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Southeast Asian Region Countries Law

The Extraordinary Chambers in the Courts of Cambodia (ECCC)

Background

The 2003 Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea established the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (“ECCC"). These crimes were committed during the 1975 to 1979 regime of Pol Pot's Khmer Rouge.

The ECCC is an internationalised / hybrid court. Its subject matter jurisdiction includes the international crimes of genocide, crimes against humanity, grave breaches of the Geneva Conventions, destruction of cultural properties, crimes against internationally protected persons, as well as domestic crimes - those penalised in the 1956 Penal Code of Cambodia.

ECCC Decisions

The official ECCC website includes court documents and live courtroom video streaming.  

ECCC Decisions are also available on:

  • the ICC Legal Tools database (open access).
  • Oxford Reports on International Law (UniMelb staff & student access)

Commentary

For commentary on the ECCC, see:

  • Franziska Eckelmans, 'The ECCC in the Context of Cambodian Law' in Introduction to Cambodian Law Chapter 19  439-475 (open access)

Constitutional Council of Cambodia

Decisions

Selected decisions of the Constitutional Council are available in English from 2003 to current on the Council's website.

Overview

The Constitution is interpreted by the Constitutional Council. The Council also reviews the constitutionality of laws adopted by the legislature and executive regulations. The Council also functions as a Constitutional Court and serves as the final court of appeal in constitutional matters. Decisions issued by the Constitutional Council are final, binding and have supremacy within the legal system, meaning that all legal instruments must strictly conform to them.

  • More on the Council's review of the constitutionality of laws on the Cambodian Law Library website. 
  • More about the Constitutional Council on its website.
  • A detailed analysis of the composition and work of the Council is Taing Ratana, 'Constitutional Council: Election, Structure, Procedure and Competencies' in Hor Peng, Kong Phallack & Jörg Menzel, Cambodian Constitutional Law  (Konrad-Adenauer-Stiftung, 2016) 189-218 (open access).

Independence of the Judiciary

Article 128 of the Constitution guarantees an independent judiciary that upholds impartiality and protecting the rights and freedoms of the citizens. However, the judiciary has been criticized for its lack of independence and the financial and political control exerted over it. See for example, Justice versus corruption: Challenges to the independence of the judiciary in Cambodia, a 2015 report by the International Bar Association's Human Rights Institute. The report notes that the Cambodian government has increased its control over the Supreme Council of Magistracy and weakened judicial independence through its three 2014 judicial laws. These laws are:

  • the Law on the Organization and Functioning of the Supreme Council of the Magistracy;
  • the Law on the Status of Judges and Prosecutors of the Kingdom of Cambodia; and
  • the Law on the Organization of the Courts.

 

See also criticism of the 2014 laws in:

  • a 2014 report by the Cambodian Centre for Human Rights 'Three Draft Laws Relating to the Judiciary'; and
  • the UN Human Rights Committee's 2015 Concluding observations on the second periodic report of Cambodia (CCPR/C/KHM/CO/2). The Committee noted its concern about the lack of an independent and impartial judiciary, and that the laws on the judiciary do not establish sufficient safeguards for judicial independence.  

See also Kai Hauerstein, 'The Constitutional Role of the Judiciary in Cambodia: International Comparison and Implication for Reform' in the open access book Cambodian Constitutional Law by Hor Peng, Kong Phallack & Jörg Menzel (Konrad-Adenauer-Stiftung, 2016) 217-246 for a detailed scholarly analysis of the judiciary, the court system and judicial independence. 

Courts and Cases

Cambodia is primarily a civil law country and, as such, court decisions do not have precedential value, and are not often referred to in other cases (except in the ECCC and Arbitration Council). They are, however, recognised as a secondary source of law. In civil cases, when there is no written law relevant to the case or when the law is not clear, judges can consider other secondary sources of law such as customs, traditions, conscience and equity (Law on the Organisation of the Courts, Art 4 (1993). 

Court judgments are not publicly published. The exception to this is decisions of the  Arbitration Council, a tribunal which conducts mandatory but non-binding arbitration of collective labour disputes. Since June 2003 the Council's Arbitral Decisions have been published on its website in Khmer - and many are also in English. The site can be searched and browsed. The Arbitration Council 

Judicial power is currently vested in the Supreme Court (the final appeal court comprising two chambers - a Civil and Social Chamber and a Penal Chamber), the Appeal Court, and 23 First Instance Courts (located in most provinces / municipalities). The new Law on the Organization of the Courts (2014) organises courts according to specialised areas of law such as civil and criminal courts and introduces appeal courts for each province - this re-organisation has not yet been implemented.

Courts at all levels exercise judicial power and hear all matters. The Supreme Council of Magistracy is an independent body that oversees the judiciary (see the Cambodian Centre for Human Rights factsheet on this regulatory body).  A Military Court hears cases concerning military discipline. Judicial review is not vested with the courts, but in the Constitutional Council of Cambodia.