The imbalance between female judges and prosecutors compared to male judges and prosecutors in Cambodia

ECCCCambodia implements civil law system which is the laws that are organized into systematic written codes. In civil law the sources recognized as authoritative are principally legislation, especially codifications in constitutions or statutes enacted by governments and secondarily, custom.[1] Primarily a civil law mixture French-influenced codes from the United Nations Transitional Authority in Cambodia (UNTAC) period, royal decrees, and acts of the legislature, with influences of customary law and remnant of communist legal theory; increasing influence of common law in recent years. The Constitution stipulates that the Legislative, Executive, and Judicial branches of government shall be separated.[2] Cambodia has three levels of court: Provincial or Municipal court, Appeals Court, and the Supreme Court. The provincial court has jurisdiction covering the entire territory of the provinces and the municipal court has jurisdiction over the municipality. Lower courts are located in each province and municipality. There is one Appeal Court, which was established in 1993 during the period of the UNTAC, located in Phnom Penh, also consisting of nine judges and four prosecutors.[3] How many female judges or prosecutors are appointed by the Supreme Council of Magistracy?

Total estimated Cambodia population is 14,143, female estimated population 7,257, and male estimated population 6,886 live on 181,035 kilometers of its territory.[4] This statistic shows female population is more than male population, yet not many Cambodia women are employed, especially women from rural areas since they are illiterate or their level of education is not qualify. This issue was being considered as gender gap between men and women. It becomes the gender impact analysis topic for government, especially non government organizations (NGOs) such as United Nations Entity for Gender Equality and the Empowerment of Women, Cambodia Center for Human Rights (CCHR), and other more relevant Human Rights organizations. In order to make equal opportunities for women and men, they are promoting human rights and gender equality through gender mainstreaming.

In the last decade, the Cambodian judiciary consists of 117 judges, of which approximately 11 percent are women. Base on the list of judge in the Ministry of Justice has two female judges among five.[5] A Supreme Court, with nine judges and four prosecutors, sits atop the court system so far.[6] There are 39 judges include prosecutors in Phnom Penh Court which just six are female.[7] After the Khmer Rouge, genocide regime, which left Cambodia with only 10% of the teachers and lawyers that were present in the country prior to the Regime. This has resulted in a huge void of professional capacity in present day Cambodia and it is women prerogative to be part of rebuilding Cambodia’s professional capacity and strengthening respect for rule of law and human rights, including women rights. The imbalance between female judges and prosecutors compared to male judges and prosecutors makes disproportion opportunity for women and men. This imbalance is caused by many reasons, primary focus on general education, not specific on study in the law field, is little extent of female knowledge since they have less study opportunity. For this reason, if we look at the past, social concept reckoned that women should not be educated as men. For instance, they must stay home and take good care of their family or other responsibilities such as domestic work. Otherwise, what women can do the best is that they just get marriage then being a good housewife. Commonly, domestic work is only for women, yet men will be responsible for income so they should be educated in order to get a good job.

Also, parents dare not to let their daughter to stay far away. They think it is inconvenient for her to travel to school and risky to live far away from family since she might be raped, especially women from province, who go to school or university in Phnom Penh. Therefore, women are not well encouraged to have a good education. In the present, this social concept has been improved better than before, people are realizing about Women Rights which is considered as equal as men. Women rights and interests are known as human rights so that the government needs women’s engagements in the society. Consequently, they are encouraged to have education as men so that the amount of female students is increasing from generation to generation. This was the efforts from many international organizations who have been working corporate with Cambodia government and other relevant ministries to influence gender awareness throughout gender mainstreaming to Cambodian people. Even though, there are not many female students who are interested in the study of law field. Instead, they are more interested in others favored majors such as business, accountant, or banking, etc. The reason is because of people say “Women should not study law” or “Law is just for men”. In general, the major of law was considered as a profession for men who are more physically and mentality powerful.

Another reason, social security is a cause which is not encouraged women to work in legal field. Physically, because of women are more fragile than men, they easily face with problems in particular threat or coercion that could not make them to be independent. Moreover, due to marriage or maternity that they are generally subjected to professional discrimination as they need to have maternity leave or get more duties to leave their work. Not only the society and family that judge women as fragile, women her selves also believe the concept. For this reason, this gender bias concept affects the empowerment of women to be a judge or prosecutor. On the other hand, the lack of social communication is also a factor that women shall improve since it is the occasion to make good relationship and express their opinions. They are still too shy or afraid of people stereotype about their communication with people, especially their contact with men.

More important reason is corruption that is rooted almost in every domain such as legal system, trade, education, and politic, etc. It is not convenient to acquire the position as a female judge or prosecutor if no bribery or relation in the field. For example, she must have money to put under the table for the position or some authorizes from someone who has a good position and help her to get it.

Although Cambodia is a party to the International Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Cambodian constitution corporate CEDAW principals such as the right to work, equal recruitment employment and vocational training opportunities, equal conditions of employment, equal remuneration, treatment and social security benefits, women should not be subject to discrimination, should have paid maternity leave, some of these rights are consistently violated with no effective justice mechanisms to correct such violation.[8]It seems women have their rights on the paper, but no one cares about the implementation of such rights, especially the rights of equal recruitment employment.

The process of judicial selection results in many more males than females being selected as judges and prosecutors. Principally, base on women legal knowledge and experience is not more qualified for the recruitment as a sit atop of the court system than men. The reason for this because they have other duties to responsible besides studying; also they don’t have enough time to get more experience. Rationally, women are not provided priority or encouragement to be a judge or prosecutor because of gender discrimination or bias is still in the concept of the society that believe female judges or prosecutors don’t have solid knowledge of legal doctrines, principles, analytical and oral advocacy skills. It is rarely for them to be recruited as such good position. In general, men know how to get the position since they have more communication, capacity, knowledge and experience. Accordingly, women should have developed experience in the working sector which has improved their leadership and professional skills. Sometimes, the female judges and prosecutors will challenge with traveling to the crime sites and mission such as witness interviewing so that they must be capable to participate it. Not only the process of judicial selection results in many more males than females but also others sector selection process. Particularly, even the Extraordinary Chambers in the Courts of Cambodia which is also known as UN-backed, a hybrid court, in its Pre-trial Chamber where all appointed judges are males; Supreme Court Chamber has two international female judges among seven judges, and two national female prosecutors among five but only four present in the hearing. Even the lead of trial chamber is male, national judge Non Nil. Those judges and prosecutors were appointed and are currently processing the trail and hearing on case 002/01.[9]

The lack of female judges and prosecutors cause many impacts to Cambodia society. The most important impact is that women issues cannot be solved effectively because it needs women engagement. Women understand the same women better than men in particular mentality and physical. It is pretty sure that men don’t know better than women who know how to solve efficiently women problem or respect their rights, and implement the rights as provided by in the constitution and international covenants. For instance regarding women fair trial rights, the CCHR Trial Monitors monitored two trials in which the judge failed to handle sensitive topics in a suitable manner. In one trial the judge asked a young victim whether she experienced “thrill and hurt” during a violent sexual assault against her. In another case the judge asked the victim questions related her work as a prostitute.[10] In these cases, the engagement from female judges or prosecutors is needed because female victims or accused, might feel embarrassed to respond male judges or prosecutors, they will feel more comfortable with female judge. In addition, female judge will effectively examine and analyze issues of those females victim or accused regarding their rights based gender sensitivity in regard.

Another impact is that it establishes the existence of gender inequity or inequality employment in the society that women have less job opportunity because of gender discrimination. It also causes less female legal knowledge, so women could not give their involvement or participation in the judicial branch. Women don’t have opportunity to participate in the judicial power. It is necessary to have their engagement in the society as well as legal field. If there is no imbalance between female and male judges or prosecutors, they will consider taking this great career since it raises their legal knowledge and reputation. Simply, it also shows to the international view that the society does not have qualified women who can work as judicial officers. For this reason, it effects a lot to Cambodia women reputations.

Last but not least, it impacts the effectiveness of women rights implementation. Women have equal rights as men; therefore, their rights must be respected and implemented, not just written. They shall have rights to make decision and not subjected to be discrimination. However, there is a quantity of women who are victim of human trafficking, domestic violation, sexual harassment, or prostitution. Especially, some Cambodia women from rural are victim for human trafficking. They were sold to outside country, including female children.[i] With these previous issues, female judges and prosecutors play important roles in processing the hearing to solve their problems and find justice for them. On the other hand, in the hearing, in regard of female judge or prosecutor, female accused will be sentenced base on her situation in the society. For example, if the female accused was found guilty, judge will look at her situation as being a mother, so her children need mother to take care of them. She shall not be sentenced to put in jail for long period, instead for punishment in money and being sent to the prison for short time. In contrast, if she will be sent to the prison, it will affect her children feeling which they could not achieve good result of their study. In addition, the society will lose a person to complete the employment. Therefore, the present of women as a top sit in the court is important gender responsiveness in order to evict gender roles stereotyping.

The lack of female judges and prosecutors influences the extent to which domestic violence and other gender –based crimes are addressed or resolved. Domestic violence is physical, sexual, psychological (including insults, threats and social isolation) an economic abuse or coercion by one (or more) persons in order to control another person(s) that live(s) in the same household living under one roof.[ii] Mostly, woman is a victim of domestic violence cause by her husband or other gender based crime as addressed. Violation against women is also one of the gender based violence. It is measured as women rights abuse since women are considered as weak gender. They become easily victim from all activities occurring in their public or private life. There are many published news about Cambodia women were lured to get married with foreigner men, then they became victim of sexual abuse, sex slavery, or sold to the brothel after they at her husband’s country.[iii] Some of them migrant to neighbor countries to work as garment workers or get domestic work, but they are treated illegally. Also there are garment factories in Cambodia where women make $40 a month for working a six-day week.[11] The carry out of women rights is followed up by government, related ministries and international organizations.

At the moment, the Cambodia bar association is provided training course on human rights to its all members. Its structure has Law Research, Education and Communication Work Group who provides information for members.[12] There are some more steps that the bar association should take to improve the number of female judges and prosecutors. The bar president should consider providing training course and giving prior opportunity for female law student to take it in order to pass its bar exam. I believe that establishing the training course will be effective for improvement extent female legal knowledge. Female law students shall be encouraged to become the members of the association. It is vital that women must be encouraged and gave priority to apply for such positions in the bar association in purpose to make equivalent amount between male and female judicial officers.

Cambodia can consider a lesson from other countries like China that have previously addressed this issue. The Chinese government has made positive efforts to cultivate gender awareness among law enforcement and increase the number of judicial officials. In 2004, China female judges and prosecutors accounted for 22.7 percent and 21.7 percent of the total numbers, up 5.9 percentage points and 5 percent points, respectively, as compared with 1995.[iv] The State has cooperated actively with the United Nation, NGOs, and women’s organization around the world to encourage all social sectors to help promote gender equality and women’s development. Chinese women have become increasingly more diversified in their social status, and thus their need for subsistence, development and protection of their rights and interests.[v]

All in all, women rights in Cambodia must be promoted and defended so that Cambodian women can live in a better society that values their dignity and appreciates the diversity of human beings. Cambodian government, communities, groups and individuals as well as the NGOs must actively corporate to improve respect and understanding for women and human rights and to strengthen democracy so that Cambodian women are entitled to enjoy their fundamental human rights. They shall be treated equally, empowered to participate in judicial branch and democracy in order to share the benefits of Cambodia’s development.

[1] See CIA World Factbook, available at: https://www.cia.gov/library/publications/the-world-factbook/fields/print_2100.html

[2] Cambodia. Const. Art. 51, as amend. March 1991.

[3] Public Administration Country profile for Kingdom of Cambodia: Division for Public Administration and Development Management (DPADM), Department of Economic and Social Affairs (DESA), United Nations, February 2004.

[4] United Nations Statistics Division: Statistics Division and Population Division of the UN Secretariat, 2003, http://unstats.un.org/unsd/demographic/products/socind/population.htm.

[5] The Bar Association of the Kingdom of Cambodia, http://www.back.org.kh/km/2011-09-1208-55-34.

[6] Supra note 3.

[7] Supra note 5.

[8] Cambodia. Const. Art.36, chapter 3.

[9] Extraordinary Chambers in the Courts of Cambodia, ECCC organ, judicial chambers, www.eccc.gov.kh.

[10] CCHR, Trial Monitoring and the promotion of fair trial rights, justice for women, issue 2 March 2011.

[11] Available at: http:/www.cnn.com/WORLD/9702/18/cambodia.labor/index.html.

[12] The Bar Association of the Kingdom of Cambodia, http://www.back.org.kh.

End notes:

[ii] Ministry of Women’s Affairs, Cambodia, Gender terminology, August 2006.

[iii] Supra note i.

[iv] See Gender Equality and Women’s Development in China, http://www.china.org.cn/english/features/cw/14098.htm.

[v] See legal guarantees of Women’s rights and interests, http://www.china.org.cn/english/features/cw/14098.htm.

End notes

[1] Ministry of Women’s Affairs, Cambodia, Gender terminology, August 2006.

[1] Supra note i.

[1] See Gender Equality and Women’s Development in China, http://www.china.org.cn/english/features/cw/14098.htm.

[1] See legal guarantees of Women’s rights and interests, http://www.china.org.cn/english/features/cw/14098.htm.

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