By Hong Sambath*
17th August 2011
Based on the observation of legal implementation, historical legal study background and most of the experiences in Cambodia real society related legal issues; I will try to figure out with some concepts and issues in relations to John Austin's Theory in fulfilling the class paper assignment under the course of Comparative Studies in Legal Thoughts. Following, I will focus on law making system and law enforcement approaches and their issues.
John Austin's theory “Law is a Command Forcing by Sanction “(Law Methods and Doctrine of Interpretation, pg 17).
After Paris Peace Agreement, Cambodia has applied the democracy policy, therefore, the Cambodian Constitution recognizes all human rights guaranteed under the Universal Declaration of Human Rights (UDHR). The relevant portion of Article 31 states that the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women’s and children’s rights. Besides the UDHR, the other relevant International Covenants are also ratified by the Government such as the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), International Covenant on Civil and Political Rights (ICCPR, 1966), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979), Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1984), and Convention on the Rights of the Child (CRC, 1989). The fact that these Conventions were referred to in Article 31 shows that all these internationally recognized human rights are incorporated in the chapter on the Rights and Obligations of Khmer Citizens, and the courts can enforce such rights. In a given case, the courts may have to ascertain these rights, and if they are violated, the courts have the power and duty to protect citizens against such violations. All these rights are based on respect for human dignity, which is fundamental in any liberal democratic society.
The right to equality is recognized in Article 31: "Every Khmer citizen shall be equal before the law, enjoying the same rights, freedom and fulfilling the same obligations regardless of race, color, sex, language, religious belief, political tendency, birth origin, social status, wealth or other status." Likewise, under Article 1 of the UDHR, "All human beings are born free and equal in dignity and rights" and Article 7, "All are equal before the law and are entitled without any discrimination to equal protection of the law." In other words, the State shall not deny any citizen equality before the law nor the equal protection of law. This means all are equals and shall be treated as equals. It postulates the application of the same law alike and without discrimination to all persons. It denotes equality of treatment in equal circumstances. It implies that among equals the law should be equally administered without distinction of race, color, sex, religion, wealth, social status or political influence.
As the principles of democracy, the procedure of law making divide into two approaches, one is draft law and other is proposed law. The government initiatives Draft law, the proposed law are initiated by people. But, since then all kinds of laws adopted are always draft laws. There is only one (Cambodian Law on Monogamy) promulgated on 2006.10.26 is proposed law.
With democracy theory, the initiative of law making is drafted by Executive Body to serve for public interest, but the real legal practice currently in Cambodia is that it propensities to the small powerful group. As the matter of fact, judicial system has no independence and it is always the tools of powerful and political group.
Nowadays, Cambodia implements two theory systems; Civil Law and Common Law both of its procedures have been mixed for initiative law making, law enforcement and the methods of legal settlement to the social issues. These methods always apply to all facts in issues or cases dealing with ordinary people.
At the same time, unfortunately, Cambodia seems to have a Silent Law enforcement which is recognized as unwritten Law; it is not meaning that this is the Common Law System. Silent law is known by conscience and it is used as a tool to solve the issue for powerful and political group. It means that, all issues occurred in this group normally always is settled by the method of Alternative Dispute Resolution (ADR) with regardless to civil, criminal or other issues. This is the ways of settling the problem with effectiveness and silently.
The current law enforcement in Cambodia, right away, applies the theory of John Austin (Legal Positivism), but it is applied only some parts of issues in a society. For silent law will be fulfilled to the remaining part for settling the issues, which always happened in this powerful and political group. It is unknown that, the silent law is non original or real initiative point of view and whether how long of time it will be continuously used?
The initiative concept of making laws (Draft and proposed procedures) and law enforcement seems to be applied to principles of democracy's theory. But at the meantime most of laws have been applied by John Austin's theory that let the enforcement of laws tends to serve the powerful and political group not serving public interests meaning that this is a kind of legal cheating approach in democracy.
In order to guide Cambodia to be on the right track of principles of democracy theory in the purpose onwards to the rules of law, Cambodian scholars, social leaders and political groups, especially the powerful political party which is running the government should have spirit on morality, willingness and qualified human resources.
Disclaimer: The view points from the articles posted in this academic forum do not reflect the opinions or ideas provided by the Nokor Khmer. They are genuinely the opinions of the article author.
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