice before the Court of Appeal.
The new members later elected a president of the association
and nine members of the Bar Council, a body that
regulates the association as a whole. The Bar Council has
the power to grant and revoke licenses to practice law. As
of 2001, there are 221 members of the bar, of whom only
176 hold a license to practice and are practicing.
Apart from its responsibility to train, professionalize,
and discipline its members, the Bar Association plays an
integral role in establishing democracy and the rule of law
in Cambodia. Unfortunately, the association has become
politicized and has been accused of corruption. Its members
have been known to act in an unprofessional manner
as brokers between judicial officials and their clients.
There are two internationally funded legal aid organizations
in Cambodia that have been providing free legal
assistance to the poor: Legal Aid of Cambodia, created in
1995, and the Cambodian Defender Project, created in
1994. Most practicing lawyers in Cambodia work for
these two organizations.
IMPACT OF THE LAW
Cambodia has a civil law tradition, but the administration
of justice still bears the hallmark of the old Soviet
Cambodia Judiciary
Category Judges Prosecutors
Constitutional Council
Supreme Court
Appeal Court
Provincial/Municipal Court
Military Court
Total in Judiciary
9
9
10
89
11
128*
4
4
46
4
58
Clerks
15
59
43
372
36
525
'Includes 7 judges in the Ministry of Justice.
practices. The government, dominated by the CPP, does
not regard legal reform as a priority. Nevertheless, Cambodia
has moved beyond the years of brutal repression
and is beginning to rebuild social and governmental institutions
and the national economy. The 1993 constitution
provides for the protection of human rights and for
the establishment of the democratic institutions. Although
not always followed in practice, the constitution
can supply the legal framework for the gradual evolution
of Cambodia's political system from authoritarianism to
democracy. The determining factor, however, will be
whether future governments of Cambodia accept the
principle of democracy and the rule of law.
Bora Touch
See also France; Vietnam; Laos
References and further reading
Chakravarti, Adhir. 1978. The Sdok Kak Thorn Inscriptions: A
Study in Indo-Khmer Civilization. Part 1. Calcutta: Sanskrit
College.
Donovan, Dolores A., Sidney Jones, and Robert]. Muscat.
1993. Rebuilding Cambodia: Human Resources, Human
Rights, and Law.
Initial Report of States Parties Due in 1993: Cambodia.
23/09/98. CCPR/C/81/Add.l2 (State Party Report).
Cambodia's Report to the International Covenant on Civil
and Political Rights Committee.
Marks, Stephen. 1994. "The New Cambodian Constitution:
From Civil War to Democracy." Columbia Human Rights
Law Review 26(5): 45.
Sok, Siphana, and Denoran Sarin. 1998. The Legal System of
Cambodia.
Ricklefs, M. C. 1967. "Land and the Law in the Epigraphy of
Tenth-Century Cambodia." Journal of Asian Studies 26(3):
411.
CAMEROON
GENERAL INFORMATION
Cameroon is located in Western Africa, bordering the Atlantic
Ocean, Equatorial Guinea, Gabon, and the Re-
CAMEROON 245