New Year Resolution

I left this blog for while as I was a bit busy during the last year. My resolution for this new year is to come back and make it active again. My focus will to help Khmer understand important social, cultural, political, economical, legal and moral values and principles such as justice, fairness and equality. I believe only when they clearly understand their basic concepts that they will then love and respect those values and principles. The only outcome from this resolution is to help the nation to educate and train Khmer to become sensible, capable and responsible citizens for their nation. I do hope this blog can make this goal realized.


Belles Pensees (1)

ឧត្តមគតិដែលខ្លាំងបំផុត គឺការស្គាល់ចំនុចខ្សោយរបស់ខ្លួនឯងឲបានច្បាស់បំផុត (Lamernnais)។

សូមមើល ហ៊ុន គឹមស៊ា <គំនិតល្អ> (ទំ ៤៥,​ ១៩៧៣)

I just watched half of an Indian movie talking about love of two people: an Actor Vee from India and an Actress Sara from Pakistan. Among others, I like three phrases as quoted:

“សារា សូមនាងផ្តាំទៅឪពុក ម្តាយរបស់នាងផងថា ខ្ញុំសូមអរគុណនូវគុណតំលៃ ដែលពួកគេបានផ្តល់មកឲនាង”

“វី ប៉ាជឿជាក់ថា សារា នាងមិនធ្វើឲឯងធ្លាក់ពីលើកងឡើយ និងមិនបណ្តោយឲឯង ជិះទៅរកផ្លូវខុសទេ”

“សូមនាងចង់ចាំថា នៅឯជាយដែន មានមនុស្សម្នាក់ហ៊ានស្លាប់ដើម្បីនាង”

I have tried to find out the Cambodian Criminal Procedure Code for a long time on the Internet, but I could not find one. Finally, I found one website which has recently uploaded the Criminal Procedure Code of Cambodia, and I would like to post links to this website because this code is very important for Cambodia and her people. There are two versions of this code: one in Khmer and one in French. We are still waiting for another version of English. At this moment for the Khmer and French versions, please click the following links:

  1. ក្រមនីតិវិធីព្រហ្មទណ្ឌ​ ឆ្នាំ ២០០៧
  2. Code de Procédure Pénale du Royaume du Cambodge

The two versions linked above were uploaded by the Office of the High Commissioner for Human Rights (OHCHR Cambodia). You can also access to other laws and regulations on this website through Khmer Law Compilation. I hope this post is useful for students and researchers in law who have no access to hard or printed copy of this code.

In one article of Koh Santepheap, I have learnt that a guy was killed by a car driven by a wealthy and powerful man in Cambodia (click here to read this news).  What happened after the accident? A license plate was removed by the police who said to the killer that: “Don’t worry. It wasn’t your mistake. It was the motorbike driver’s mistake.” A case was then closed after the killer paid 4000 US Dollars to the family of the victim (click hereto read it). I called the driver a killer because he did kill that guy regardless of whether it was intentional or unintentional. An Information Minister commented on this issue, and I will give my own opinion on these comments.

First, he told a reporter that “Normally, there is one problem in Cambodia. When a car hits any person, a license plate is removed if the driver wants to sell it. If keeping the license plate, no one will buy this car.” This is the reality in Cambodia. But, it should be the owner of the car who did it, not the police. Then, why the police had to care about whether or not the car could be sold after the accident? Or did the police try to keep the value or to protect the private interest of the driver? I scanned the law on the land traffic, but I could not find any article which allowed the police to do that. One journalist pointed out a doubt that the police tried to conceal the identity of the driver (read the second article mentioned above). Is it possible that the Information Minister gave his comment without legal basis, and then pointed out the reality to justify the removal of the plate?

Second, the Information Minister commented what remedies were available when one car hit a man. He said that in other countries, there are two types of remedies: monetary and penalty (criminal punishment). But, under the Cambodian law, “if hit, compensate the victim,” he continued. He pointed out that this point was different from other countries. His statement is not based on the law on the land traffic, and one can argue that the Minister knew nothing about this law. Concretely, let’s see what stipulated in the Law:

Article 69: “The drivers might be responsible for both penal and civil codes to the offenses [for both civil and penal offenses] that they have committed in driving the vehicles.”  Article 81: “Those who are driving by unintentionally provoking the permanent injuries to the others shall be imprisoned from one year to three years and/or fined from 2,000,000 Riels to 6,000,000 Riels.” Article 82: “Those who are unintentionally driving and provoking the death accident to the others shall be imprisoned from one year to three years, and/or fined from 2,000,000 Riels to 6,000,000 Riels.” Article 83: “Those who are willingly driving and causing the injuries, disabilities, or death to the others will be punished in compliance with the penal code.

I dont know why the Minister who is also the spokesman of the Country could argue that without a legal basis.  He knew nothing about this law, but gave comments on that. Or does he mean that we can hit any person as long as we can pay the monetary damages to the victim or his/her family? If so, his argument is not reflected by the law in the book, but by the law in action. Indeed, it reflects the reality in Cambodia where law enforcement is lax and subject to the rich. In this case, the rich just paid 4000 us dollars, he could escape from the law suit. This is the country where the lives of the poor are totally different from the rich and where the rich could buy their lives for a little amount of money. The rich do not need an expressed law to enforce this transaction, but the current system, such as corruption, bribe, and impunity, embedded in this country could help them to effectively carry it out. This is where we should start to reform not only through law enactment, but law enforcement. To start it is to reform the current corrupted and failed system.

The question of law and politics have become a central point for discussion among politicians, law makers, scholars, and civil society for almost every time immediately after the national election have just finished. In 2003, there was a remarkable event where the Cambodian Constitution was amended to solve the political deadlock. Since the 1993 the first year when the Constitution was adopted, many amendments have been made to accommodate and resolve political deadlocks. This raises a question of how law and politics interact with each other to solve the political deadlocks while at the same time to observe main principles such as the principle of separation of power and fundamental rights. While the problem has still been subject to discussion and have not been solved, the 2008 national election has brought the same problem that I believe we should pay more attention to it.

According to the announcement of the national election provisional result by National Election Committee,  the CPP gets 91 seats, the SRP gets 26 seats, Human Right Party (HRP) 3 seats, Funcipec 2 seats, and Norodom Ranariddh Party (NRP) 2 seats. The CPP will make a coalition with Funcipec to have a total seats of 93 seats, and the SRP, the HRP, and the NRP have made a democratic alliance to have a total number of 31 seats. This democratic alliance has just recently announced that they rejected the result of the national election, and their position, especially SRP, is about to boycott the first meeting of the near-future-established national assembly.

For the CPP, if the democratic alliance boycotts this first meeting, they are going to share the 31 seats whereby 15 seats will be given to the CPP and 16 will be given to the Funcipec. Then, it comes to the legal question of how to share these seats under the laws. The main discussion will focus on Article 76 of the Constitution which saying that “The assembly consists of at least 120 members.” The democratic alliance will base on this article to argue that without their participation, the requirement of at least 120 members cannot be fulfilled. It means that the National Assembly cannot be established without their seats.

The CPP takes a different position and argues that if the democratic alliance does not attend the first election, it means that they abandon their seats; therefore, their seats can be shared among other parties (See Cheam Yiep, the Cambodia Daily, August 5, 2008). There is no legal ground to reach to this conclusion. The Constitution does not say so and the Election Law does not make clear too. For these reasons, how the boycott can lead to the abandonment of the seat will be subject to the interpretation. The Constitutional Council will play an important role in this matter, but Hun Sen said that the Constitutional Council has already interpreted this. I cannot find which decision of the Constitutional Council on which he based to conclude this.

Even though, the CC has not interpreted it, it is believed that the CC will interpret in favor of the CPP. It does mean that law and politics distinction will depend on the neutrality and independence of the CC, but I think the CC will not go in that way. In this case, politicians are going to use law to get power to control this country, and the only result the democratic alliance will get if based on legal argument is a loss.  So the democratic alliance should use other strategies to win this battle.

Nevertheless, Chhim Phalvorun makes a very interesting argument that the political parties should bear two important responsibilities (See the Mekong Times, August 4, 2008). First, it is the legal responsibility for the electoral process. In this sense, they must show that the electoral process is fair and free. If there is enough evidence to show that it is necessary to hold a new election for any constiency, all should do it. If not, they have to accept the result. But they should not mix them up, I think. Second, it is the political responsibility for the voters. If they share the seats, they ignore the voters of about two millions for the democratic alliance. This will affect the democratization in Cambodia whereby it will discourage people from going to vote again because they lost their confidence and expectation. Therefore, two main responsibilities should be seriously considered by all parties: legal responsibility and political responsibility.