The Justice Ministry keeps a list of all its judges that at first
glance is relatively straightforward. Separated by province and listed
by rank, Cambodia's roughly 120 judges fall neatly into place.
But a closer look reveals a complexity that reflects the country's
turbulent times over the last few decades.
Under the "Education" category lie at least a dozen different types of
schools a Cambodian judge might have attended, depending on what regime
he studied under. And while about half of the judges
on the list were appointed after the last national election of 1998,
some of the appointments date back to 1982, just years after the Khmer
Rouge regime was toppled and the country began to rebuild under watchful
At the head of one section might be a judge who can wax on for hours
about the divergent legal systems that have spanned Cambodia's many
regimes, with an acute sense of how communist law, usually in the form
of decrees passed down from high officials, differs from Western law,
which has dominated Cambodian policy since 1993, when the country held
its first democratic election and drafted a constitution.
Yet not too far away from him on the list might be another judge who
never studied law and whose provincial court today is so corrupt that
middlemen have set up shop to help people get more for their bribery
These stark contrasts are not lost on those keeping a keen eye on
Cambodia's judges. Considering up to a dozen judges could be selected to
preside over the country's most important trial ever -- a tribunal that
would apply international law to Khmer Rouge leaders allegedly
responsible for more than one million deaths from 1975-79 -- critics fear
too few are up to the challenge.
The capacity of Cambodia's judges, or their ability and training,
certainly is one concern, says one representative of Human Rights Watch,
a US-based rights monitoring group.
"But I think the 1998 elections showed that even with highly qualified,
senior people, including expatriates and dual citizens, there is still
an enormous pressure -- and in some cases outright threats -- exerted from the
top" that leaves them too open to political bias.
When a handful of judges were asked how many of their peers would be
capable of serving on a Khmer Rouge tribunal, the highest number they
gave was 15.
The lowest, five.
Moreover, every one of them said no matter how far away from Phnom Penh
they were, they felt the pressure of Prime Minister and ruling Cambodian
People's Party vice president Hun Sen's order to re-arrest criminals
whom he alleged were set free by corrupt courts.
Says Chum Samban, deputy chief judge in Svay Rieng province:
"To do this Khmer Rouge trial fairly, you will have to find judges who
are both experienced and independent -- in other words, those who are not
involved with the political party."
'One of the good guys'
Inside Kandal Chief Judge Hy Sophea's humble, stuffy office, people
mill about with questions and complaints. Above the din can be heard the
judge's cool voice, as he answers them one by one.
Meticulously signing documents in two types of ink, his wide face
easily breaks into a thoughtful smile when asked about how many types of
law he has studied -- French, Vietnamese, American -- and how much of an
effort he has made to keep up with Cambodia's changing regimes.
Mention his name to most legal reformers, and they will tell you Hy
Sophea is "one of the good guys," a judge who is dedicated to bettering
his understanding of law.
For him, making the enormous paradigmatic shift away from Vietnamese
socialist law -- which, when he studied, was more akin to executive
policies such as bans on public protests than statutes passed by
lawmakers -- meant years of training that continues to this day.
According to the US State Department's recent report on human rights,
Vietnam's courts to this day exercise "unchecked power," and judges
issue decisions according to the Communist Party's wishes, despite some
efforts to establish a more independent judiciary.
Hy Sophea studied law under that same system, in addition to 12 years
of primary and secondary education before Cambodia fell to the Khmer
Rouge. He studied for one year in Phnom Penh and then went to Vietnam,
where he studied law until 1991. After he returned to Cambodia he took
some 600 hours of Western legal courses over the years and has taught at
the Faculty of Law since 1995.
While he easily can dissect the details of various statutes, he
maintains that the shift of Cambodian judges from one legal system to
the next will not happen overnight -- and that even he still applies
socialist principles in cases where new laws are not clearly defined.
"Before, Cambodia favored socialist law, and now we favor democratic
law," Hy Sophea says. "But of the two laws, neither one has a firm hold.
We take theories from both and apply them as our limited economic and
human resources allow."
In other words, in the absence of clear policy, it's best to apply laws
that are the most fair to the complainants, he argues.
Sok Sam Oeun, a legal reformer and executive director of the Cambodian
Defenders Project, says this is the very problem that will keep even the
best of judges from making a difference. Even people like Hy Sophea will
be limited in their efforts to reform by incomplete laws, he says.
A group of laws considered by legal analysts as crucial building blocks
for true democracy in Cambodia -- basic penal, criminal-procedural and
civil codes, and laws dealing with the duties, organization, salaries
and discipline of judges, prosecutors and clerks -- remain stalled in
drafting committees awaiting final passage.
For instance, Cambodia needs a law forbidding judges from reading case
dossiers long before a case is heard, Sok Sam Oeun says, which only
allows them to make rulings arbitrarily.
"Many of Cambodia's judges were trained in socialist regimes and know
only socialist legal concepts, where the state's interest is more
important than the freedom of the people. Most of them to some extent
were trained this way, and it will take a lot of undoing to change
Unfortunately, Sok Sam Oeun says that for every Hy Sophea who tries to
follow still incomplete laws, there are many others too tied to the old
ways. While a handful of the country's top jurists graduated from the
same class in Vietnam as Hy Sophea, few have taken the steps that he has
to further their knowledge of the law.
When Sok Sam Oeun looks at the Justice Ministry's list, he can only
shake his head.
In the more remote provinces like Preah Vihear, Prey Veng and
Ratanakkiri, a number of judges have just between five and nine years'
primary and secondary education, according to the list. In Koh Kong
province, judges' education is as low as three and four years.
A few judges, too, have been hit by recent scandal.
In Mondolkiri, a judge recently was suspended for his involvement in a
Even the seemingly more established judges in Phnom Penh have come
under fire. The Supreme Court recently disallowed the release from
prison of a drug suspect, even though it had acquitted him for a lack of
evidence. In Phnom Penh's Municipal Court, the chief judge and the chief
prosecutor recently were suspended and replaced in a sweep by the
government's executive branch to root out corruption that eventually led
to Prime minister Hun Sen's re-arrest order.
And few can forget the June trial of Nuon Paet -- a former Khmer Rouge
rebel sentenced to life for ordering the kidnapping and murder of three
Western tourists in 1994 -- where the judge raised issues in her final
decisions that never were addressed in the trial.
"[The Nuon Paet trial] was a test case for how the country's courts
would handle a high-profile trial. And it showed that political
influence is still there," said the representative of Human Rights
Despite the seemingly insurmountable troubles, Hy Sophea is optimistic.
He says Cambodia has scads of bright, young law students just waiting in
the wings to take the reins as judges and apply new principles.
"I am not a strong man. But we have to try. We have to try hard. If we
don't, the next generation of judges will not make it."
'Strongman of the court'
"Prisoners, step forward!" barks Tith Sothy, chief judge in Kompong
Seated at the head of his courtroom, he calls five kidnapping suspects
to the bench, leaving little doubt who is in charge.
"Does any of you want to change judges?" he asks them. Quietly, they
answer "No" in unison.
Militant and authoritative, Tith Sothy is just a few steps down the
Ministry of Justice's list from Kandal judge Hy Sophea.
But the two could not be more different if they tried.
"He is the strongman of court," says Chin Bunthan, a lawyer with Legal
Aid of Cambodia who is defending one of the accused kidnappers. "He lets
very little slip by him without controlling it. He is very strict."
In Cambodia's most populous province where Hun Sen's brother for
several years served as governor, rights workers and everyday people say
political influences play a big role.
A former teacher who never went to law school, Tith Sothy in 1986 was
appointed to his post by the Vietnamese-installed Ministry of Justice.
To this day, a handful of his relatives serve on the court.
As Licadho prison monitor Bon Videak puts it:
"The court here is not known as the court of Kompong Cham. It is known
as the court of Tith Sothy."
Later, in his office, Tith Sothy begins an interview with a joke about
judges taking bribes in Cambodia. The director of what NGOs and legal
analysts say is one of Cambodia's more corrupt courts, he cannot deny
"I cannot tell a lie," he says. "Even I take money from time to time.
But only after the case is decided, and sometimes I don't know they are
giving me money. Sometimes they are giving me a box, and I think it is a
Tith Sothy even admits the existence in his court of a middle-man who
for years allegedly has taken money from families who hoped he would
have better success bribing court officials.
During an interview with the middle-man's wife, she maintained her
husband's duties were "not illegal, because he knows all the bosses."
Although Tith Sothy denies a direct connection with the middle-man, he
says the man "sometimes gives money to court officials" and that Tith
Sothy has "warned him to watch himself, but there is no law banning his
existence as an adviser to people.
"If a judge is a clever man," Tith Sothy says, "he can find ways to
make a lot of money."
Even Tith Sothy's biggest critics acknowledge that judges' salaries are
ridiculously low and only encourage wrongdoing.
"You talk about court reform?" he asks. "There is nothing to reform if
they don't raise my salary. I can't reform," he says.
A raise in judges' official salaries -- from an average of $15 a month to
between $200 and nearly $600, depending on a judge's rank -- is included in
the latest judges' law that was approved by Cambodia's Supreme Council
of Magistracy, established as the government's top judicial watchdog in
charge of judges nationwide. But the law is stalled in committee at the
Ministry of Justice, awaiting passage by the Council of Ministers.
In Tith Sothy's mind, everyday people who criticize judges do not have
a clear picture of the law. Like children, he says they will always
blame their parents, even if their parents are not at fault, he says.
"Everybody wants to win. Right or wrong, they do not understand," Tith
Sothy says. "If I really wanted to make people happy, I would have to
issue two decisions in every case."
When judges make arbitrary rulings, however, the consequences often go
much deeper than just general unrest among the people, rights workers
According to Licadho, a Kompong Cham man in 1996 who allegedly was beaten by police
and took his case to court eventually killed himself when the court
ruled in favor of authorities.
That said, rights groups acknowledge that progress is being made as
more NGOs gain a foothold in Kompong Cham's court.
At the kidnappers' trial, one suspect by the end of the day is released
for a lack of evidence.
Tith Sothy says this "might make political leaders unhappy" -- referring
to the recent court shakeup in Phnom Penh Municipal Court that resulted
in Hun Sen's re-arrest order. But he says he must do his best to uphold
"I do what I think is my duty. I'm not a good man...but I don't want to
be a bad man. I do the best I can."
'I never dreamed'
Further down the Justice Ministry list and further away from Phnom Penh
sits Chum Samban, the deputy director in Svay Rieng province, who at
first shudders at the idea of granting an interview and says he must
first talk to his boss.
A shadowy figure whom local rights workers say they rarely see, the
court director is "off in a meeting" and cannot be reached. But Chum
Samban finally asks someone to go and "find him" and gets the clearance
"I want to talk about how we are trying to become more independent,"
says Chum Samban, who has served in this court since it was first
re-established in 1982. "But it's important to have [the interview]
approved first....We are not independent here."
As he speaks, he grows less tense and points out his office window
toward a grassy area where his family home once stood.
After the Vietnamese overthrew the Khmer Rouge in 1979, he returned to
find the home destroyed and abandoned, but he quickly worked to rebuild
a life and became the village chief. Three years later, the government
recognized his efforts and gave him a job at the court. In 1984, he
became its second highest-ranking judge.
"I never dreamed I would be a judge. I always thought I would be a
pilot. But all my friends who were pilots ended up dead. So I guess I am
lucky," Chum Samban says.
According to the Justice Ministry list, a number of remote provinces
have judges like Chum Samban who were appointed in the post-Khmer Rouge,
communist era and have little formal training.
At that time, finding trained professionals -- let alone anyone who was
willing to leave Phnom Penh to take a post in the still unstable
provinces -- was a difficult task, analysts agree.
The high number of early-1980s appointees highlights the larger problem
of how to train judges who really aren't judges in the Western sense.
"At that time, a judge wasn't seen to be a trained professional," says
Matthew Rendall, a lawyer and legal instructor with the Cambodia Law and
Democracy Project. "He was more likely to be someone who was a party
loyalist who had raised in the ranks.
"Their role was not to discern laws, but to apply them according to the
government's wishes. Many of them even think this new way is
strange...that maybe they aren't ready for independence."
Yet Pen Dara, the vocational center manager at the Cambodian Center for
the Protection of Children's Rights in Svay Rieng, says the court there
is beginning to take action against alleged child traffickers whom she
frequently exposes when she removes children from brothels.
Again, she suggests that the increasing number of watchdog groups is
helping even the most entrenched judges reform. She says, however, that
judges only act in accordance with the law when pressured to do so by
NGOs. When dealing with everyday people, "they don't always
cooperate...and they probably still ask for money."
"Judges just need to learn more. Some of them never studied the law and
have been in place for too long," Pen Dara says.
But Chum Samban defends his experience, saying a newly-graduated law
student is no match for years on the bench.
The Supreme Council, which is supposed to be solely responsible for
disciplining judges but has only met a few times since it was
established in 1993, recently has been considering moves to match old
judges with new ones, officials said. According to Justice Ministry
Undersecretary of State Y Don, the council's new draft law on judges
frequently would rotate judges in and out of provinces.
Matthew Rendall agrees that experience counts for quite a bit.
"Like in Western countries, the best judges are the most experienced.
Older people have value in that they know how to solve disputes."
Although it has been suggested that Cambodia might be better off just
wiping its judicial slate clean and starting over with newer, more
highly trained judges, Matthew Rendall says that is not a feasible
According to Janet King, in-country director of the US University of
San Francisco's Community Legal Education Center based in Phnom Penh,
changing existing judges' mentalities and training their eventual
successors will be a "multi-generational project.
"They're not going to change their mental mindsets by sitting in on a
lot of seminars and workshops. This change will take decades," she says.
Few disagree that it will take time for Cambodia's judges to catch up
with the country's new, more democratically oriented policies put in
place in part to please international donors, who cover roughly half the
government's annual budget.
But one Human Rights Watch representative said some reforms can't wait.
"There's a lot we can do right now," she said. "We can strengthen the
Supreme Council and reform it as a neutral body, independent of the
Ministry of Justice and of political parties. Also, we can better ensure
judges' safety when they take a strong stance.
"The meager salaries -- there's got to be a way [to raise them]. The
government did it for the members of Parliament. And, the government
should strictly enforce the law against out-of-court settlements. While
it's part of the Cambodian informal system of bargaining, it could be
changed in the short term.
"All of this," she argues, "can be changed in the short term."