Law and judiciary

The legal frameworks and judiciaries of the Lower Mekong have been shaped by various historical influences in the region: internal and external conflicts, revolutions, and colonialism. Built around constitutions of varying age, the five countries have a similar structure of national through to local courts, and laws.

Old women's prison, Chiang Mai Thailand. Photo by drburtoni, Flickr, taken 2 March 2014. Licensed under CC BY-SA 2.0.

Old women’s prison, Chiang Mai Thailand. Photo by drburtoni, Flickr, taken 2 March 2014. Licensed under CC BY-NC-ND 2.0.

Constitutions

Along with political authority, each of the Lower Mekong states derives its legal authority from a national constitution. Several of the region’s constitutions were adopted or modified in recent years, reflecting fundamental changes in institutional structure, or in their systems of government. Thailand has had the most recent change (in 2014), and the most revisions to its constitution (13 including its original 1932 constitution and two interim constitutions in 2006 and 2014).

How laws are adopted

For each of the Lower Mekong states, the process of introducing, debating and passing laws follows three broad steps.

  1. Legislation can be introduced by members of the legislature. In Cambodia and Myanmar, this can include members of either the Senate or House of Representatives.
  2. Legislation must be approved by winning a majority vote in the legislative house, and in the senate where one exists, as is the case for Cambodia and Myanmar.
  3. Laws that have passed through the legislative branch of government are promulgated with the endorsement of the head of state. In Laos and Vietnam, this is the president; in Myanmar, the prime minister; and in Cambodia and Thailand, the king.1 2 3 4 5

Hierarchy of laws

Each of the five Lower Mekong countries have a similar hierarchical structure of legal forms, with a constitution as the supreme law, down to a limited administrative directive. Regional and local laws are then enacted at provincial and (in some cases) village levels for their jurisdictions. In 2007 Cambodia’s Constitutional Council stated that international treaties and conventions—once ratified—have the force of domestic law and may be the basis for judicial decisions.6 Generally, international treaties sit between a state’s constitution and laws in the legal hierarchy, but implementing legislation is generally deemed necessary to make the provisions of such agreements effective and enforceable.

 CambodiaLaosMyanmarThailandVietnam
Supreme
law
ConstitutionConstitutionConstitutionConstitutionConstitution
National lawsLaws (Chhbab)

Royal Kram (Preah Reach Kram)
Royal Decree (Preah Reach Kret)

Sub-decree (Anu-Kret)

Ministerial Order (Prakas)

Decision of the Prime Minister (Sechkdei Samrech)
Decision of a Minister or Governor ( Prakas-Deika)

Prime Minister's or Minister's Circular (Sarachor)
Laws

Resolution of the National Assembly ;
Resolution of the National Assembly Standing Committee

Presidential Decree ;
Decree of the Government

Resolution of the Government

Order/ Decision of the Prime Minister

Order/ Decision/ Guideline of Minister
Laws

Rules

Regulations

By-laws

Notifications

Orders;
Directives;
Procedures
Laws

Royal Proclamations

Ministerial Regulations

Orders

Notifications

Royal Decrees;
Rules
Laws

Ordinances

Decrees

Orders

Government Decisions

Circulars;
Guidelines (not legal instruments);
Ministerial Decisions
Local lawsProvincial Deka (Arrete)Provincial Order, Decision or Guideline

District Order, Decision or Instruction

Village Regulation
Regional and State Assembly laws
Note that the hierarchy of laws in the table above applies vertically down the list of laws within a country, and no correlation should be drawn for different countries' entries within the national or local laws.

Courts

 CambodiaLaosMyanmarThailandVietnam
Highest courtSupreme Court of the UnionPeople’s Supreme CourtSupreme CourtSupreme Court of JusticeSupreme People's Court
Appellate courtsAppeals Court (for the whole of the Kingdom of Cambodia)Appellate CourtsEach court also hears appeals on judgements from lower courtsCourt of Appeal;
Regional Courts of Appeal
Superior People's Courts (appellate)
Provincial courtsProvincial and Municipal courts.People’s Provincial Courts and City CourtsHigh Courts of the Region;
High Courts of the State
Courts of First Instance: Provincial and metropolitan Bangkok criminal courtsProvincial People's Courts
Lower level courtsPeople’s District and Municipal CourtsDistrict Courts;
Courts of Self-Administered Divisions;
Courts of Self-Administered Zones;
Township Courts;
Other courts established by law
Municipal (Kwaeng) CourtsDistrict People's Courts
Military courtsMilitary CourtThe Military CourtsThe Courts-MartialMilitary CourtCentral Military Tribunal (subordinate to the Supreme People's Court)
Constitutional courtsConstitutional Council of Cambodia
-
The Constitutional TribunalConstitutional Court
-
Other courts
Supreme Council of MagistracyAdministrative Court
Extraordinary Chambers in the Courts of Cambodia (Khmer Rouge Tribunal)Juvenile and Family Court

Source: Various sources.7 Compiled by ODI May 2016.

How is the judiciary appointed?

The constitutions of all Lower Mekong countries call for judiciaries to be independent and impartial.8 In Laos, all judicial appointments (except the President of the People’s Supreme Court) are made on the recommendation of the President of the People’s Supreme Court. One notable exception is that Thailand’s interim constitution places the Constitutional Court subject to the Leader of the ruling National Council for Peace and Order.9

The heads of state of all countries are involved in appointing the chief justice of the country, and some are involved in the appointment of all judges. Generally speaking, these nominations must be approved by the national assembly.

Integrity, efficiency and rule of law indicators

Justice systems are relied on to adjudicate criminal charges and resolve disputes. With this in mind, essential judicial characteristics include integrity, independence (not being subject to external influences) and efficiency, reaching a decision in a reasonable time, without undue cost to the parties. Judicial systems are also key components of a state’s rule of law. Using a set of indicators from international index-based reports provides some opportunity to examine, and compare, the strength of the judicial systems of the five Lower Mekong states. However data on Laos were not available through two of the three reports we use here.

The four remaining Lower Mekong countries received scores ranking them in the bottom 50 percent globally for adherence to the rule of law, in the World Justice Project’s 2015 Rule of Law Index. They also ranked in the bottom five countries for the Asia Pacific region, as shown in the chart below. All four countries’ best scores came for “Order and Security” indicators. While Cambodia’s lowest scores were for indicators under “Absence of Corruption”, Vietnam’s lowest scores were for “Regulatory Enforcement”, and both Myanmar and Thailand scored lowest for “Criminal Justice”.10

Transparency International’s 2013 Global Corruption Barometer includes one indicator dealing with the reported frequency of bribes paid, and another for the percentage of respondents viewing the judiciary as corrupt or extremely corrupt. High numbers of respondents in both Vietnam (53 percent) and Cambodia (60 percent) viewed their judiciary as corrupt or extremely corrupt, however only 14 percent of people in Vietnam reported paying bribes to the judiciary, as opposed to 65 percent in Cambodia. Of Thailand’s respondents (the only other Lower Mekong country included in the report) 18 percent viewed the judiciary as corrupt or extremely corrupt, and 14 percent reported paying bribes to judiciary members.11

While the Doing Business Report is not about judicial institutions, it is about business activities and the regulatory and practical burdens placed on them by government. One activity is the enforcement of a claim under a contract. The efficiency of a state’s courts in resolving the case is measured in two ways:

  1. the time between filing and enforcement; and
  2. the cost of the process, in terms of the percentage of the claim being litigated.

As can be seen in the case of Cambodia’s data shown in the chart below, it is possible for the cost to exceed the value of the claim.12

While all countries now have the equivalent of a bar association that registers and oversees the practice of the legal profession in their country, some are not independent and accordingly exercise less oversight or control of the profession. In Cambodia and Laos, the bar associations administer, regulate and monitor conduct of lawyers.13 14 The Independent Lawyers’ Association of Myanmar, launched in 2016, is the first stage of establishing an independent bar association in the country.15 In Thailand, the Lawyers Council oversees the profession and is separate from the Thai Bar Association, which oversees legal education standards and legal aid.16 While Lawyers in Vietnam answer to their local bar associations, these are affiliated with the national Vietnam Lawyers’ Association, which is part of the Communist Party’s Vietnam Fatherland Front.17

Prison system

There are 286 prisons in the Lower Mekong, housing more than 500,000 inmates. Prisons in Cambodia, Myanmar and Thailand—the only lower Mekong countries with statistics available on official prison capacity—all suffer from overcrowding. While Thailand had more than 100,000 prisoners over its official capacity in 2016, both Cambodia’s and Myanmar’s prison numbers were at more than double their capacities.

Cambodia had by far the highest percentage of pre-trial and remand detainees in the Lower Mekong, at 69.1 percent of their prison population in 2016. Myanmar (10.8 percent), Vietnam (17.5 percent) and Thailand (18.1 percent) all had similar levels of pre-trial/remand detainees, while data for Laos were only available from 2004, at 1 percent.18

All Lower Mekong countries support the concept of legal aid for their citizens, and all—with the exception of Myanmar—have established legal aid resources operating through government and donor funds.19 Myanmar adopted a law in 2016 creating an institutional, conceptual and legal framework for the provision of legal aid services, however with no budget allocation for any such services as of April 2016.20

Constitution of the Kingdom of Cambodia

Constitution of the Lao People’s Democratic Republic

Constitution of the Republic of the Union of Myanmar

Constitution of the Kingdom of Thailand

Constitution of the Socialist Republic of Vietnam

 

Last updated 23 May 2016

References

  • 1. Articles 28 and 91, Constitution of Cambodia, 1993 (rev. 2008). Accessed 3 May 2016. http://www.senate.gov.kh/home/constitution/constitution_english.pdf
  • 2. Articles 60 and 70, Constitution of Lao PDR, 1991 (rev 2003). Accessed 25 April 2016. http://www.na.gov.la/index.php?option=com_content&view=article&id=26&Itemid=188&lang=en
  • 3. Articles 95, 96, 99, 101, 105, 106, Constitution of Myanmar, 2008. Accessed 25 April 2016. https://www.constituteproject.org/constitution/Myanmar_2008?lang=en
  • 4. Thailand Constitution, 2014. Accessed 3 May 2016. http://asean-law.senate.go.th/files/Thailand_2015_1.pdf
  • 5. Vietnam, 1992 (rev. 2013). Accessed 3 May 2016. https://www.constituteproject.org/constitution/Socialist_Republic_of_Vietnam_2013?lang=en
  • 6. The Constitutional Council. Decision No 092 /003/2007 CC.D Of July 10, 2007. Accessed 21 May 2016. http://www.ccc.gov.kh/english/decision/2007/dec%2092.pdf
  • 7. Senate of the Kingdom of Cambodia. Constitution of the Kingdom of Cambodia, art. 128. www.senate.gov.kh/home/index.php?option=com_content&view=article&id=62&Itemid=150&lang=en | Singapore Ministry of Foreign Affairs. Law on the People’s Courts. Accessed 25 April 2016 http://www.mfa.gov.sg/content/dam/mfa/images/om/vientiane/Lao%20Law/Law%20on%20the%20People%20Court.pdf. | The Republic of the Union of Myanmar. The Supreme Court of the Union. Accessed 19 May 2016. http://www.unionsupremecourt.gov.mm/?q=content/formation-courts-different-levels. | Court of Justice. Judicial System. Accessed 26 April 2016. http://www.coj.go.th/en/judicialsystem.html. | Constitution of the Socialist Republic of Vietnam, Chapter VIII. Accessed 12 May 2016. http://en.vietnamplus.vn/the-constitution-of-the-socialist-republic-of-vietnam/55389.vnp
  • 8. Article 128 of the Constitution of Cambodia; Article 82 of the Constitution of the Lao People’s Democratic Republic; Article 300(a) and 309 (a) of the Constitution of Myanmar; Section 26 of the Constitution of the Kingdom of Thailand (Interim); Article 103 of the Constitution of the Socialist Republic of Vietnam.
  • 9. Sections 44 and 45, Constitution of the Kingdom of Thailand (Interim). Accessed 11 May 2016. https://en.wikisource.org/wiki/Constitution_of_the_Kingdom_of_Thailand_(Interim),_Buddhist_Era_2557_(2014)#44
  • 10. The index considers indicators in eight areas: 1) Constraints on Government Powers, 2) Absence of Corruption, 3) Open Government, 4) Fundamental Rights, 5) Order and Security, 6) Regulatory Enforcement, 7) Civil Justice and 8) Criminal Justice. Source: World Justice Project. Rule of Law Index 2015. Accessed 22 April 2016. http://worldjusticeproject.org/sites/default/files/roli_2015_0.pdf
  • 11. Transparency International. Global Corruption Barometer, 2013. Accessed 22 April 2016. http://www.transparency.org/gcb2013/countries
  • 12. World Bank. Doing Business Report 2016. Accessed 25 April 2016. http://www.doingbusiness.org/~/media/GIAWB/Doing%20Business/Documents/Annual-Reports/English/DB16-Full-Report.pdf
  • 13. Bar Association of the Kingdom of Cambodia. Accessed July 8 2015. http://www.bakc.org.kh/en/
  • 14. The Asia Foundation. Access to Justice in Laos, 2013. Accessed 8 July 2015. https://asiafoundation.org/resources/pdfs/LaosA2J2013.pdf
  • 15. International Bar Association. “IBA President and Aung San Suu Kyi open inaugural meeting of Myanmar’s first national independent lawyers’ association.” Accessed 25 April 2016. http://www.ibanet.org/Article/Detail.aspx?ArticleUid=67923557-0f67-403c-ad67-ff04adc4ac52
  • 16. Thai Lawyers Act (1985). Accessed 9 July 2015. https://www.imolin.org/doc/amlid/Thailand_Lawyers%20Act.pdf
  • 17. Law Council of Australia. “Fact Sheet: Practise of Foreign Law: Vietnam”, undated. Accessed 25 April 2016.https://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/Country_Fact_Sheets/Asia/PFL%20Vietnam_map.pdf
  • 18. Institute for Criminal Policy Research. World Prison Brief. Accessed 28 April 2016. http://www.prisonstudies.org/map/asia
  • 19. Legal Aid of Cambodia. Accessed 8 July 2015. http://lac.org.kh/partners/; TAF. Access to Justice in Laos, 2013. Accessed 8 July 2015. https://asiafoundation.org/resources/pdfs/LaosA2J2013.pdf; Repost of TNA news article dated Nov. 23, 2004, “Thailand Launches Free Legal Advice Service”. Accessed 9 July 2015. http://www.thaivisa.com/forum/topic/21183-thailand-launches-free-legal-advice-service/; Voice from Thais. Open Legal aid center “Thai Lawyers for Human Rights”. Accessed 9 July 2015. https://voicefromthais.wordpress.com/2014/05/28/open-legal-aid-center-thai-lawyers-for-human-rights-tlhr/; Ministry of Justice. Legal Aid. Accessed 25 April 2016. http://legalaid.gov.vn/slideshow/legal-aid-ministry-justice-vietnam
  • 20. Myanmar Legal Services. Accessed 23 April 2016. http://www.myanmarlegalservices.com/wp-content/uploads/pdf/2016-Myanmar-Laws-Enacted-in-2016(TD030216)_(1843477_1).PDF
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