Sources of laws in CAMBODIA

Sources of laws in Cambodia

 

This section examines the Sources of Law in Cambodia. The word “sources” in this context mean origins of legal rules from relevant authorities in Cambodia and other sources recognized by laws in force, whereas the word “Law” in Cambodian context can mean domestic law and international law in accordance with the decision of the Constitutional Council (6). In accordance with the Cambodian laws and regulations as well as the current practice, the Sources of Law in Cambodia can be classified into primary sources which mean all legal instruments of the competent authorities of the State (7). Article 91 (new) of the Constitution states: The members of the Senate, the members of the National Assembly, and the Prime Minister have the right to initiate legislation. The deputies shall have the right to propose any amendments to the laws, but the proposals shall be unacceptable if they aim at reducing public income or increasing the burden on the people.

 

Sources of Law in Cambodia are also derived from Secondary sources which mean customs, traditions, consciences and equity, judicial decisions, arbitral awards, and doctrines. In civil cases, when the law does not state explicitly or when there is a gap which the law does not stipulate provisions concerning any case, the adjudicating Courts can proceed to hearings by basing on customs, traditions, conscience and equity – see Law on Court Organization (1993), Art.4. However, this provision no longer exists under the Law on Court Organization (2014) promulgated by Royal Kram No.NS/RKM/0714/015 dated July 16, 2014. Article 91 of the Law on Court Organization does not abrogate the Law on Court Organization (1993), it is just states that any provisions of the said law which are contrary to the current law is null and void. In the current practice, hardly any Cambodian Court judgments refer to precedents except the new hybrid Court, the Extraordinary Chamber within the Court of Cambodia (for detailsabout the ECCC see http://www.eccc.gov.kh).However precedents on arbitral awards are well developed by the Arbitration Council, a quasi tribunal body that has jurisdiction over collective labor disputes – see Arbitration Council at http://www.arbitrationcouncil.org/en/ac-decisions/arbitral-decisions. Whereas for legal doctrines on whether they are part of Cambodian laws and what they are,  requires a thorough study in order to determine whether it is Cambodian or if it originates from other jurisdictions.

 

Legal scholars who study Cambodian laws would identify the following legal rules deriving from competent authorities in Cambodian as primary sources of law:

The Constitution

The Constitution is the supreme law of the Kingdom of Cambodia. All laws and decisions made by state institution must be in strict conformity with the Constitution – see Constitution, Art 152-new-2 (1993 as amended in 1999 & 2014).

Laws (Chbab)

A law is adopted by the National Assembly and the Senate, and promulgated by the King or the acting Head of State – see Constitution, Art 28-new (1993 as amended in 1994 and 1999).

Royal Decrees (Preah Reach Kret)

A Royal decree is an executive regulation proposed by the Head of the Government or other head of state institution as permitted by law and signed by the King or the acting Head of State – see Constitution, Art 28-new (1993 as amended in 1994 and 1999).

Sub-Decrees (Anu-Kret) 

A sub-decree is an executive regulation and usually prepared by relevant ministries, adopted by the Council of Ministers and signed by the Prime Minister – see Law on the Organization and Functioning of the Council of Ministers, Art 13 (1994).

Proclamations (Prakas) 

A proclamation is an executive regulation  at the ministerial levels. It is prepared by the relevant ministries and signed by the relevant Minister(s) – see Law on the Organization and Functioning of the Council of Ministers, Art 29 (1994).

Decision (Sech Kdei Samrach) 

Decision is an executive regulation made by the Prime Minister, and relevant ministers – see Law on the Organization and Functioning of the Council of Ministers, Art 13 (1994), See also Sub-decrees on Organizations and Functioning of Ministries. Decision is also stated in Article 150 of the Constitution. However, decision is not defined by law. In practice, there are different types of decisions, such as decision made by the Constitution Council, decision made by the Prime Minister, and decision made by relevant ministers and so on. Decision of the Constitutional Council is considered a final and binding decision. Therefore, it has supremacy that means all laws and regulations must strictly conform to the decision of the Constitutional Council.

Circular (Sarachor)

A circular is an administrative instruction which is used to clarify works and affairs of the ministries and it is signed by the Prime Minister and relevant ministers - Law on the Organization and Functioning of the Council of Ministers, Art 13, Art.29 (1994).

Bylaw (Deika) 

Bylaw is a legal rule approved by the Councils of Sub-National Levels. The term ‘ Council of Sub-National Levels” in this text mean the Capital Council, Provincial Councils, Municipal Councils, Districts Councils, Khans Councils, Sangkat Councils and Commune Councils. These Councils have a legislative power to issue bylaws (Deikas) – see The Law on The Administration and Management of Commune/Sangkat, Art 48 (2001), and Law on Administrative Management of the Capital, Provinces, Municipalities, Districts, and Khans, Art 32 and Art 53- Art 61 (2008).

International law

According to thedecision of the Constitutional Council (8),international law is considered a source of Cambodian Law. All international treaties and conventions can become Cambodian law unless it is signed and ratified by the King after a vote of approval by the National Assembly and the Senate – see Constitution, Art 26-new (1993). Based on this text, one can argue that Cambodia adopts a dualist approach (9) because all international treaties and conventions required  approval from the Cambodian Parliament. However, Article 31 of the Constitution 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 – see Constitution, Art 31 (1993). Based on this text, it seems that Cambodia adopts a monist approach (10) because the Constitution recognizes all these international instruments.

 

 

Sources:

(6) The Constitutional Council, CASE Nº131/003/2007 Of June 26, 2007, Decision Nº 092/003/2007 CC.D Of July 10, 2007

(7) See Constitution, Article 91 (New) (1993 as amended in 1999), and Law on the Organization and Functioning of the Council of Ministers, Art 13, Art 28, Art.29 (1994), The Law on The Administration and Management of Commune/Sangkat, Art 48 (2001), and Law on Administrative Management of the Capital, Provinces, Municipalities, Districts, and Khans, Art 32 and Art 53- Art 61 (2008). Constitution, Article 91 (New) (1993 as amended in 1999), and Law on the Organization and Functioning of the Council of Ministers, art 13, Art 28, Art.29 (1994), The Law on The Administration and Management of Commune/Sangkat, Art 48 (2001), and Law on Administrative Management of the Capital, Provinces, Municipalities, Districts, and Khans, Art 32 and Art 53- Art 61 (2008).

(8) The Constitutional Council, CASE Nº131/003/2007 Of June 26, 2007, Decision Nº 092/003/2007 CC.D Of July 10, 2007

(9) Rebecca M.M. Wallace, M.A., LL.B., Ph.D. International Law, London. Sweet & Maxwell.200, p.36.  According to the book, if a State is dualistic, international law will only become part of its municipal law if it has been expressly adopted as such by a way of legislative act.

(10) Rebecca M.M. Wallace, M.A., LL.B., Ph.D. International Law, London. Sweet & Maxwell.200, p.36