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Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
Sally Low Separating Power Taking Control July 2014
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Sally Low Separating Power Taking Control July 2014

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Sally Low Separating Power Taking Control July 2014 …

Sally Low Separating Power Taking Control July 2014
Center for Khmer Studies Lecture Series

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  • Europeans assumption that European civilisation was more advanced and more enlightened than anywhere else in the world. In exchange for economic and political exploitation, they were bringing ‘gifts’ of Western Civilisation.
    Liberal and Marxist scholars said colonisation was exploitative but it did bring some advances, roads, laws, courts, institutions of a modern nation state, some economic development.
    Post colonial critique: ‘script for governance’ created framework for non-democratic elites to continue the kind of exploitation that colonisers had imposed.

    Comparative law – culturally and historically developed.

    Sokeang Au, ‘cultural insolubility’

    Separation of powers, 1901-1922. Case study


  • Legal/political theory

    Civil law / Common law differences. Very important principle French law.

    Evolved in France during 20th Century.
  • King at the head of the judicial system
    French considered this was theoretical. It no longer worked in this manner
    French commentators viewed judicial system as corrupt
  • Some changes to courts during King Norodom’s rule: Established French courts – at first just French citizens, gradually expanded their jurisdiction.
    1884 Considered abolishing Cambodian Courts all together
    1897 Council of Ministers to be chaired by French Résident Supérieur
    Norodom protested over the removal of Minister of Justice Ouk and Judge Nguon who were loyal to him
    1903, council of Ministers took on the judicial functions of a Court of Cassation
  • Process of codification. Replacing the Kram – very significant
    Joint drafting committees but French led. Much French substance, particularly in Criminal Code and Code of Criminal Investigation and Judicial Organisation
    Code of Criminal Investigation and Judicial Organisation most important for the story of separation of powers. Re-organised the Cambodian courts.
  • New Court structure from 1912 onwards.
    Sala Vinichay to take over the judicial role of the Council of Ministers
    CoM resented loss of their judicial role. However, King had agreed to the change. He later wrote that Résident Supérier, Outrey had promised him that the Sala Vinichay would be headed by a Prince. Prince Maghavan.
    1914 Prince Maghaven died
    Baoudoin: Wanted to replace him with a French judge because only a French judge could sufficiently understand cassation
    CoM pointed out that would be in violation of the new code. So Mr Keth was appointed, (trusted and respected by French), but only made acting President of the court for several years because not a prince and King Sisowath was displeased.
  • Transcript

    • 1. Separating Powers, Taking Power Sally Low: PhD student, School of Law, University of Melbourne, Australia
    • 2. Judge Srey of Pursat, 1896 (crouching, left)
    • 3. 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’
    • 4. 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
    • 5. King Ministers King could refer cases appealed from Sala Domrout to Ministers Sala Domrout Court of Appeal. King could refer cases from lower courts to Sala Domrout Oknha Luong Special judges. Could sit in Sala Chaufaiksrok. Monitored justice for the King Sala Lukhun or Chau Krom Sala Serious cases & Other cases referred by Sala Chaufaisrok President = Prince or senior official Sala Chaufaisrok (Province) President = Governor. + 2 other judges or officials Mésrok (village) Minor matters Cambodian Courts up to 1897
    • 6. 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
    • 7. 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
    • 8. Sala Vinichhay Court 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 Police Mekhum (commune chiefs) judge petty offences, No appeal except to Court of Cassation. Attempt to conciliate civil disputes. Cambodian Courts, 1912: Towards separation of powers
    • 9. 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
    • 10. Sala Vinichhay Court 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 Police Mekhum (commune chiefs) judge petty offences, No appeal except to Court of Cassation. Attempt to conciliate civil disputes. Cambodian Courts, 1912: Towards separation of powers
    • 11. 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
    • 12. 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
    • 13. Sala Outor (Court of Appeal) Sala Dambaung (13 Courts of First Instance) Judges only. No role for Administrators Sala Lahouh (Justice of the Peace) · Magistrate Sala Vinichhay (Court of Annulation) Sala Okret (Criminal Court) Court Organisation 1922
    • 14. 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

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