5-6 March 2011
By: Chea Sophal
Phnom Penh, Cambodia
Phnom Penh: 5 March 2011, with the support from Nagoya University, Royal University of Law and economics (RULE), Harvard-Yenching Institute, Japan Jurist League for Cambodia, and Franville Techno Co. Ltd, the Third Annual International Symposium is organized at RULE with main focus on Public Power, Private Autonomy and Market Forces. I could not attend the full two-day symposium and I was only able to take part the first day event. I could not summarize some of the following topics:
· International Cooperation in the Development and Strengthening of Social Protection/Security Systems
· The Development of Legal Education in Cambodia
· Legal Education in Malaysia
· Legal Education Reforms in Japan
H.E. Youk Ngoy, Rector of RULE, provided greeting remarks. He stressed the overall changes in educational development in Cambodia with the exchange of other Institutions and pointed out that the young generations are now taking initiatives for country developments. Mr. Ichihashi Katsuya also expressed the remarks welcoming the symposium. He focused on the collaboration between Cambodian and Japanese universities. He stressed that this activity brings us new areas of collaboration. Dr. Kuong Teilee, Associate Professor, Center for Asian Legal Exchange, Nagoya University, provided the opening remarks. He recalled three years ago on the initiative that we had this ideas of exchange ideas on the judicial reforms and areas of legal technical details. We tried to involve as many as Universities to share the ideas such as RULE, PUC, and Mekong University. We have not moved to enroll for membership, Cambodia depends on subsidies, said Dr. Kuong Teilee.
For the two-day event, four panel discussions are set up. The panel discussions will focus on:
· Administrative Law and Justice: Regulation, Deregulations and Self-regulation;
· Securities Law: Facilitating and regulating financial and capital flows;
· Social Security Law: Building a new social-economic order in the existing marketplace; and
· Legal Education: Legal education reform in the market economy.
Dr. Teilee expressed that it is good combination of experts both locally and internationally to discuss the above four main sectors.
I. Panel 1: Administrative Law and Justice: Regulation, Deregulation and Self-regulation
Mr. Kai Hauerstein, Advisor to the Council for Legal and Judicial Reform (the Council of Ministers), chaired the panel discussion. The speakers in the panel includes Dr. Theng Chan-Sangvar, Chief of Cabinet at the Ministry of Rural Development and Professor of Law at RULE, Dr. Ly Sopheap, DAI, Cambodia, Mr. Thierry Schwarz, Head of Project on Administrative Cooperation, French Advisor to the Council for Administrative Reform, Cambodia, Dr. Jorg Menzel, Associate Professor, University of Bonn, Germany, and Mr. Ichihashi Katsuya, Professor and Director of the Center for Asian Legal Exchange, Nagoya University, Japan.
A. Administrative Justice in Cambodia: Challenges and Proposals
Dr. Theng Chan-Sangvar reflected the long history of administrative justice in Cambodia throughout various regimes such as the past glories (9th-14th centuries), the decline (15th-17th centuries), the French colonization (1863-1953), the Independence and Sangkum Reasniyum, the Communism and the dark age, and the Paris Peace Agreement of 1991.
The past experiences showed that the old Kingdom of Cambodia used customary law and the judiciary belonged to the King. The King decided sanctions against ordinary people and public officials. This concluded that administration is directly responsible before the King, said Dr. Sangvar. The French model integrated a separate jurisdiction and the separation of the administrative and judicial activities were introduced in 1920 with the establishment of administrators and judges, added Dr. Sangvar. The other evolutions of administrative justice includes First Criminal Code (1924) prohibiting the judiciary to interfere the competence of the administrative authorities, Krom Viveat (1933), the specialized jurisdiction to judge the administration from 1933, and Administrative Court of Justice (69 decisions in 1967).
Dr. Sangvar showed the challenges of Administrative Justice in Cambodia like the problem of choice (cross road of ideologies, the civil law family vs. the common law tradition, systematic vs. specific, and communist heritage), characters of the administration in Cambodia (a strong and centralized state: the central administration and the “superficial” decentralization, the problem of the judiciary (the independence, the competence of the judges, and the resource adequacy), and the problem of culture (the submission to the administrator, the mediation rather than confrontation, and the experience of fear).
Dr. Sangvar raised a few proposals to fix the challenges such as additional legal provisions (Law on adoption procedure of administrative act, Administrative litigation procedure law, and Law regarding principles on liabilities of the public entities), and providing some possible ideas such as the school of training of judges and prosecutors, the specialization of judges, and creation of specialized chambers within the existing courts.
B. Independent Regulatory Bodies (IRBs) in France-Lessons for Cambodia
Mr. Thierry Scharz, Head of Project on Administrative Cooperation, French advisor to the Council of Administrative Reform, Cambodia, talked through the session on Independent Regulatory Bodies (IRBs) in France and Lessons for Cambodia.
He provided the definitions of IRBs as follows:
1) Is a regulatory institution independent from other branches of the government. In other words: a body not under the hierarchical authority of government and that is not subject to instructions from the government.
2) Independence is usually the result of fixed term and irrevocable mandate for the Head of the agency and the members of the Board.
3) IRBs are usually a part of the executive branch of the government; in some cases they perform their functions with oversight from the legislative branch; they can also in some cases make decisions that would normally be judicial decisions.
4) IRBs’ actions are generally open to judicial review as if they were part of the executive branch of government.
5) IRBs exercise authority mostly in the areas of administrative law.
Mr. Thierry told about the roles of IRBs which include general and impersonal rules, adjudication, licensing, sanction, and soft law. The IRBs take part in various sectors such as monitoring of markets, regulation of the deregulated industries, safety regulation, and protection democratic rights. There are 42 IRBs in France today. France, which is a country well known for its high degree of centralization and belief in State legitimacy, accommodates a fair number of IRBs, said Mr. Thierry.
Some authorities in Cambodia are not real IRBs. They are PPSWA, APSARA, CNPA, National Aids Authority (NAA), Cambodia National Tourism Authority, National Information Communications Technology Development Authority (NiDA) since most of them are service providers. However, there are a few IRBs in Cambodia like National Audit Authority, Anti-Corruption Unit, Security and Exchange Commission of Cambodia, and Electricity Authority of Cambodia, added Mr. Thierry.
C. Development in German Administrative Law
Dr. Jorg Menzel, Associate Professor, University of Bornn, Germany, delivered the presentation on German Experiences-old and new on Development in German Administrative Law focusing on Structure of Administrative Law, Some Historical Milestones, Constitutionalization, Europeanization/Internationalization, Some Modern Developments, and New Administrative Law Science.
Sources of Administrative Law include General and Special Administrative Law, Statutes, Regulations, By-Laws, Codified Law and Customary Law, and Court Decisions and Academic Expertise, said Dr. Jorg. He pointed out some principles in the Constitutionalization for example the Legality Principle (Priority of the Law and Necessity of the Law), Proportionality (Rationality/Suitability, Necessity, and Adequateness), and Judicialization (Article 19 IV German Constitution: Comprehensive Court Protection, Administrative Courts and other courts, the Constitutional Court, and the European Court).
There are some modern developments that he presented. Those consists of Regulatory Impact Assessment, Reducing “red tape”, Reducing the state’s sphere (privatization), the Emergence of “Regulation Law”, Reducing Formality and Command Structures, and Introducing E-Government, said Dr. Jorg.
D. Development of administrative procedure law in Japan and Its Relevance in the New Comparative Law Studies
Mr. Ichihashi Katsuya, Professor and Director of the Center for Asian Legal Exchange, Nagoya University, Japan, expressed the process on administrative law (administrative procedure, administrative appeal procedure, and administrative litigation procedure).
“In Japan, the Administrative Procedure Law was adopted in 1993. When there were “closed relations between the state bodies and a certain group of citizens (industries)”, an administrative activity named “administrative guidance” peculiar only to Japan was widely practiced. The first case of Japanese assistance in administrative procedure law was the JICA project on assisting the establishment of the Law on Administrative Procedure in the Republic of Uzbekistan”.
Mr. Ichihashi Katsuya, Professor and Director of the Center for Asian Legal Exchange, Nagoya University
Mr. Ichihashi further highlighted the new type of comparative administrative law.
“The experience of legal assistance in administrative law has opened up a new type of comparative administrative law which is interactive and multifaceted. Donor countries (Japan, Germany, and the U.S.) have been cooperating among themselves in implementing legal assistance projects. They have all tried to disseminate information about their own administrative law to the recipient countries, whereas recipient countries receive the information and adopt a model of their own choices. This is a “process” of dissemination – receiving – making choices – adoption – and, evolution”.
Mr. Ichihashi Katsuya, Professor and Director of the Center for Asian Legal Exchange, Nagoya University
II. Panel 2: Securities Law – Facilitating and Regulating Financial and Capital Flows
Dr. Philip Dews, Deputy Vice Chancellor, Cambodian Mekong University, chairs this panel discussion with other two coordinators, Mr. Ly Chantola, Professor, RULE, and Dr. Ly Sopheap, DAI, Cambodia.
A. Legal and Regulatory Framework for Security Market in Cambodia
Mr. Kao Thach, Deputy General Director, Securities and Exchange Commission of Cambodia (SECC), talked on a number of issues on Legal and Regulatory Framework for Security Market in Cambodia in terms of Terminology, Overview of Financial Market in Cambodia, Development Approach of Securities Law, Structure of Legal Framework, Law on Government Securities, and Law on Issuance and Trading of Non-Government Securities.
Securities in Cambodian Securities Law consist of two main types: Government Securities and Non-Government Securities. The legal framework for the securities market in Cambodia include Law on Government Securities (January 2007), Law on the Issuance and Trading of Non-Government Securities (October 2007), Anukret on the Conduct and Organization of the Securities and Exchange Commission of Cambodia (July 2008), Anukret on Implementation of Law on Issuance and Trading of Non Government Securities (April 2009), Prakas on Licensing of Securities Firms and Securities Representative (November 2009), Prakas on the Grant of Approval to Operator of Securities Market, Operator of Clearance and Settlement, Securities Depository Operator (December 2009), Prakas on the Corporate Governance for the Listed Company (January 2010), Prakas on the Issuance of Equity Securities (January 2010), Application Forms Lodgment for Securities Brokers, Dealers, Underwriters, and Investment Advisor (January-March 2010). (Kao Thach, Legal and Regulatory Framework for Security Market in Cambodia, CSCL-2011)
B. Securities Market and Corporate Governance in Korea: Comparative Insight and Potential Lessons for Cambodia
Mr. Kim Joogni, Professor and Associate Dean for International Affairs, Yonsei Law School, Korea, covered the historical development of adaptations of important reforms, therefore, Korea’s companies have become far more transparent and accountable. Professor Kim’s not-for citation further indicated that Cambodia can perhaps learn from Korea’s experiences since Korea has adopted in terms of its financial institutions, the chaebol, ownership, shareholder rights and accounting transparency and enforcement.
His paper further discusses on Securities Market and Corporate Governance, Financial Institutions, the Chaebol (Ownership Structure, Directors and Boards, Shareholder Rights and Activism, and Disclosure, Accounting and External Auditors) and Recent Challenges to Progress.
C. Securities Regulation in Singapore
Dr. Alexander Loke, Associate Professor, Faculty of Law, National University of Singapore, Singapore, provided a lecture on Tailor-Fitting the securities regulatory regime for Singapore in which he pointed out firstly on the Complexity of the Regulatory Regime in Singapore, secondly on Adjusting the Regulatory Model – From a merit-based Regime to a Disclosure-based Regime, and thirdly on Designing Rules to Suit the Local Context.
D. Securities Regulation in Japan
Mr. Matsunaka Manabu, Associate Professor, Graduate School of Law, Nagoya University, talked about the Corporate law, securities law and self-regulations by stock exchanges, Japan’s experiences, Stock exchanges as a rule maker, and a mode of rule making and divergence of law. The background information on securities regulations in Japan showed about the Companies Act (CA, the law on all types of companies), Financial Instruments Exchange Act (FIEA, the law on financial instruments and services, investor protection, regulation of securities exchange, and disclosure and tender offer), Self-Regulations (by Stock Exchanges) and Orders, Ordinances and Rules Under Acts (provides detailed rules concerning the provisions of the acts and delegated to cabinet or ministries).
III. Panel 3: Social Security Law – Building a new social-economic order in the existing market place
This session is chaired by Mr. Kong Phallack, Dean, Professor of Law, PUC with the assistance of another coordinator, Mr. Ly Chantola, Professor, RULE.
A. International Cooperation in the Development and Strengthening of Social Protection/Security Systems
Dr. Bernd Schramm, GTZ Programme Coordinator, Social Health Protection Programme
B. The Legal Framework for Public Health Insurance Funds in Germany
Mr. Michael Stahl, Social Health Insurance Advisor, National Social Security Fund, Ministry of Labour and Vocational Training, reflected the history of Social Health Insurance in Germany, Constitution and the Code of Social Law, Self-governing Bodies, and Legal Framework for the Formal Sector Workers at NSSF. The Statutory Health Insurance (SHI) in Germany evolved since 1883 by Otto van Bismarck and the gradual extension of SHI coverage extended to transport and office workers in 1901, agricultural and forestry workers in 1911, civil servants in 1914, unemployed in 1918, seamen in 1927, dependents in 1930, sales person in 1966, self-employed farmers in 1972, and students and disabled in 1975. (Mr. Michael Stahl, The Legal Framework for Public Health Insurance Funds in Germany, CSCL 2011).
C. Perspectives for Social Security Coverage in Cambodia
Mrs. Nina Siegert, Social Health Insurance Advisor, National Social Security Fund for Civil Servant, Ministry of Social Affairs, Veterans and Youth Rehabilitation, expressed the Social Protection Extension Strategy under the ILO which consists of two major scopes: First, the horizontal dimension (each individual is entitled to a minimum level of social security, without exception or discrimination. For ILO, this “minimum core content” comprises the four essential social security guarantees: Access to Health, Children Benefits, Income Security for Elderly and Disabled, and Income Security and Public Employment Guarantee Schemes for Unemployed and working poor), and Second, the vertical dimension (corresponds to the progressive implementation of social security towards the full realization of this right. This comprises higher levels of income security and access to higher quality health care).
Social Protection Provisions in Cambodia are covered in the Constitution (Article 36, 46, and 73-75), the 2nd Phase of the Rectangular Strategy for Growth, Employment, Equity and Efficiency (2008), the National Strategic Development Plan 2009-2013, and the National Social Protection Strategy for the Poor and Vulnerable-CARD (to be endorsed soon). The Cambodian Laws concerning aspects of Social Security/Social Protection include Social Security Law for Persons Defined by the Labour Law (2002/MOLVT), Social Security Draft Law developed by the MoSVY (2010), Law on the Protection of the Rights of People with Disabilities (2009/MoSVY), and Insurance Law (2000). (Nina Siegert, Perspectives for Social Security Coverage in Cambodia, CSCL-2011)
D. Legal Regime for the Welfare of Employees
Mr. Sok Bora, Deputy Chief of Legal Division, NSSF, discussed on National Social Security Fund which refers to the public establishment (for all matters other than technical are under the supervision of MoLVT, while the Ministry of Finance administers all finance related issues). Legal framework for NSSF is under the Constitution (Article 75), Cambodian Labour Law (1997), Law on Social Security Schemes for Persons Defined by Provisions of the Labour Law (2002), and Sub-degree on Establishment of the NSSF (2007).
Employers are required to cover work injury which is a compulsory social insurance covering all employees as defined by the Provision of Labour Law and enterprises employing 8 or more employees are placed under this NSSF. Employers must pay to employees for work injury. Under the partial funding method, the contribution for work injury scheme is determined by 0.80% of the assumed wage based on the employee’s monthly wage. (Sok Bora, Legal Regime for the Welfare of Employees: National Social Security Fund, CSCL-2011)
IV. Panel 4 – Legal education reform in the market economy
The Panel 4 discussion is chaired by Dr. Meas Bora, Professor, Cambodian University of Specialties with Dr. Phin Sovath, Professor, Pannasastra University of Cambodia, as a coordinator of the panel.
A. The Development of Legal Education in Cambodia
Dr. Hor Peng, Dean, Faculty of Public Administration, RULE
B. Introducing Interactive Lecturing into Law Schools in Cambodia
Mr. Sten Austermiller, American Bar Association’s Legal Education Advisor in Cambodia, talked through the influences on education, problems with traditional forms of legal education, adult education or children’s education, role pay exercises, the best teaching methods (learning pyramid: Lecture, Reading, Audiovisual, Demonstration, Discussion, Practice doing, and teaching others), and new teaching methods.
Mr. Sten also expressed on other interactive teaching methods such as small group with task and report, case studies, debates and problems solving, socratic method, journals, research and writing, competitions, and field visits.
C. Legal Education Reforms in Japan
Mr. Shiozawa Kazuhiro, Professor, Seikei University, Tokyo
D. Legal Education Reform in Thailand
Dr. Sakda Thanitcul, Dean, Faculty of Law, Chulalongkorn University, Thailand, briefed the history of legal education in Thailand.
“Legal education in Thailand started in 1897 with the establishment of the first law school by Prince Rapee, the Father of Modern Thai Law, with Prince Rapee himself as the key instructor. Later, his Majestic King Rama VI raised the status of such law school as a royal school and attached it to the Ministry of Justice. It was not until 1933 that such law school attained a university-level status. Replacing the law school under the Ministry of Justice, the “Faculty of Law and Political Science” was inaugurated at Chulalongkorn University in 1933, but shortly thereafter, transferred to Thammasart University as the first Faculty of Thammasart University”.
Sakda Thanitcul, ASEAN Charter and Legal Education Reform, CSCL-2011
Dr. Sakda also elaborated degrees and programmes provided in Thailand, teaching methodology, ASEAN Charter as a Factor Driving Changes in Legal Education in Thailand and Potential problems in Implementing Certain Issues Stated in the ASEAN Charter and Actions to Cope with the Changing Landscape (a language barrier, a lack of qualified full-time law instructors, a lack of legal materials, buildings and equipment, a lack of interactive learning environment, and the need of multi-disciplinary programme).
E. Legal Education in Malaysia
Dr. Johan S. Sabaruddin, Associate Professor and Deputy Dean, Faculty of Law, University of Malaysia
F. International Cooperation in Training of Legal Professions
Mr. Okamoto Yohei, JICA Advisor, Royal School for Judges and Prosecutors, Phnom Penh, talked through the Introduction of Japanese Legal Aid, Outline of RSJP Project, and Possibilities and limits. The countries that receive Japanese Legal Aid include Vietnam, China, Laos, Nepal, Indonesia, Kazakhstan, Tadzhikistan, Uzbekistan, Kyrgyz, East Timor, Mongolia and Cambodia. Japan has implemented two projects focusing on training in legal professionals: Project aiding lawyers’ training center (LTC) and Project for the improvement of training on civil matters at Royal School for Judges and Prosecutors (RSJP).
Genocide and Resistance in Southeast Asia: Documentation, Denial, and Justice in Cambodia and East Timor
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Night of the Khmer Rouge: Genocide and Justice in Cambodia
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