Legal System
Description of Cambodian Courts
- Phnom Penh Municipal Court
- Kandal Provincial Court
- Takeo Provincial Court
- Kampong Speu Provincial Court
- Preah Sihanouk Provincial Court
- Kampot Provincial Court ( Including Kep Province)
- Kampong Chhnang Provincial Court
- Posat Provincial Court
- Battambang Provincial Court
- Pailin Provincial Court
- Banteay Meanchey Provincial Court
- Siem Reap Provincial Court
- Kampong Thom Provincial Court
- Kampong Cham Provincial Court
- Tbong Khmum Provincial Court
- Kratie Provincial Court
- Prey Veng Provincial Court
- Svay Rieng Provincial Court
- Koh Kong Provincial Court
- Preah Vihea Provincial Court
- Stoeung Treng Provincial Court
- Ratanakiri Provincial Court
- Mondulkiri Provincial Court
- Udor Meanchey Provincial Court
Contact Address: Court of Appeal, Sothearos BLVD, Phnom Penh, Cambodia
Located in Royal Phnom Penh Capital;
Contact Address: Supreme Court, Sothearos BLVD, Phnom Penh, Cambodia
History of Cambodian Judiciary
Cambodia fell into cataclysm under the Kampuchea Democracy Regime from April 17, 1975 until January 06, 1979 “the Pol Pot Regime”. During the more than 3 years reign of the Pol Pot Regime, the State infrastructures were totally destroyed including the judicial system.
After liberation on January 07, 1979, Cambodia’s Infrastructures have been re-building starting from being empty-handed. During 1982, Cambodia, at that time it was called the People’s Republic of Kampuchea, created a Court in each province of Kampuchea which was called the People’s Court. The Supreme Court and Prosecutor-General’s Office had been created by a Decree No 28 ក្រ dated July 31, 1985 promulgating the Law on the Establishment of the People’s Supreme Court and Prosecutor-General’s Office of People’s Supreme Court. After that, in 1987, the Law related to the Supreme Court was introduced namely: Decree No 34 ក្រច of the Law on the Designative and Activity of People’s Supreme Court and Prosecutor-General’s Office of Supreme Court.
In 1993, the Cambodia-State created the Law of Designative and Activity Courts dated on February 28, 1993. The Law established the Court of First Instance, Appeal Court, and Supreme Court.
Finally, in 2014, the Cambodian Parliament adopted three fundamental laws for full operation of the Cambodian Judicial System. With the existing laws, Cambodian Judiciary has the Judicial System as explained above and operates presently.
Overview of Cambodian Judiciary
This section gives an overview of the judicial system in Cambodia without setting out the procedures of each Court. The judicial system focused in this section are the Courts and the Prosecution Departments. Courts of all sectors and levels have judicial jurisdiction over all cases including administrative cases – see Law on Court Organization (2014), Art 4.
At present, the Cambodian judiciary consists of the Courts of First Instance, Appeal Court and Supreme Court. The Court of First Instance is the lower Court and the Appeal Court and the Supreme Court are the Higher Courts – see Law on Court Organization (2014), Art.3§1.Besides these Courts, there is a Hybrid Court, which is known as the Extra-Ordinary Chamber within the Court of Cambodia- see Law on the Establishment of the Extra Ordinary Chambers within the Court of Cambodia (2004). updated on 21 Aug 2018
The Court of First Instance is regulated under Article 12 to Article 34 of the 2014 Law on Court Organization. The Court of First Instance is the first trial Court and is created by Royal Decree and located within the Capital and Provinces – see Law on Court Organization (2014), Art 5 and Art 12. For the Military Court – see Law on Court Organization (1993) Art.2, § 1.The Court of First Instance is divided into specialized Courts such as Criminal Court, Civil Court, Commercial Court and Labor Court – see Law on Court Organization (2014), Art 14. However, these specialized Courts have not yet been created and the current practice is for the competent Court of the respective provinces and the Capital Court to hear all cases.
The jurisdiction of the Criminal Court of the Court of the First Instance is stipulated in Article 20 of the 2014 Law on Court Organization. The Criminal Court of the Court of First Instance shall have the competence to hear all criminal cases which fall within its jurisdictional competence in accordance with the Code of Criminal Procedures, except as otherwise provided by other law.
The Criminal Court of the Court of First Instance shall adjudicate criminal cases by one Judge or a Panel of Judges in accordance with the provisions of the Code of Criminal Procedures – see Law on Court Organization (2014), Art 20.
The jurisdiction of the Civil Court of the Court of the First Instance is stipulated in Article 21 of the 2014 Law on Court Organization. The Civil Court of the Court of First Instance shall have the competence to hear all civil cases which fall within its jurisdictional competence in accordance with the Code of Civil Procedures, except as otherwise provided by other law.
The Civil Court of the Court of First Instance shall adjudicate civil cases by one Judge or a Panel of Judges in accordance with the provisions of the Code of Civil Procedures – see Law on Court Organization (2014), Art 21.
The term “Commercial Court” is found in the 1995 Law on Commercial Rules and Register. However, the Court has not yet been established. See Law on the Commercial Regulations and the Commercial Register, Art.55, (1995) . This law states during the period in which the Kingdom of Cambodia has no Commercial Court, the ordinary Courts of the Kingdom of Cambodia shall be competent in all commercial matters. Presently, all commercial cases are adjudicated by the Civil Court.
The jurisdiction of the Commercial Court of the Court of the First Instance is stipulated in Article 22 to Article 24 of the 2014 Law on Court Organization.The Commercial Court of the Court of First Instance shall have the competence to hear all commercial cases including insolvency case in accordance with provisions commercial procedures – see Law on Court Organization (2014), Art.22.The Commercial Court of the Court of First Instance, when hearing the cases, shall be comprised of three Judges and accompanied by two advisors, who are businessmen or who have knowledge in commercial laws where the subject matter is equal to or over 1.000.000.000 (One thousand million) Riels. However, where the subject matter is between 100.000.000 (One Hundred Million) Riels to below 1.000.000.000 (One thousand million) Riels, a panel shall consist of only one Judge and accompanied by two advisors, who are businessmen or who have knowledge in commercial law – see Law on Court Organization (2014), Art.23
The judgment of the Commercial Court of the Court of First Instance is rendered by one Judge or three Judges after the consultation with commercial advisorsdepending on the preceding paragraph. The commercial advisors do not carry out their duties permanently in the Commercial Court of the Court of First Instance. Commercial advisors carry out their functions at the invitation of the President of Commercial Court of the Court of First Instance – see Law on Court Organization (2014), Art.23.The procedures of selecting and the terms of reference for the commercial advisors are determined by a Sub-Decree upon the request of the Minister of Justice following the consultation with the Minister of Commerce – see Law on Court Organization (2014), Art 24.
The term “Labor Court” is found in the 1997 Labor Law, However, the Court has not yet been established – see Labor Law (1997), Art.389. Presently, Labor cases are adjudicated by the Civil Court.
The Organization of the Labor Court of the Court of the First Instance is stipulated under Article 25 to Article 28 of the 2014 Law on Court Organization. The Labor Court of the Court of First Instance shall have competence to hear all cases relating to labor in accordance with the provisions on the labor procedures – see Law on Court Organization (2014), Art. 25. The Labor Court of the Court of First Instance, when hearing the cases, shall consist of one Judge and accompanied by two labor advisors, among whom one is the worker/employee and another is the employer. The judgment of the Labor Court of the Court of First Instance is rendered by a Judge after the consultation with labor advisors. The labor advisors do not carry out their duties permanently in the Labor Court of the Court of First Instance. Labor advisors carry out their functions at the invitation of the President of Labor Court of the Court of First Instance – see Law on Court Organization (2014), Art.26.The procedures of selecting and terms of reference for the labor advisors are determined by a Sub-Decree upon the request of the Minister of Justice following the consultation with the Minister in charge of labor –see Law on Court Organization (2014), Art. 28.
The Competent Labor Court is the Labor Court of the Court of First Instance where the labor disputes arise. Though the competence is determined in the above paragraph, the workers/employees may file lawsuits in Court of First Instance as determined below, except as otherwise provided by the provisions of other law: at his/her place of residence or at the location of head office or a principal place of the company or legal entity or at the place of residence of the representative or a person in charge of the company or legal entity, if the location of head office or a principal place of the Company is not available – see Law on Court Organization (2014), Art.27.
As explained above, the higher Courts are composed of the Appeal Court and Supreme Court.
The Appeal Court is regulated under Article 35 to Article 54 of the 2014 Law on Court Organization. The Appeal Court is the second level of the trial chamber. The Appeal Court includes the Appeal Court in Phnom Penh and regional Appeal Courts to be established by a Royal Decree – see Law on Court Organization (2014), Art.35.
According to the law, the Appeal Court consists of the Criminal Chamber; Civil Chamber; Investigating Chamber; Commercial Chamber; Labor and other specialized Chambers to be created by Royal Decree when necessary. Each Chamber renders its judgment(s) autonomously within its jurisdictional competence, in the name of the Court of Appeal to which it belongs – see Law on Court Organization (2014), Art.37. Each Chamber, when hearing the cases, shall consist of three Judges, one of whom is the Chairman in accordance with the applicable procedures. In the event that a case is transferred back by the Supreme Court, the Court of Appeal shall adjudicate the case with five Judges all of whom should not have previously adjudicated on the same case – see Law on Court Organization (2014), Art Wiebe. The Appellate Court reviews both Ang Het (matters of facts) and Ang Chbab (matters of law) see Law on Court Organization (2014), Art.42. The Court of Appeal has the jurisdiction to adjudicate all cases within its territorial jurisdiction, except as otherwise provided by law to fall under the jurisdiction of other Courts – see Law on Court Organization (2014), Art 41.
The Criminal Chamber has competence to hear Uttoh Appeals against criminal judgments of the Courts of First Instance and other cases within its jurisdictional competence in accordance with the applicable provisions on criminal procedures- seeLaw on Court Organization (2014), Art 43.
The Civil Chamber has competence to hear Uttoh Appeals against civil judgment(s) of the Court of First Instance within its jurisdictional competence in accordance with the applicable provisions on civil procedures. The judgment is made by three Judges; one of whom is the Chairman – see Law on Court Organization (2014), Art 44.
The Investigating Chamber has competence to hear Uttoh Appeals against decisions of the invested Judge and other cases as determined by law within its jurisdictional competence in accordance with the applicable provisions on criminal procedures. The judgment is made by three Judges, one of whom is the Chairman – see Law on Court Organization (2014), Art 45.
The Commercial Chamber has competence to hear Uttoh Appeals against decisions of the Court of First Instance in commercial cases within its jurisdictional competence in accordance with the applicable provisions relating to commercial procedures. The judgment is made by three Judges, one of whom is the Chairman. The Commercial Chamber of the Court of Appeal, when hearing the cases, shall consist of three Judges and accompanied by two advisors, who are businessmen or who have knowledge in commercial laws and who are not the commercial advisors to the same case previously adjudicated before the Court of First Instance and the Court of Appeal. The judgment of the Commercial Chamber of the Appeal Court is made by three Judges after consultation with the commercial advisors. The commercial advisors do not carry out their duties permanently in the Commercial Chamber of the Court of Appeal. The commercial advisors carry out their functions at the invitation of the President of the Commercial Chamber of the Court of Appeal. The procedures of selecting and terms of reference for the commercial advisors are determined by a Sub-Decree upon the request of the Minister of Justice following the consultation with the Minister of Commerce – see Law on Court Organization (2014), Art 46.
The Labor Chamber has competence to hear Uttoh Appeals against decisions of the Court of First Instance in labor cases and other cases within its jurisdictional competence in accordance with the applicable provisions on labor procedures. The Labor Chamber of the Court of Appeal, when hearing the cases, shall consist of three Judges and are accompanied by two labor advisors, among whom one is the worker/employee and another is the employer; both of whom are not the labor advisors to the same case previously adjudicated before the Court of First Instance and the Court of Appeal. The decision of the Labor Chamber is made by three Judges, after consultation with the labor advisors. The labor advisor do not carry out his/her duties permanently in the Labor Chamber of the Court of Appeal. The labor advisors carry out his/her functions at the invitation of the President of the Labor Chamber of the Court of Appeal. The procedures of electing and the duties of the labor advisors are regulated by a Sub- Decree upon the request of the Minister of Justice following the consultation with the Minister in charge of labor – see Law on Court Organization (2014), Art 47.
The Joint Chamber may be created by the President of the Appeal Court to hear caseswhich fall within the competence of multiple chambers or if the case results in a controversial solution before different Chambers of the same Court of Appeal. The Joint Chamber is conducted at the invitation of the President of the Appeal Court. The Joint Chamber consists of at least five Judges and decision of the Joint Chamber is binding on all chambers to follow. The President of the Court of Appeal shall issue judgment in accordance with the decision of the Joint Chamber. The decision on the conflict of jurisdiction and conflict of law is the final decision – see Law on Court Organization (2014), Art 48.
The Supreme Court is regulated under Article 55 to Article 73 of the 2014 Law on Court Organization. The Supreme Court is the highest Court in Cambodia and located in the capital Phnom Penh – see Law on Court Organization (2014), Art.55. It has jurisdiction to adjudicate all cases within its territorial jurisdiction in accordance with applicable procedures – see Law on Court Organization (2014), Art 61. Moreover, recently, based on the Law on the Amendment of the Law on Political Party, the Supreme Court has jurisdiction, as a Court of First and Final Instance, over cases filed by the Ministry of Interior in case it finds that a political party has committed a serious offence.
According to the law, the Supreme Court consists of Criminal Chamber; Civil Chamber; Commercial Chamber; Labor and other specialized Chambers to be created by Royal Decree when necessary. Each Chamber renders its judgment(s) autonomously within its jurisdictional competence, in the name of the Supreme Court to which it belongs – see Law on Court Organization (2014), Art.57. Each Chamber, when hearing the cases, shall consist of fiveJudges, one of whom is the Chairman in accordance with the applicable procedures – see Law on Court Organization (2014), Art 59.
A Full Bench of the Supreme Court is presided over by the President of the Supreme Court and created by the ruling of the President of the Supreme Court and make decisions on behalf of the Supreme Court. The Full Bench is composed of at least 9 Justices and has authority to adjudicate (i) the second Satuk Appeal filed against the judgments of the Appeal Court in accordance with applicable procedures; (ii) Motions for review against the final judgments of the Courts of First Instance and final Judgments of the Higher Court in accordance with the applicable procedures, and (iii) Motion for review or retrial in case there is a request made by the King via the Minister of Justice for review and remake a decision on any cases – see Law on Court Organization (2014), Art.62.
The Joint Chamber may be created by ruling of the President of the Supreme Court to hear cases which fall within the competence of multiple chambers or if the case results in a controversial solution before different Chambers of the Supreme Court. The Joint Chamber is conducted at the invitation of the President of the Supreme Court. The Joint Chamber consists of at least nine Judges and decisions of the Joint Chamber is binding on all chambers to follow. The President of the Supreme Court shall issue judgments in accordance with the decision of the Joint Chamber. The decision on the conflict of jurisdiction and conflict of law is the final decision – see Law on Court Organization (2014), Art 63.
The Criminal Chamber has competence to hear Satuk Appeals against criminal judgments of the Appeal Court in accordance with the applicable provisions on criminal procedures – see Law on Court Organization (2014), Art 64.
The Civil Chamber has competence to hear Satuk Appeals against the judgment of the higher Court and objections against the ruling on civil cases of the Appeal Court, and Satuk Appeals against the judgments of the Courts of First Instance and other cases in accordance with the applicable provisions on civil procedures – see Law on Court Organization (2014), Art 65.
The Commercial Chamber has competence to hear Satuk Appeals against the judgment of the higher Court and objections against the ruling on commercial cases of the Appeal Court in accordance with the applicable provisions on civil procedures – see Law on Court Organization (2014), Art 66. However, presently, commercial cases are being adjudicated by the Civil Chamber.
The Labor Chamber has competence to hear Satuk Appeals against the judgment of the higher Court and objections against the ruling on labor cases of the Appeal Court in accordance with the applicable provisions on civil procedures – see Law on Court Organization (2014), Art 67. However, presently, labor cases are being adjudicated by the Civil Chamber.
According to the 2014 Law on Court Organization, each Court of all levels shall be attached with a Prosecutor’s Office. The Prosecutor’s Office at each Court of First Instance is called the Prosecution Department attached to the Court of First Instance. The Prosecutor’s Office at the Court of Appeal is called the Prosecution-General’s Office attached to the Court of Appeal. The Prosecutor’s Office at the Supreme Court is called the Prosecution-General’s Office attached to the Supreme Court. The representative(s) of the Prosecution shall be present in all Court hearings of criminal cases or other cases as determined by law – see Law on Court Organization (2014), Art.8.
As part of the effort to improve the Court administration in Cambodia, Article 10 of 2014 establishes an administrative body at each Court of all levels: However, the administration of the Courts and the prosecution departments are under the central administration of the Ministry of Justice. The administrative body at the Court of First Instance is called the Secretariat for Administration of the Court of First Instance and it is equal to a Department. The administrative body at the Court of Appeal is called the General Secretariat of Administration of the Court of Appeal and it is equal to General Department. The administrative body at the Supreme Court is called the General Secretariat of Administration of the Supreme Court and it is equal to General Department.
The budget of the Courts and the prosecution of the departments is regulated by a sub-decree and it is part of budget of the Ministry of Justice and it indicates in a separate budget package – see Law on Court Organization (2014), Art.79.
The Labor Chamber has competence to hear Satuk Appeals against the judgment of the higher Court and objections against the ruling on labor cases of the Appeal Courtin accordance with the applicable provisions on civil procedures – see Law on Court Organization (2014), Art 67. However, presently, labor cases are being adjudicated by the Civil Chamber.
The Military Court has jurisdiction only over military offenses. Military offenses are those involving military personnel, whether enlisted or conscripted, and which concern discipline within the armed forces or harm to military property – see UNTAC Criminal Code, Art. 11; see also LOAT, Art.9, § 2. All ordinary offenses committed by military personnel are tried in ordinary Courts (provincial/municipal Courts) – see LOAT, Art.9, § 3; see also UNTAC Criminal Code, Art.11. The Military Court consists of a Department of Prosecution, Department of a Chief Clerk, Department of Investigation, Department of Trial Judges, and a Secretariat (administrative office). All staff are military personnel such as a President, three Vice Presidents, member Judges who are appointed by the Ministry of National Defense, and military defenders who are appointed by the President of the Court after finishing training at the Ministry of Justice. According to Article 81 of the 2014 Law on Court Organization, provisions related to the Military Court in the existing laws remain valid and enforceable until there are new provisions. The Military Court located in Phnom Penh is administratively, financially and logistically under the Ministry of National Defense. All activities carried out by the Court such as statistics of investigations and trial activities must be reported to this Ministry.
The Supreme Council of Magistracy, which is a judicial organ ensuring the smooth functioning and the independence of the judiciary in Cambodia – see Cambodia. Constitution Art.132; See Royal Kram NS/RKM/0714/017 dated 16 July 2014 on the promulgation of the Law on the Organization and Functioning of the Supreme Council of Magistracy. It has the duty to decide and propose to the King on the appointment, transfer, leave of absence, delineation of duties, promotion and dismissal of Judges and prosecutors to all Courts – see Cambodia Constitution Art 134. It also takes disciplinary action against delinquent Judges – see Cambodia Constitution Art 133.
Despite having different responsibilities, Cambodian Judges and public prosecutors are both categorized as Chaokrom (magistrates). Chaokrom in its general sense is a title in the Cambodian Judicial system refers not only to Judges who sit at trial but also to those who hold the position of public prosecutors. A Judge involved in a trial or investigation is called Chaokrom Angkuy (Sitting Judge). A Judge holding a position in the prosecutor department (Ayakar) is called Chaokrom Chhor (Standing Judge) – For details see Royal Kram NS/RKM/0714/016 dated 16 July 2014 on the promulgation of the Statute of Judges and Prosecutors.
In addition to these Courts, there is a Constitutional Council (the “CC” – See Constitutional Council of Cambodia at http://www.ccc.gov.kh) . The CC has the duty to safeguard respect for the Constitution, interpret the Constitution and laws adopted by the National Assembly (and reviewed completely by the Senate), and has the right to receive and decide on disputes concerning the election of members of the National Assembly and election of members of the Senate – see Cambodia Constitution Art.136; Art.137, § 1; Art.141. The Constitution states that the CC consists of nine members with a nine-year mandate. 3 members are appointed by the King; 3 members by the National Assembly and 3 others appointed by SCM. After promulgation of any law, the King, the President of the Senate, the President of the National Assembly, the Prime Minister, 1/4 of the members of the Senate, 1/10 of the members of the National Assembly or the Courts may request the CC to review the constitutionality of that law. Khmer citizens shall have the right to appeal against the constitutionality of any law through their representative or President of National Assembly or member of the Senate or President of the Senate.
Judiciary
Cambodia
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The Cambodian legal system has evolved from unwritten customary law to statutory law. Scholars have classified the Cambodian legal development into two phases, namely Ancient Law and Modern Law (1). The former refers to the unwritten customary law from the Funan Period to the Angkor Period (2) whereas the latter refers to the codification of Cambodian laws from 1336 to the present (3). Before French colonization (1863), Cambodia was governed by customary rules (4) based on consensus. From 1863 to 1953, the Cambodian legal and judicial systems were based almost entirely on the French system. This system had a strong impact not merely on the law and legal education system but also on Cambodian lawyers, prosecutors, judges and bureaucrats until 1975. From April 1975 to 7 January 1979, the dictatorial proletariat regime of the Khmer Rouge eradicated the entire legal system, existing laws, judiciary and government’s institutions. Judges, lawyers and other legal professionals were the target of execution.
On January 7th, 1979 Cambodia was liberated by the United Front of National Salvation and Solidarity of Cambodia with Vietnamese Assistance from the Democratic Kampuchea known as the Khmer Rouge Regime. At that time the country faced a severe shortage of lawyers and laws. Michael Vickery (5) described this situation as a complete legal vacuum. The legal system that emerged during these years was heavily influenced by the Vietnamese system. Major legislation promulgated during this period, included Cambodia’s presently applicable contract law. During the period of the United Nations Transitional Authority in Cambodia (UNTAC) from 1991 to 1993, a number of laws, including criminal, and a judicial law and a press law, were enacted. Under the 1991 Paris Peace Agreement, UNTAC started its mission in Cambodia in order to help organize the general election and form a legitimate government. In cooperation with the Supreme National Council (SNC), a policy making body that represents the Cambodian four factions at home and abroad, these laws were adopted.
The current legal system is a hybrid legal system, which is an amalgamation of Cambodian customs, the French based legal system which is an influence from the French colonization period and the common law system which was an impact of foreign aid assistance to the legal and judicial reform in Cambodia The development partners that provided assistance to the legal and judicial reform in Cambodia were: AUSAID, ADB, CANADA, DANIDA, EU, Finland, FRANCE, ILO, JICA, GTZ, Netherland, OHCHR, SIDA, UNDP, UK, USAID, World Bank, (See Council for Legal and Judicial Reform, http://www.cljr.gov.kh/)
Sources:
(1) Royal University of Law and Economics and Cooperation and Cultural Activities of French Embassy, Introduction Au Droit Cambodgien, p.7
(2) Id, pp.8-15
(3) Id, pp.16-25
(4) KONG Phallack, Hok Sophea, Tep Navy, Oeurn Borarorth, The ASEAN Legal Systems, Faculty of Law and Economics, Phnom Penh, 1998, p.12
(5) Michael Vickery, Kampuchea: Politics, Economics and Society, London, 1986. There were only ten law graduates including 5 judges remained in the country (Proclamation on January 10, 1979). Vietnam occupied Cambodia from 1979-1989