A fork in the road: a civil rights case study of Cambodia and Somaliland

Written by Alec Thompson

Although vastly culturally and geographically different, Cambodia and Somaliland share similar legal histories. Cambodia’s legal system was destroyed by the radical socialist revolutionaries of the Khmer Rouge, leaving only a handful of legal professionals alive. Likewise Somaliland’s courts, though not damaged to the same extent, were effectively erased by Siad Barre’s military junta.1 The legal systems of these two nations are therefore relatively young, having been built effectively from scratch in the wake of two civil wars. Yet while Somaliland has just passed its first legislation banning rape,2 Cambodia’s Judiciary instead recently banned the opposition party.3

What has led to these nations diverging so significantly in their protection of civil rights? To provide an initial answer to this question there will be a brief overview of legal history and contemporary law, followed by some academic analysis.

History

Cambodia

The roots of Cambodia’s legal system stretch back to the ancient law of the 9th century, with a thread of French Civil law from the French Protectorate. After several attempts at democratic rule, the emergent Republic of Cambodia drafted the first liberal constitution in 1972, which won 97.5% of the public vote and guaranteed a presidential system. However, any hope of this constitution taking effect was snuffed out by the United States’ bombing campaigns ‘Operation Menu’ and ‘Operation Freedom Deal’. By 1970, the majority of public infrastructure had been destroyed and the Government was severely destabilised.4 As a consequence, the Khmer Rouge faction to take control in 1975. During their regime, the Khmer Rouge savaged the legal system, killing the majority of legal professionals5 and leaving in effect the world’s most lawless state.6 This continued throughout the Vietnamese occupation and Cambodian civil war, eventually being addressed once the UN stepped in after the Paris Agreement.

The centrepiece of the United Nations Transitional Authority in Cambodia (UNTAC) was a brand new Constitution. Drafted by a constituent assembly, it established a constitutional monarchy and affirmed a commitment to fundamental rights. Realising you can’t have a Constitution without courts, the Constitutional Council and Supreme Court were also set up – the members of which are elected by the Supreme Council of Magistracy.7 However, whilst the new Constitution affirms the separation of powers, rule of law and pluralism, the Human Rights Watch and UN special Rapporteur has reported systemic failings for almost two decades.8

Somaliland

Somaliland’s legal system, like Cambodia’s, is also an amalgamated creation from various different sources. Before British colonisation, customary law (Xeer) and Shari’a law were the dominant modes. The British administration added in some common law and statutes, as well as the Indian penal code for good measure. Once Somaliland unified with Somalia in 1960, Italian continental law was added, leading to a unique fusion of law. Unfortunately, like Cambodia, the legal system was also violently uprooted by extremist socialist revolutionaries, this time under Siad Barre in 1979. His military Junta assigned all judicial functions to the Revolutionary Council, abolishing the Supreme and Constitutional courts. Although the legal structures were not totally destroyed, they were reduced to the extent that after the fall of the regime in 1991 the judiciary had to be virtually recreated.9

Six of Somalia’s states, under local authorities led by the SNM party, broke away from Somalia the same year, reinstating the borders of the old colonial state of Somaliland. The Grand National Reconciliation Conference saw the drafting of a new constitution, the Boroma Charter, followed by an even better provisional constitution ratified by public referendum in 2001. This is the State of Somaliland’s current constitution,10 and was developed from previous versions dating back to the 1960s. It affirms Shari’a law, various civil rights (insofar as they do not conflict with Shari’a law), a democratic presidential government, and an independent state judiciary. Although Somaliland’s courts are not immune from interference from the central government, there have been large strides in protecting rights and developing more effective checks on the executive.

Modern Law

While on paper appearing to be a paragon of western liberal ideals, Cambodia’s judiciary is mired in corruption and executive impunity. The UN special rapporteur has noted the Cambodian Supreme Court and Constitutional Court have fallen effectively under the control of Hun Sen and his party, the Cambodian People’s Party (CPP).11 This has led to the courts legitimising the human rights abuses of the CPP and suppressing civil discontent. Criminal trials are frequently used to crack down on critics of the Government and free press,12 whilst police officers and other state officials are rarely prosecuted. A particularly shocking example of impunity is the killing of Chut Wutty, an environmental activist, after he protested illegal logging connected to the Government. Although an Investigatory Committee was set up, it consisted solely of CPP members who had a history of denying rights abuses. No one served any jail time and no forensic evidence was provided, a common failing in criminal procedures.13

Part of this problem lies in external support for Hun Sen and the CPP: the USA provides security training and weapons to the CPP, whilst Cambodian military leaders responsible for various atrocities,14 such as Tea Banh and Hok Lundy have been awarded medals.15 Meanwhile, China (Cambodia’s largest ally) provides loans to prop up Hun Sen’s regime without looking too closely at human rights abuses.16 These contribute to a legitimisation of the regime’s crimes, thus undermining any attempts to reform the judiciary.

Somaliland faces similar issues when it comes to the separation of powers; the state court system lacks funding and there is no legal system for challenging rights abuses. Furthermore, corruption is common and the President often resorts to Security Committees17 to carry out arrests. Human Rights Watch has criticised the judiciary especially for its lack of training, with only three of the one hundred18 Judges possessing Law degrees, and the Constitutional court’s hesitancy to rule on politically controversial matters. Nonetheless, the widespread abuse of rights common to neighbouring countries has been minimised through the traditional legal system. Although not meeting Western standards of the rule of law, the integration of Shari’a and Customary law into the Constitution has provided effective solutions to constitutional crises. For instance, the traditional clan leaders, the Guurti, have managed to form a check on the Government in the absence of an empowered supreme court. A homely comparison would be with the UK’s house of Lords, another traditional institution which is able provide additional political scrutiny. Similarly, in a more recent case, the ban on female genital mutilation19 was given authority and efficacy by the Shari’a courts. Ayan Mahamoud, Somaliland’s commonwealth representative, notes how although the involvement of the religious leaders (by issuing fatwa) is undesirable in the long-term, it ensures young girls are actually protected.

Constitutional Theory

There are two explanations for why these countries have diverged. Firstly, it is undeniable the state of Cambodia’s legal system was significantly worse than Somaliland’s post-civil war. Not only had the physical legal structures been destroyed, but the legal culture had been systematically removed. Secondly, the Constitution drafted under UNTAC, whilst a shining example of liberalism, lacked practical foundations. In contrast, Somaliland’s constitution – though lacking in many ways – is more pragmatically successful, recognising that it takes time for democracy to fully develop.

Dr Ruth Gordon argues constitutions rarely succeed unless they are rooted in the cultural and social history of the country.20 Rather than viewing them as static documents, a constitution can be seen as something that grows organically as people push for reform over time. Somaliland’s constitution is a clear example, relying and using its traditional legal system to help bridge the gap left by the civil war. The Horizon Institute stresses the importance of the Constitutional acceptance of Xeer in particular, shoring up the fledgling state courts and providing an effective network of dispute resolution.21 Again, though by Western standards it is inadequate in terms of true impartiality, it is essential in preventing clan feuds. This can be contrasted to other sub-Saharan nations, like Sudan and Somalia, whose constitutions have either collapsed or become irrelevant. Isaac Dore,22 a theorist on Constitutions, argues the main reason many post-colonial constitutions, often provided by western aid, have become ineffective is their lack of ties to traditional social structures. As a by-product of its lack of western influence, Somaliland’s constitution, and in turn its surprisingly robust democracy, has avoided this fate.23

In contrast, although it is undeniable UNTAC achieved initial success, the Cambodian Constitution it helped draft had a number of flaws. Firstly, there is a lack of entrenchment or protection; subsequent amendments have been effected without any public debate on a de facto basis. So whilst the Constitution was produced by a democratically elected constituent assembly, it has quickly lost popular legitimacy. Furthermore, though the Constitution created a series of new courts, Cambodia’s legal professionals were left very poorly trained, contributing to a virtually non-existent rule of law.24 Subsequent attempts at reform suggested by the UN’s Universal Periodic Review have been largely ignored, with only four out of 138 recommendations being implemented. What this suggests is a fatal divide between theory and practice: whilst possessing the framework for civil rights (the International Declaration of Human Rights even being ratified), the Cambodian people were left without an effective Judiciary to uphold them. Basil Fernando, a senior official with UNTAC’s Human Rights Component summarises it nicely: “Law is implemented by human beings… [The new constitution] can be the most beautiful piece of paper in the world but it is still just a piece of paper unless people understand it and it is our role to make them appreciate that,”.25

Several important practical gaps were also left in the Constitution regarding the separation of powers. Although the Supreme Court of the Magistracy was set up to choose judicial appointments, the Ministry of Justice was left to administer the courts. This includes sending out circulars,26 which are treated by Judges as law, and the MOJ’s power over of funding (which totals around 0.37% of the public purse). In all but law the MOJ is given practical control of the judicial system. In addition, many constitutional fundamentals are blatantly ignored by legislators. Art 51 of the 1994 Law on the Common Statutes for Civil Servants protects civil servants (which in practice includes the military) from prosecution unless consent is given by the Council of Ministers. Prosecutors note how this has led to erosion of the principle of equality before the law: an empty phrase when officials can commit murder without fear of legal ramifications.27 This has contributed to perhaps the greatest damage to the rule of law; the worsening of the Cambodian people’s legal nihilism, left over from the People’s Courts of the Khmer Rouge and Vietnamese regime’s military courts. The criminal law is treated as a total sham, relying on a corrupt confessional system,28 and there is little respect on the part of the Judges for judicial separation from the executive.29

Though facing similar problems regarding judicial independence, Somaliland has one great advantage: the people are connected to their country’s legal system. Organisations like SOLLA (Somaliland’s Lawyer Association) and the Law faculty at the University of Hargeisa have been pushing for greater legal training,30 with the law course being one of the most popular in the country. As Dr Gordon has argued, if the Constitution is seen as curdin’,31 or young and growing, rather than simply failed, the survival and continued desire for the Rule of Law is a great success.

Seth Kaplan, an writer in international studies, also advocates this bottom-up approach, noting how it has produced a people which have a strong belief in their nation.32 Though he concedes the Judicial system is currently flawed, he argues there have been a series of large achievements: the constitutional referendum, the acceptance of the opposition in 2003 of President’s Riyale’s victory after their Judicial appeal failed, and the slow, but definite, development of the legal system. The reverse top-down approach in Cambodia has provided the opposite result. Instead of accepting the constitution, the majority of new lawyers, taken mainly from the remaining middle class, returned to the old practices in the communist days.33 While it is true the Khmer Rouge did immense damage, the UN’s approach in repairing it reveals the risk of ignoring the practical side of constitutionalism. Simply put: a constitution is encapsulated first and foremost in the everyday operation of the court. Without trained, competent lawyers and judges constitutions are meaningless.

 

  1. https://apd-somaliland.org/wp-content/uploads/2014/12/JUDICIARY-REPORT-FINAL.pdf
  2. https://www.theguardian.com/global-development/2018/jan/11/somaliland-adopts-legislation-outlawing-rape
  3. https://www.reuters.com/article/us-cambodia-politics/cambodias-main-opposition-party-dissolved-by-supreme-court-idUSKBN1DG1BO
  4. William Shawcross, Sideshow: Kissinger, Nixon, and the Destruction of Cambodia. New York: Washington Square press, 1979, pps. 23–24.
  5. It is estimated only four of the previous 500 Judges were left alive.
  6. David P. Chandler, The Tragedy of Cambodian History. Politics, War, and Revolution since 1945, Chiang Mai 1991 (Silkworm Books), p. 72
  7. http://www.wipo.int/edocs/lexdocs/laws/en/kh/kh009en.pdf
  8. http://ap.ohchr.org/documents/dpage_e.aspx?m=107
  9. http://www.somalilandlaw.com/SL_CONSTITUTION_paper_0608.pdf
  10. http://www.somalilandlaw.com/body_somaliland_constitution.htm
  11. https://www.hrw.org/report/2012/11/13/tell-them-i-want-kill-them/two-decades-impunity-hun-sens-cambodia#d5983e
  12. https://www.irishtimes.com/news/world/asia-pacific/under-assault-cambodia-s-independent-press-fights-for-life-1.3315476
  13. LICADHO, “Conclusion of Two Cases Related to Chut Wutty Slaying Leave More Questions Than Answers,” October 22, 2012.
  14. https://www.theguardian.com/world/2008/nov/12/cambodia
  15. Ibid., 8
  16. http://www.scmp.com/news/china/diplomacy-defence/article/2128118/china-pledges-more-investment-cambodia-phnom-penh
  17. Ibid.
  18. https://www.hrw.org/report/2009/07/13/hostages-peace/threats-human-rights-and-democracy-somaliland#0e7a7c
  19. https://www.theguardian.com/global-development/2018/feb/23/somaliland-ban-female-genital-mutilation-activists-fear-law-will-fall-short
  20. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1483&context=jcl
  21. https://www.thehorizoninstitute.org/usr/documents/publications/document_url/9/the-state-of-the-judiciary-in-somaliland-june-2016-report.pdf
  22. Isaac I. Dore, Constitutionalism and the Post-Colonial State in Africa: a Rawlsian Approach, St Louis U.L.J 1301, 1303-1305 (1997)
  23. Ruth Gordon, Growing Constitutions, 1 U. Pa. J. Const. L. 528, 531-532 (1999)
  24. Human Rights Watch interview with Prum Sokha, secretary of state, Ministry of Interior, Phnom Penh, April 9, 1999.
  25. https://www.phnompenhpost.com/national/resurrecting-cambodias-judicial-tradition
  26. https://www.hrw.org/reports/1999/cambo2/Cambo996-02.htm#P276_45068
  27. Human Rights Watch interview with official from Kandal provincial court, Ta Khmau, March 16, 1999.
  28. https://www.hrw.org/news/2012/12/27/cambodia-sham-court-cases-undermine-rights
  29. https://www.hrw.org/reports/1999/cambo2/Cambo996-02.htm#P276_45068 ;  https://www.phnompenhpost.com/national/resurrecting-cambodias-judicial-tradition
  30. https://www.counselmagazine.co.uk/articles/law-unrecognised-state
  31. Ibid, 6
  32. http://www.sethkaplan.org/doc/JOD,%20Democratization%20in%20Africa%20chapter%203.10.pdf
  33. Human Rights Watch interview with court official, Takeo, April 8, 1999.