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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