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Analysis on Judicial Draft Laws

Analysis on Judicial Draft Laws . Presented by Duch Piseth Date: 3 June 2014. Contents. I. Objectives II. Scope and Methodology of the Law Review III. Key Findings and Concerns IV. Conclusions. I. Objective.

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Analysis on Judicial Draft Laws

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  1. Analysis on Judicial Draft Laws Presented by DuchPiseth Date: 3 June 2014

  2. Contents I. Objectives II. Scope and Methodology of the Law Review III. Key Findings and Concerns IV. Conclusions

  3. I. Objective • Provide input into the draft laws and submit to the National Assembly, the Senate, and relevant stakeholders and public. • Advocate to delay the adoption of the draft laws and open for public consultation. • Garner greater public awareness regarding the undermining judicial independence.

  4. II. Scope and Methodology of the Law Review • To examine the independence of the Judiciary based on the separation of Powers (Articles 51, 128, and 132 of Cambodian Constitution 1993); • Compare with the international norms and best practices such as: • International Covenant on Civil and Political Rights (ICCPR), 1966; • Universal Declaration on Human Rights 1948; • UN Basic Principles on the Independence of the Judiciary, 1985; • Consultative Council of European Judges; • Beijing Statement of Principles of the Independence of the Judiciary, 1995; • Draft Universal Declaration on the Independence of Justice (“Singhvi Declaration).

  5. II. Scope and Methodology of the Law Review • Meeting with CSOs, Donors and Business Community; • Exchanging key findings and concerns with international legal experts.

  6. III. Key Findings and Concerns • Draft Law on the Organization and Functioning of the Supreme Council of Magistracy (Law on SCM): • Art. 4: Composition of SCM: • Minister of Justice; • President of the Supreme Court; • General Prosecutor attached to the Supreme Court; • One member to be elected by Senate; • One member to be elected by National Assembly; • One member to be elected by Constitutional Council; • One member (among prosecutors) to be appointed by Minister of Justice; • Four other members to be elected by judges/prosecutors.

  7. III. Key Findings and Concerns • Draft Law on the Organization and Functioning of the Supreme Council of Magistracy (Law on SCM): • A 2007 CCJE opinion provides that NO minister or other member of the executive or administration, no active politician, and no member of the assembly should be a judicial council member; • In France, there is No Minister of Justice in the SCM.

  8. III. Key Findings and Concerns • Draft Law on the Organization and Functioning of the Supreme Council of Magistracy (Law on SCM): • Art. 5: The term of the elected members of the SCM shall be for five (5) years. Thereafter elected members of the SCM may run for continuous terms. (In France, 4-year non-renewable term) • Art. 7: In the event that the Minister of Justice or President of Supreme Court shall be appointed as the Royal Representative, the Minister of Justice or President of Supreme Court shall have the privilege to participate in the decision-making process of the SCM. • Art. 8: The SCM shall have a General Secretariat under the central administration of the Ministry of Justice to serve in support of its functions.

  9. III. Key Findings and Concerns • Draft Law on the Organization and Functioning of the Supreme Council of Magistracy (Law on SCM): • Art. 10: The Minister of Justice shall convene a meeting as a Royal order of His Majesty Chairman of the SCM. • Art. 13: All works of the SCM related to the drafting of Royal Decrees for submission to His Majesty the King are the burden of the Minister of Justice acting on behalf of the SCM. The Minister of Justice shall represent the SCM in communication with private or public individual persons and manages all administrative affairs of the SCM. • Art. 15: The SCM shall have its own budget provided in the national budget. The Minister of Justice is the legitimate budget authorizer, whose rights are delegated by His Majesty the King, the Royal Chairman of the SCM.

  10. III. Key Findings and Concerns • Draft Law on the Organization and Functioning of the Supreme Council of Magistracy (Law on SCM): • The CCJE calls for each SCM/judicial council to have: • Its own secretariat and freedom to organize itself, without being answerable for its activities to any political or other authority; and • The power and capacity to negotiate and organize its own budget effectively.

  11. III. Key Findings and Concerns • Draft Law on the Organization and Functioning of the Supreme Council of Magistracy (Law on SCM): • Art. 18: The SCM shall decide and submit requests to His Majesty the King regarding the appointment, transfer, discharge from post, suspension from job, and the removal of all judges. • Art. 23: A complaint related to disciplinary actions against the judges and prosecutors shall be submitted to the General Secretariat of the SCM or the Ministry of Justice. The Minister of Justice shall make a preliminary examination and investigation to establish a disciplinary case file before deciding to forward it to the Disciplinary Council of the SCM for further procedures.

  12. III. Key Findings and Concerns • Draft Law on the Organization and Functioning of the Supreme Council of Magistracy (Law on SCM): • Art. 26: The decision of the Disciplinary Council shall be submitted to the SCM for review and its decision. The decision of the SCM shall not be subject to any appeal. • Principle 20 of UN Basic Principles on Independence of Judiciary: Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. • Beijing Statement: • Principle 26 : In any event, the judge who is sought to be removed must have the right to a fair hearing. (Signhvi, principle 28) • Principle 28. Judgments in disciplinary proceedings, whether held in camera or in public, should be published. (Singhvi, principle 29)

  13. III. Key Findings and Concerns 2. Draft Law on the Statutes of Judges and Prosecutors: • Art. 7: Judges and Prosecutors to be under central administration of the Ministry of Justice. • Singhvi Declaration: Principle 36: The head of the court may exercise supervisory powers over judges only in administrative matters. • Articles 19-23 & 82: The Minister of Justice determines number of judges and prosecutors students and other related procedures determined by Proclamation (Prakas) of the Ministry of Justice. • Art. 33: Secretary of State of the Ministry of Justice is the President of Commission of Promotion and Advancement. The Minister of Justice may appoint any other compositions if necessary to assist this Commission.

  14. III. Key Findings and Concerns 2. Draft Law on the Statutes of Judges and Prosecutors: • Articles 50 & 96: In political sector, judges and prosecutors shall absolutely adhere to a neutral manner. • Articles 53 & 96: Judges and persecutors shall get authorization in advance from the SCM and the Minister of Justice, if they want to publish, or request to broadcast by all means of any text or written note as well as other comments. • Principle 8 of the UN Basic Principles on the Independence of the Judiciary, judges are entitled to freedom of expression so long as they conduct themselves in a manner that preserves the dignity of their office and the independence of the judiciary. (Similar to Principle 8 of Beijing Statement and Singhvi Declaration).

  15. III. Key Findings and Concerns 2. Draft Law on the Statutes of Judges and Prosecutors: • Art 75: The Minister of Justice is the chief of the prosecution and has the right to issue an written order to the prosecutions of all level of courts. • In France: The Minister of Justice is the head of public prosecution. However this is controversial since it is seen to represent a conflict of interest in cases such as political corruption against politicians. • Principle 8 of the UN Basic Principles on the Independence of the Judiciary, judges are entitled to freedom of expression so long as they conduct themselves in a manner that preserves the dignity of their office and the independence of the judiciary. (Similar to Principle 8 of Beijing Statement and Singhvi Declaration).

  16. III. Key Findings and Concerns 3. Draft Law on the Organization of the Courts: • Art 10: The courts at all levels shall have an administrative body that is under the central administration of the Ministry of Justice to support the functioning of the courts and prosecution. • Art 11: The Minister of Justice has the right to review all administrative affairs of all levels of courts. (Similar in France: The Ministry of Justice handles the administration of courts and the judiciary, including paying salaries or constructing new courthouses.) • Principle 32 of Singhvi and 36 of Beijing Statement: The principal responsibility for court administration, including appointment, supervision and disciplinary control of administrative personnel and support staff must vest in the judiciary, or in a body in which the judiciary is represented and has an effective role.

  17. III. Key Findings and Concerns 3. Draft Law on the Organization of the Courts: • Art 79: The courts and prosecution at all levels shall have separate budgets for functioning allocated from the budget of the Ministry of Justice…….. Managing and designing of the budget of the courts and the prosecution attached to the courts shall be determined by Sub Decree. • Articles 81 and 105 of the Constitution: The National Assembly and the Senate shall have an autonomous budget for its functioning. • Principle 34 of Singhvi and 37 of Beijing Statemenet: The budget of the courts should be prepared by the courts or a competent authority in collaboration with the courts having regard to the needs of the independence of the judiciary and its administration.

  18. III. Key Findings and Concerns 3. Draft Law on the Organization of the Courts: • Articles 81 and 105 of the Constitution: The National Assembly and the Senate shall have an autonomous budget for its functioning. • Principle 34 of Singhvi and 37 of Beijing Statemenet: The budget of the courts should be prepared by the courts or a competent authority in collaboration with the courts having regard to the needs of the independence of the judiciary and its administration. • In France, Belgium, Croatia, Germany, Italy, Luxembourg, Malta, Ukraine and the UK, there is no formal procedure for judicial input into the budget negotiated by the Ministry of Justice. However, countries like Estonia, Slovakia, Cyprus, Switzerland, Lithuania, and Russia, courts have power to submit their budget to Parliament.

  19. IV. Conclusions Will the draft laws, if passed into laws, undermine the independence of the judiciary under Articles 128 and 132 and separation of power under Article 51 of the Constitution, if: • Member of the executive is a permanent member of SCM? • Administration and budget of the judiciary controlled and determined by the executive (sub-decree)? • Member of the executive is a president of commission of promotion and advancement?

  20. Thank you for your attention! For more information, please contact: (+855) 23 726 901 or info@cchrcambodia.org Or Mr. PisethDuch, Trial Monitoring Project Coordinator of CCHR: (+855) 12 71 23 71, E-mail: duchpiseth@cchrcambodia.org

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