Another illogical ‛cure’ from Surya Subedi

[Published by the Cambodia Herald on 23 November 2014.]

With any luck, this may be the last time that Cambodians are asked to listen to the recipes of Surya Subedi, the United Nations special envoy on human rights in Cambodia. Subedi, who has filled the post since March 2009, is to leave it in March 2015 (or January 2015 according to Radio Free Asia, which may have more recent information than the UN).

To my mind, Subedi’s tenure is best characterised by a prescription for Cambodian elections that he produced in September 2012. Although (or because) this was slanted to aid the opposition, it was so ignorant, illogical and self-contradictory that most people decided the best thing to do with it was to forget it (my critique can be read at https://letters2pppapers.wordpress.com/archives/2012-2/subedis-proposals-wont-improve-cambodian-elections/).

Subedi’s latest recipe is a press release issued in Geneva on 18 November and quickly publicised by Radio Free Asia. In it, Subedi, modestly describing himself as a “rights expert”, advised the Cambodian government on how it should – or rather, shouldn’t – manage the court system.

Subedi’s press release called the sentencing of 11 land protesters a week earlier an instance of “the courts being used … as a tool of the executive”. His release quoted himself further:

“The lack of judicial independence is one of the central obstacles to achieving the just, inclusive society that Cambodians strive for. The recent conduct of the courts demonstrates once again the need for an independent judiciary in Cambodia.”

From what I have read of the case in the newspapers, the judgment and sentencing of the land protesters were unduly harsh, and I hope the 11 will successfully appeal. But that does not mean that Subedi’s declarations about “judicial independence” are sensible.

“Judicial independence” is one of those feel-good virtuous conditions, like “democracy”, “free elections” and “progress” that everyone is in favour of. The reason that everyone can be in favour of them is that the terms are such broad abstractions that they can be used by different people to mean quite different things. After any election, supporters of the majority will tell you that “democracy” means the right of the majority to decide, while supporters of the minority will assure you it means respect for minority rights.

“Judicial independence” is probably even more of a holy grail than “democracy”. This may be what prevents many advocates of judicial independence thinking about what they want the judiciary to be independent from. How independent should courts be?

Independent from arbitrary interference by a ruler, obviously. Independent from “universal” values such as opposition to genocide, obviously not. Independent from the social norms of the country concerned? There you will get arguments – and not unreasonable ones – from all sides.

No government in the world voluntarily allows its courts to be really independent. Judges are human beings functioning in a given socioeconomic and political system. They are directly and indirectly guided by the values of that system, which are legally embodied in legislation and, in common-law countries, judicial precedents. If judges seriously disagree with important values of the system, they soon cease to be judges – or never become judges in the first place.

In nearly every country, governments appoint judges, and, not surprisingly, they tend to appoint people who share their outlook on matters of importance. In some parts of the United States, judges are elected, which is more democratic in principle, but it hardly makes them independent, since unpopular rulings make it unlikely they can be reelected (plus, to be elected, they usually need support from one of the major parties that take turns being the government). In cases where judges take their “independence” too seriously and stop doing what is acceptable to the powers that be, there are always ways, such as impeachment, to remove them.

Even in Nazi Germany, it was probably very rare for a government official to issue orders to judges about how to decide a particular case. It wouldn’t have been necessary, because the government had removed any judges who didn’t support, or weren’t at least willing to implement, the Nazis’ laws and regulations.

So “judicial independence” is at most a very limited condition, a matter of degree and certainly no kind of absolute. Paradoxically, in countries where government officials never telephone judges to order or pressure them to do something, there may be less judicial independence: if the government is certain that judges will do what it wants them to, there is no need to tell them.

Like any country, Cambodia undoubtedly has some laws that I and many other people would consider bad laws (not all of them initiated by Cambodians: some of the laws inherited from French colonialism or from UNTAC fit the description). When someone is arrested and taken to court under a bad law, what is the solution? Should judges be able to ignore laws they regard as bad? That would be more judicial independence than is desirable, because judges with the freedom to pick and choose which laws were valid might think a law is bad when the rest of society considered it good.

Or should judges be influenced instead by the views of NGOs or foreign officials – for instance, Surya Subedi? If judges had to consult NGOs or the United Nations bureaucracy on how to decide cases, that could hardly be called “judicial independence”, although that appears to be what Subedi wants to call it: in essence, he says that Cambodia’s courts should show “independence” by following his instructions.

The only real solution to bad laws is to amend or repeal them. That might seem more difficult than exerting NGO or foreign pressure on judges, especially to people who put their hopes in parties that seem unable to win elections. But it is a practicable and lasting solution. And it doesn’t undermine judicial independence.

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