Monday, October 1, 2012

Concept Note; Challenges of Cambodian ADR



Alternative Dispute Resolution (ADR) is an informal mechanism designed for resolving disputes outside the court system. The current situation of this mechanism is like a green shoot starting to appear from the seed in which it would be easy to be collapsed or continue growing – it depends on how much we care. There is hope in Cambodian customary ways of dispute resolution and the low trust on the court system which make this mechanism to be more preferential for people, but the ground challenges are still the lack of resources and professionalism of ADR staffs in performing their roles.

Plan of actions of the Right Access to Justice Project in Cambodia highlights the successful study on the Alternative Dispute Resolution model with 20 communes in KampongChhnang, KompongSpeu, Ratanakiri and Mondulkiri. As the result Right Access to Justice Project notes in its final evaluation report that amongst all their interviewees viewed positively on ADR , but it does not elaborate clearly about the involvement from those people at the commune level. The involvement and trust from people on ADR is the major force to develop and enlarge the areas of the project over Cambodia. However, this is a positive sign for further development of the project.

With generous support from international community, the studies had been completed with an attempt to recommend for a wide use of ADR in Cambodia. In a workshop on ADR on 20 September 2012, the government official said that there will be 18 new alternative justice service centers by next year in addition to 31 alternative justice centers in provinces which have solved around 686 out of 849 cases in 2011.

ADR aims to deal with commercial and minor disputes including minor criminal cases, at commune level, between civil parties before the compliant is brought to the court. It drives dispute parties to join the Table for Peace to sit and negotiate for reasonable solution. Even the settlement of the dispute is not strongly bound like the law but it helps the dispute parties to avoid using violent and reduce the cost in dealing with the case. Reconciliation and mediation are mostly used as the method of dispute resolution in Cambodia which requires people who are skillful in doing coordinating job. This mechanism has been introduced as a tool to reduced the caseloads of the court and ease people at the commune level to access to justice in their area without getting through the complex system at the court.


Areas of Concerns

Human resource is the crucial concerns in the future when Alternative Dispute Resolution is fully implemented. To reach the solution, ADR needs to form an arbitration council consisting of at least commune councils and one representative from Ministry of Justice and/or Ministry of Interior in which all of them need to be skillful in law as well as reconciliation and mediation. Recently, Cambodian court, which is an authorized institution rolling as a judicial body, is facing the lack of human resources including judges, prosecutors and court clerks, particularly people who is specialized in legal skill. Then, it brings the question of concern whether the arbitration council performs their role in an effective and equitable manner with all kinds of dispute brought before them due to their knowledge.
Financial Resource has always been the fact that leads to destroy working incentive of the officials and the collapse of this infant mechanism. Recently, the project is being supported by international community which seems to be sustained in a limited period. Somehow it is believed that the funding on this sector will not be lasted long for Cambodia, then when the project is fully implemented and widespread to the rest of areas in Cambodia financial problem will fall back to the burden of the government again. The trust on this informal dispute resolution will be gradually less and less if there is the lacking of fund to support the staff and its operation – it is resulted from the low working incentive of ADR staffs and just as the same as some government officials who get low paid.
The maybe of overlapping of court jurisdiction; there is no clear division between the case that ADR should uphold rather than bringing it to the court. Even now, ADR is largely focusing on civil dispute, but it also aims to deal with some minor criminal cases which we need to set special criteria determining the minor case which can go through this informal justice system. By the way, solving some kinds of minor criminal offense at commune level by not bringing it to the court is quite necessary as it helps to reduce the caseload in the court. Doing so, there must be a committee to decide on the term “minor crime” in which the result from the offense is expected to be a lenient penalty. This decision will prejudice the criminal case and leads to the overlapping of jurisdiction of the court.
Possible corruption and unjust; there is always a brutal concern on the ground of corruption which there is nothing to guarantee that the process of resolution is handled in a justifiable basis, particularly in the case that one party has poor understanding about the law or has less power in the society. Regarding to social status, it raises the question about the impartiality of dispute resolution council whether it will be able to maintain its unfavorable manner toward all dispute parties. Furthermore, the old concept of Cambodian officials of being favored to their group or relative is strange and doubtful phenomenon of ADR. If it is the case, the poor and powerless people will become more harmful with this mechanism.

Recommendation

Responding to the areas of concerns above, the implementable and achievable recommendations are provided below; 
-         Provincial judges and prosecutors should set up regular schedule in providing legal training and workshop to ADR staffs in their area of jurisdiction. It should be initiated and supported by the Ministry of Justice and Ministry of Interior with participation from competent authorities and civil society. 
-          Set up an autonomous financing system for District Justice House for self-support. Doing so, it will reduce the worries on financial cut in the future from international community. For example, one or both parties who come to find resolution on commercial dispute would be entitle for paying a specific amount of operation cost. 
-          Adapt, enforce and implement the legal instruments, stipulating clearly the function and role of ADR mechanism to avoid the wrong implementation and especially to overlapping on the authority of the court. 
-          Establish a disciplinary committee to check and punish any ADR staffs who perform their role unprofessionally to damaging the impartiality of ADR council and trust of the people.

Nop Virak
Mobile: 089 861965
Email: viraknop@gmail.com or viraknop@cchrcambodia.org

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