When the affected families protested against the award, it did not take long for the ruling party’s provincial committee to directly intervene, fearing that the protest would have an adverse effect on the party in light of the approaching parliamentary elections. In May, the committee hurriedly sent a petition to Prime Minister Hun Sen, requesting him to rescind the notification letter.
It did not take long for Hun Sen, either, to heed that petition. In early June, some six weeks before the election, the affected families got back their community land.
However, more than 200 families living in a village on the outskirts of Phnom Penh were not that fortunate in their efforts to have a plot of land, which they consider community land, returned to them. The land was vacant in the mid 1980s when the villagers claimed it as community property to stage communal religious functions. A fellow villager, however, somehow succeeded in making that land his private property. Other villagers protested and filed a complaint in court to claim it back.
The Court of First Instance and later the Court of Appeal ruled against the villagers. However, in July 2005, they won their case in the Supreme Court, Cambodia’s court of final appeal. The court awarded the land back to the villagers to serve as their community land. At first, the loser agreed to comply with the Supreme Court’s judgment, but somehow, in November 2006, secured a notification letter from the office of the prime minister. The Supreme Court’s judgment has not been executed since then.
The villagers have since protested against the continued possession of their community land by the fellow villager. On Sept.17 hundreds of villagers gathered and put their thumbprints on a petition to Hun Sen, requesting him for justice to get their communal land back.
The use of notification letters is not unique in the two cases above. Rather, it is a common practice for settling disputes by bypassing legal procedures and court judgments.
This practice is a kind of “rule by decree,” where notification letters serve as simple notices to concerned persons of the decisions made by the prime minister or his office. They have no official status as executive orders or regulations – such as royal decrees signed by the king, sub-decrees signed by the prime minister or ministerial orders signed by ministers – and are not subject to parliamentary debate or judicial review.
Furthermore, they are not necessarily issued and signed by the prime minister himself, but more often by senior officials in his office, invariably with references to his decisions annotated on the case file. The number of people authoring such letters causes confusion and creates more problems for the concerned parties.
In April this year a notification letter was issued by a senior official in the prime minister’s office awarding a piece of disputed land to a group of litigants. In May, the same land was awarded to another group of litigants by another official in the same office, who issued another notification letter. In July, the first group of litigants made a plea to Hun Sen to get the land back.
This practice is unconstitutional, where institutions other than the courts have the power to adjudicate disputes. Furthermore, it is an offence of interference in the judicial functions of courts and appears in the current draft of the Cambodian penal code.
This form of rule by decree has bred corruption and contributed to the centralization of power in the hands of the prime minister. It has long obstructed the establishment of the rule of law, which, according to its Constitution, is supposed to govern Cambodia.
This rule by decree must end, and the penal code should be adopted as soon as possible to criminalize interference in the judicial function of the courts.
(Lao Mong Hay is a senior researcher at the Asian Human Rights Commission in Hong Kong. He was previously director of the Khmer Institute of Democracy in Phnom Penh, Cambodia, and a visiting professor at the University of Toronto in 2003. In 1997, he received an award from Human Rights Watch and the Nansen Medal in 2000 from the United Nations High Commissioner for Refugees.)