The Current Cambodian Legal System’s Connection to the Khmer Rouge

By Caleb Siebeneck.

In April 1975, Pol Pot, the leader of the Khmer Rouge, overtook Cambodia and established a new country called Democratic Kampuchea.[1] Pol Pot and the Khmer rouge embarked on mass genocide and began to destroy current Cambodian society as it was known, and one of Pol Pot’s earliest endeavors was evacuating all major cities, moving people out to countryside labor camps, and executing all educated Cambodians.[2] Part of Pol Pot’s attack on civil society and education included destroying all legal structures in Cambodia, like courts, firms, legal resources, etc., as well as executing essentially all lawyers and legal intellectuals in the country.[3] While many may think, now, that this was simply a horrific time in history that has been long-since resolved, the effects of the Khmer Rogue’s destruction of Cambodia’s legal system and legal profession is still affecting Cambodia and its legal landscape today.[4] Cambodia’s current de facto one-party state, marked by illegitimate elections, nepotism, and legal sanctions against dissent and opposition, is strongly tied to Cambodia’s corrupt and underdeveloped legal and judicial systems, which are direct results of the Khmer Rouge’s genocide in the late 1970s.[5]

Prior to Pol Pot’s Khmer Rouge regime, Cambodia had a robust legal system based on the French system, which “had a strong impact not merely on the law and legal education system but also on Cambodian lawyers, prosecutors, judges and bureaucrats.”[6] When Pol Pot’s Khmer Rouge took over, he “eradicated the entire legal system, existing laws, the judiciary, and government institutions.”[7] Once the Khmer Rogue was ousted and the new Cambodian government installed in the late 1970s and early 1980s, a “legal vacuum” existed in the country.[8]

In the early-mid 1990s, the government of Cambodia, already in existence and with strong-man leaders like Hun Sen (still a current de-facto leader of Cambodia) already in power[9], began to build a new legal and judicial system.[10] From 1991 to 1993 Cambodia passed many laws that formed the basis of the legal and judicial system.[11] The Cambodian Legislature established the Bar Association of the Kingdom of Cambodia (BAKC) in 1995, essentially establishing the entire legal profession and parameters for participating in it.[12] In 1996, the BAKC finalized, with heavy influence from the legislature, the Code of  Ethics for lawyers in the country, establishing the restrictions and allowances of legal practice in the newly created Cambodian legal system.[13] In the backdrop of all this development was strong-man leader Hun Sen, who already prime minister of Cambodia in the early 1990s while these laws were being passed and who remained in power for nearly 40 years, until last year when his son was “elected” as the next prime minister of Cambodia.[14] By already being in power as Prime Minister, at the time, of a state “with no civil service, no courts or judges, no police, no schools and no hospitals . . . [Hun Sen could] refashion[] the entire Cambodian state with all institutions and officials loyal to the party,” including the ability to shape the newly created judicial and legal system as it was developing, which, nearly three decades later, he uses to remain in power.[15]

Aerial view of Phnom Penh, Cambodia’s capital city. Image courtesy of Kontren.com.

Hun Sen’s influence over the development of the legal system and profession in the 1990s has paid dividends for him because, today, Cambodian courts are understood to be under the control and direct influence of Hun Sen’s (and his son’s) government.[16] Continued judicial corruption and a lack of development persists despite “attempts” to “reform.”[17] Initiatives to reform Cambodian legal and judicial systems came as early as 1993.[18] Proposed reforms included a legal and judicial reform strategy, plans of action for implementation of the strategy, values documents, vision statements, and interventions (actions to take) to achieve the reforms.[19] Despite this, no progress in implementation happened between 1993 and 2009, which allows a reasonable inference that in the years since 2009, little to no additional progress has ensued.[20] Hun Sen influenced empty and purely aspirational reform initiatives while delaying any implementation in order to legitimize a corrupt legal system and profession, which they oversaw the development of in the 1990s.[21]

A recent example of Cambodia’s one-party state and its leaders exercising influence over the country’s weak and underdeveloped legal and judicial systems is the 2023 Cambodian elections.[22] With the July 2023 elections being the last step before Hun Sen transitioned power to his son Hun Manet (though, Hun Sen is still “pulls the strings” behind the scenes as President of the Senate)[23], Hun Sen utilized the judicial and legal institutions of Cambodia to neutralize the only opposition party, the Candlelight Party, before it could gain support.[24] In May 2023, the Cambodian National Election Committee (NEC) disqualified the Candlelight Party because the NEC alleged the party failed to submit a proper registration document.[25] Hun Sen’s circumstantial mark of influence over this decision comes from the fact that the party claims this registration document was “confiscated  by authorities during a raid” in 2017.[26] Additionally, the NEC allowed the party to run in local elections in 2022 without this document, indicating that Hun Sen and the ruling party only utilized judicial influence once the party became a viable threat.[27] The Constitutional Council, a judicial body tasked with constitutional interpretation and disputes regarding National Assembly laws[28], upheld the decision stating, “the NEC decision has complied with the Constitution.”[29] Hun Sen and the Cambodian People’s Party won large victories in the election as they won every seat except five, in the parliament, which further secured Hun Sen’s grasp of power prior to transiting facial control to his son.[30] Ultimately, this outcome resulted from another example of Hun Sen and the ruling party’s influence over an underdeveloped and corrupt judicial and legal system, which can be directly tied the Khmer Rouge’s genocide in the late 1970s.[31]

[1] Thomas Clayton, Building the New Cambodia: Educational Destruction and Construction under the Khmer Rouge, 1975-1979, 38 History of Education Quarterly 1, 1-2 (1998), https://www-jstor-org.proxy2.cl.msu.edu/stable/369662?searchText=Khmer+rouge&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3DKhmer%2Brouge&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&refreqid=fastly-default%3Ab91ce25eb227035f849f7266ce49a828&seq=1.

[2] Id.

[3] Kim Falt et al., STATUTORY PROPOSALS -- Law of the Bar: Kingdom of Cambodia (Statutory Underpinnings of the Development of an Independent Bar in Cambodia: Code of Ethics; Internal Regulations), Cal. Western Int’l L. J.) 357, 357 (1997), STATUTORY PROPOSALS -- Law of the Bar: Kingdom of Cambodia (Statutory Underpinnings of the Development of an Independent Bar in Cambodia: Code of Ethics; Internal Regulations) (cwsl.edu).

[4] See generally Olivia Enos, Holding Cambodia Accountable for Its Descent into One-Party Rule, The Heritage Foundation (Aug. 7, 2018), https://www.heritage.org/asia/report/holding-cambodia-accountable-its-descent-one-party-rule (noting the effects of the Khmer Rouge in Cambodia’s current one-party rule, today).

[5] See Falt et al., supra note 3, at 357; See generally Id. (describing aspects of Cambodia’s current one-party state).

[6]  Kong Phallack, Overview of the Cambodian Legal and Judicial System and Recent Efforts at Legal and Judicial Reform, 7-8, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https:/www.khmerlex.com/Site/images/library_file/10-Overview%20of%20the%20Cambodian%20Legal%20and%20Judicial.pdf.

[7] Id.

[8] Id.

[9] See generally David Hutt, Hun Sen’s art of giving, South East Asian Globe, (Feb. 4, 2020), https://southeastasiaglobe.com/hun-sen-35-years-in-power/ (stating Hun Sen was named PM in 1985 under the People’s Republic of Kampuchea and officially elected by official parliament of the current iteration of the country in 1993).

[10] See Phallack, supra note 6, at 8.

[11] See Phallack, supra note 6, at 8.

[12] See Falt et al., supra note 3, at 367.

[13] Id.

[14] See generally Hutt, supra note 9 (stating Hun Sen was named PM in 1985 under the eople’s Republic of Kampuchea and officially elected by official parliament of the current iteration of the country in 1993); Cambodia parliament elects Hun Sen’s son, Hun Manet, as new PM, Aljazeera (Aug. 22, 2023), https://www.aljazeera.com/news/2023/8/22/cambodian-parliamentarians-elect-hun-sens-son-hun-manet-as-new-pm.

[15] See Hutt, supra note 9.

[16]  See Cambodia disqualifies sole credible opposition Candlelight Party ahead of July election, News (May 15, 2023), https://www.abc.net.au/news/2023-05-16/cambodia-disqualifies-sole-opposition-party-ahead-of-election/102350226.

[17] See Phallack, supra note 6, at 17-20.

[18] Id. at 17.

[19]Id. at 17-20.

[20] Id. at 21.

[21] See generally Id. at 17-21 (stating the Cambodian government initiated ideas of legal reform in the 1990s, drafted strategy, values, and implementation documents, and failed to make any progress towards the “Action Plan” as of 2009).

[22] See generally Richard Finney and Joshua Lipes, Cambodian Courts Show Pattern of Political Influence, Double Standards of Justice, RFA (May 21, 2021),  https://www.rfa.org/english/news/cambodia/justice-05212021193839.html (Noting continued issues of “state control of the judiciary,” “political interference in cases,” and widespread corruption among legal officials); see also Cambodia's ruling party says it won a landslide victory in elections, Reuters (July 24, 2023), https://www.reuters.com/world/us-pauses-some-aid-imposes-visa-bans-after-neither-free-nor-fair-cambodia-2023-07-24/.

[23] See Cambodia's ruling party says it won a landslide victory in elections, supra note 22.

[24] Cambodia’s opposition disqualified from election, appeal fails, Aljazeera (May 25, 2023), https://www.aljazeera.com/news/2023/5/25/cambodias-opposition-disqualified-from-election-appeal-fails.

[25] Constitutional Council Upholds Ban on Candlelight Party in 2023 National Election, LICADHO (May 25, 2023), https://www.licadho-cambodia.org/flashnews.php?perm=333#:~:text=The%20Constitutional%20Council%20today%20upheld%20a%20decision%20barring,from%20the%20polls%20over%20a%20missing%20registration%20document.

[26] Id.

[27] Id.  

[28] Phallack, supra note 6, at 11-12.

[29] Cambodia’s opposition disqualified from election, appeal fails, supra note 24.

[30] Cambodia's ruling party says it won a landslide victory in elections, supra note 22.

[31] See Falt et al., supra note 3, at 357; See generally Enos, supra, note 4.