One of the fundamental principles of a democratic state is the principle of seperation and independence of powers between the legislative, executive and judiciary. Independence of the courts is a key element of the rule of law and guarantees fair hearings. As such, the 1993 Constitution of the Kingdom of Cambodia (the “Constitution”) establishes the independence of the judiciary and guarantees the principle of the separation of powers. Independence means being free from control or influence. In this reguard, the judiciary is independent when it can functions separately from the legislative and executive. The judiciary should be protected from inappropriate interference and influence, as the judiciary also checks and balance the powers of the executive and legislative. According to the three drafts laws, namely the draft Law on the Organization and Functioning of the Supreme Council of the Magistracy (the “SCM”), the draft Law on the Statute of Judges and Prosecutors, and the draft Law on the Organization and Functioning of the Courts, it is the King, with the assistance of the SCM, who guarantees the independence of the judiciary.
This legal analysis is conducted with an aim to examine the scope of powers of the legislative and executive bodies as enshrined in the three draft laws concerning the judiciary.