Separating Powers, Taking Power

Sally Low: PhD student, School of Law, University of Melbourne,

Australia

Judge Srey of Pursat, 1896 (crouching, left)

Colonial legal legacies?

1. Post colonial vs Liberal views: – Colonial law was established and justified colonial

rule – authoritarian. – Liberal response: Colonial law operated in

contradictory ways. – Each example of colonisation was different.

2. Comparative Law: Can laws and institutions be transplanted?

3. Sokeang Au, ‘Cultural Insolubility’

Separation of powers?

• Judicial functions should be separate from Executive or administrative functions

• Judges are only judges. Administrative authorities are not judges.

• Different in Civil Law and Common Law

• Idea has changed over time

King

MinistersKing could refer cases appealed from Sala Domrout to Ministers

Sala DomroutCourt of Appeal. King could refer cases from lower courts to Sala Domrout

Oknha LuongSpecial judges. Could sit in Sala Chaufaiksrok.Monitored justice for the King

Sala Lukhun or Chau Krom SalaSerious cases & Other cases referred by Sala ChaufaisrokPresident = Prince or senior official

Sala Chaufaisrok(Province)

President = Governor. + 2 other judges or officials

Mésrok (village)Minor matters

Cambodian Courts up to 1897

1897-1903: Removing the King’s Judicial Power

‘His Majesty loves the French Government

very much …It asked Him for all the country’s

taxes; it asked Him for control over the Chinese

and Annamites, who have always been under royal authority, so

that they could submit to French tribunals; It is desirable that the

French Government also love His Majesty, …From the point of view

of Cambodian law, the master of the Kingdom must have authority

over the Cambodians, the inhabitants.’King Norodom, 18 Nov 1898, Quoted in Milton Osborne, The French Presence in Cochinchina and Cambodia: Rule and Response (1859-1905) , 243

1911: Codifying Cambodian Law?

• État civil (Civil Status: registration of births deaths and marriages etc) Part 1 of Code Civil

• Code Pénal, (Criminal Code)258/283 articles drawn from French law

• Code d’Instruction Criminelle et d’Organisation Judiciaire (Code of Criminal Investigation and Judicial Organisation)

• Joint drafting committees, 1905 - 1911

Sala VinichhayCourt of Cassation

 

Sala Outor(Court of Appeal)

 

Sala Khet (provincial court 1st instance)Provincial Governor (president), 2 Sophea (judges)

Sala Lukhun

(Court 1st instance Phnom Penh)1 Judge (president), 4 Sophea (judges), 1 greffier 

Tribunals of Simple PoliceMekhum (commune chiefs) judge petty offences, No appeal except to Court of Cassation. Attempt to conciliate civil disputes.

Cambodian Courts, 1912: Towards separation of powers

Who should head the Sala Vinichay?

‘under the regime of the King, my Father as well as under that of my Brother. …the highest jurisdiction of the Kingdom has always been presided over by a Prince.’

King Sisowath to Résident Supérieur Francois Baudoin, 17

June 1914

Sala VinichhayCourt of Cassation

 

Sala Outor(Court of Appeal)

 

Sala Khet (provincial court 1st instance)Provincial Governor (president), 2 Sophea (judges)

Sala Lukhun

(Court 1st instance Phnom Penh)1 Judge (president), 4 Sophea (judges), 1 greffier 

Tribunals of Simple PoliceMekhum (commune chiefs) judge petty offences, No appeal except to Court of Cassation. Attempt to conciliate civil disputes.

Cambodian Courts, 1912: Towards separation of powers

Testing the Sala Khet: Trials of 1916

• Thousands came to Phnom Penh to ask the King for relief from taxes and corvée

• ‘Tax strikes’ and rioting in some parts of the countryside. Often protested against local officials

• French response:– More soldiers– Changes to corvée and amnesty for demonstrators– Trials and punishments for ringleaders

Sala Khet of Peareang, 1916

• February 12, attack on Sala Khet. – Officials threatened– Shot and killed 8 people

• March 13, Sala Khet tried and condemned 16 men for inciting rebellion. (appealed to Sala Outor)

• Résident Bellan: ‘all desirable impartiality’• Résident Supérieur Baudoin: too many irregularities• King Sisowath: Shootings were punishment enough,

end the trials

Court Organisation 1922

Separate but controlled?

• ‘Control by the Protectorate of Cambodian Justice in the diverse jurisdictions of the Kingdom, will be regulated by specific measures taken by the French authority.’

(Art 65, Judicial Organisation of Cambodia, Royal Ordinance No 118, 14 September 1922,)

• Sylvestre: Sala Khet replaced because ‘the Protectorate found it impossible to control the decisions of the Cambodian courts strictly enough’.

Sylvestre, Le Cambodge Administratif, 1924, 460-1