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Sally Frances Low, "Colonial Law Making: Cambodia Under the French" (NUS Press, 2023)
00:45:43
An interview with Sally Frances Low
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Hi everyone. I want to tell you all about another podcast I think you'll enjoy. College Matters from the Chronicle College Matters is a weekly show from the Chronicle of Higher Education, and it's a great resource for news and analysis about colleges and universities. You'll hear sharp discussions with Chronicle journalists offering fresh perspectives on the latest salvos from the Trump administration and keen insights about how faculty and students are adapting to technological changes. College Matters also features incisive interviews with newsmakers, including recent conversations with Chris Eisgruber, Princeton University's president, and Rick Singer, who is best known as the mastermind of the Varsity Blues admissions scandal. Check out College Matters wherever you get your podcasts.
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Welcome to the New Books Network
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New Books in Southeast Asian Studies is sponsored by the ANU Southeast Asia Institute, the Griffith Asia Institute, the New York Southeast Asia Network, the Nordic Institute of Asian Studies, and the Sydney Southeast Asia Centre.
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Hello everybody and welcome back to New Books in Southeast Asian Studies, a podcast channel on the New Books Network. I'm Patrick Jory, I teach Southeast Asian History at the University of Queensland, Australia and I'm co host of this channel in 1863, the French established a protectorate over the Kingdom of Cambodia. The protectorate, along with Vietnam and Laos, later became part of the colonial state of French Indochina. Part of the French so called civilizing mission in Cambodia involved reforming Cambodian law and legal processes. Sally Lowe's pioneering study, Colonial Lawmaking Cambodia under the French, published by Nus Press in Singapore in 2023 through the Asian Studies association of Australia's Southeast Asian publication series, tells the story of the encounter between what she calls two different legal and social cosmologies, Cambodia's indigenous legal tradition and and modern French legal thinking. While the French claimed they were modernizing Cambodian law, in fact they imposed many aspects of French law on Cambodia's legal system. Initially, they dispossessed the king of much of his judicial authority, but ironically, the French reform of Cambodian law retained the monarchy as a semi divine source of law, and royal power was subsequently legally embedded into new national institutions, the Law and the Constitutions. At independence in 1953, 90 years after the French established their protectorate, Cambodia's King Sihanouk inherited this legal apparatus which had done so much to enhance the power of the executive over the judiciary. Today, I'm delighted to be able to talk to the book's author, Dr. Sally Lowe. Sally has a doctorate in legal History from the University of Melbourne and has worked extensively in Cambodia and Southeast Asia. Sally, thanks so much for coming on New Books in Southeast Asian Studies to talk about this very original and richly detailed book.
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Thanks, Patrick.
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B
Now, there aren't a huge number of legal scholars interested in Southeast Asian history, but you're one of them. Can I start off by asking you how and why you first became interested in Southeast Asia and why you became interested in the legal history of Cambodia in particular?
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Well, I first went to Cambodia as a volunteer in 1993, just before the United nations sponsored elections that were the culmination of the 1991 Paris Peace Accords that had attempted to bring an end to the civil war of the 1980s, during which time the Vietnamese backed regime in Phnom Penh was being opposed by the Khmer Rouge, the remnants of the Khmer Rouge and other factions based on the Thai border. So it was a very interesting time to arrive in Cambodia. And it was the beginning of my interest in Cambodia and a long attachment to the country. And for me, it was also the beginning of a career in international development. I went on to manage aid projects in Vietnam and Indonesia and other parts of the Asia Pacific region. And throughout that time I maintained an interest in Cambodia and made many friends there. I also went back to study and completed a law degree and then a Master's of law. And so one of my Cambodian friends was a talented Australian archivist who had worked up in the Cambodian National Archives helping to reassemble and re catalog a lot of the records that had miraculously, you might say, survived years of neglect and civil war. Peter Arfanus, my archivist friend, told me quite often referred to the vast trove of records on law and justice during the French protectorate there. And so when I decided I wanted a change of course and had the opportunity to Enrol in a PhD at the Melbourne Law School, it seemed a natural fit. I was lucky enough to be able to work with David Chandler, one of the world's leading historians of Cambodia, and also with Pip Nicholson, who was the head of the Asian Law center and an expert in Asian law at Melbourne Uni. And my book's based on that thesis, although it's also quite different, takes a quite a different line of inquiry and also spans a longer time frame than did my thesis.
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B
For the historians who are listening, you mentioned these archival sources for the writing of the history of Cambodian law. Can you say a little bit more about those sources?
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C
Well, the French established the archives when they were ruling Cambodia, and the contents of the archives are by and large French, although there are some more recent Khmer language records and what remains in the archives in Cambodia. A lot of the things are the things that the French didn't think were important enough to take back to France to repatriate to their archives in Aix en Provence, where they keep many of their colonial records. So a lot of it is monthly reports from administrators, correspondents regarding the legal system. One of the things that I became particularly fascinated by when I first went into the archives was a big battle between the French Resident Superieur, Francois Baudouin, and the Prosecutor General of French Indochina, Michel Gabriel, over the role of the French courts in Cambodia. Because Indochina consisted of five separate entities, in a way, each with a different colonial status, it was ruled a little bit like a confederation rather than one single colony. But there was an overarching French administration based in Hanoi, and there was an overarching French legal system or French jurisdiction. So a series of French courts which mainly dealt with cases that involved French citizens and other Europeans. And there was an ongoing battle between the French judges and the colonial administration as to their various. It was a power struggle, basically. The French judges were often at war with the colonial administration. And in Cambodia, which was a relatively, you might say, neglected or peripheral aspect of Indochina, at least for the French, the Resident Superior Baldouin successfully brought about a situation whereby there was only ever one court run by French judges in Cambodia. And he managed to keep the rest of the French courts under the control of local residents or administrators who answered to him. And that was a major battle which tells you something about. Was quite entertaining to read, but it also had a very important impact on the way that justice developed or the way the courts and laws developed in Cambodia during the time of protectorate.
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B
If we can perhaps start at the beginning of your narrative. In 1863, the Kingdom of Cambodia becomes a protectorate of France. Can you give us a snapshot, if that's possible, of the state of Cambodian law before Cambodia became the protectorate?
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C
Well, people refer to a series of sacred legal texts which were basically derived from Hindu and Buddhist writings and that had been passed down from king to king. And the French saw these and treated them as legal codes. But in fact, I would argue that they were not legal codes in the sense that the French understood, in that they didn't contain uniform laws that were meant to be applied to the whole population. They were rather probably symbols of royal power. Various kings reissued and rewrote the codes so that they evolved over time, and they contained a series of decisions by kings, or they recorded a series of decisions by kings as to how a certain action should be punished or should be dealt with. There's one section that outlines a series of very bloody forms of torture that can be imposed on felons. And the French took these texts out of context and said, well, look, these laws are completely barbaric. And even though the Treaty of Protection said that they should not interfere in the laws of Cambodia or the legal processes of Cambodia, they set about trying to take control of the justice system and to rewrite the laws.
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B
I was going to say that the book starts off by showing how important law was to the administration of pre colonial Cambodia. And in one place you have this nice quote from a French colonial administrator about the state of Cambodian law in, I think it's 1883. Okay, so it's after the protectorate, but not, not so long. And if I can just quote from your book, from this administrator. The major occupation of Cambodian mandarins of all levels of the hierarchy is without exception, the administration of justice. The regular income they take from it, added to the bribes, to the valuable presents they received or that they require, constitutes just about all of their salary. They adjourn cases as long as they can in a way that squeezes the resources of the defendants or the litigants. But it has to be seen with what nonchalance and what indifference these judges examine the matters that are put before them. One finds them on a sort of platform, lounging on mats, smoking their pipes, drinking tea and interrupting the debates in order to give themselves over in loud voices to conversations that are altogether foreign to the subject under discussion. So I guess, you know, some people might think that maybe this wasn't such a bad thing that the French came in and modernized Cambodia law.
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C
Yes, indeed. And I think you've got to take it in the context of Cambodia having once been a more powerful kingdom than it was, and being wedged between the power of the Nguyen dynasty in Vietnam and the Chakri dynasty in Siam. So by the time the French arrived, Cambodia was reduced to a form of client state, if you like. The influence of the king was arguably restricted and his power rested on his ability to grant patronage, to grant privileges. So the country was divided up in a very complex network of patron client relationships between the king, between provincial governors, and various other powerful people, including the five men that the king called his ministers. So each of these had their own patrons, and the way that they raised revenue was to basically tax the population in whatever way they could. And I think what Murat was saying in that quote was that by the time the French arrived, some officials had a tendency, or some envoys from various ministers had a tendency to go looking for court cases or for disputes. To solve because that was a lucrative way of raising money from the population. There had been or there was, according to commentators at the time, an acknowledged system of courts, but that probably this had broken down to a certain extent, or these envoys were operating outside of that system. So to a certain extent the court system as it existed had degenerated, probably because of the weakening of the king's hold on Cambodia and because of the constricting of the territory, which was the edges of the territory were, you know, liable to be invaded or encroached upon by Cambodia's more powerful neighbours. Cambodia was emerging from a time of hardship and civil war and the French did bring peace to Cambodia. They put King Narodom on the throne, they supported his claim to the throne against those of his two half brothers in return for him signing the Treaty of protection. So, yeah, there were some benefits, you might say short term benefits of the French presence. They did bring peace and they restored a certain amount of order. Population grew during the time of the French protectorate, which is a good sign. It indicates that people weren't being killed in civil wars. So, yeah, the French did bring a certain order.
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B
So one of the themes of the book seemed to me reading it was it's this encounter between two different legal traditions, and you describe it really nicely in one section of the book, that Cambodian conceptions of justice derive from a local adaptation of Theravada Buddhism, semi divine kingship, status, patron client relations and respect for ritual. Whereas the French conception of justice derived from France's positivist legal system, which it prodded as rational, objective and universally applicable. So I guess how much of the old Cambodian conception of law continued on after the French moved in to try and reform this legal tradition?
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C
Well, I guess that's one of the main themes of my book, that the two systems melded in a way. And partly this came about because Cambodia was a protectorate, an indirectly ruled colony. And even though the French greatly expanded their mandate beyond the terms of the treaty, and you could say became increasingly directly the rulers of Cambodia, they still had to operate within this concept of a protectorate. And also they came to realize that they depended on the king for their own legitimacy and they depended on the local elites to implement their rule. One of the big events that drove this home to them was a rebellion in 1885-86, which came about after the French governor in Saigon had got sick of King Norreodom prevaricating over various reforms that the French were trying to get him to implement. And Governor Thompson sailed down the river and went into the king's bedroom, an unheard of act of lese Majeste, and forced him at gunpoint to sign a new convention in 1884 which really gave the French a lot more power to intervene in the internal running of the country, including over courts and laws. The following year, the French tried to implement some of the reforms that they wanted, including over the courts outside of Phnom Penh. And so they really attacked the power not only of the king but of the still very powerful provincial governors. There were 50 odd of them in Cambodia at that time. And this sparked a widespread revolt which came very close to threatening the French in Phnom Penh. And it really only ended when the king, King Norodom, called on the people to lay down their arms. And so the French learned a very important lesson from that event that if they were to stay in Cambodia, they had to have a compliant king and they had to rule through him. And also that they had to perhaps divide the king from the other elites around him and also bring some of those elites under their umbrella to carry out their rule or to implement their administration. So as a result of these modus vivendi between and mutual dependence between the French and the Cambodians, when Norodom died and they had a more compliant king, King Sisawat, and they did start to rewrite the country's laws and reorganize the country's courts, they still had to maintain the outward appearance of respecting Cambodian tradition and Cambodian traditional law. So there arose this myth, if you like, I call it protection talk, that what was going on was not a rewriting or a replacing of Cambodian law, but an updating of pre existing legal texts. And this meant that the laws, even though they were clearly French in form, there was a, you know, a criminal code, a code of criminal investigation, a civil code, et cetera, et cetera. The French, and also the king, because it suited him as well, maintained this idea that these were not new laws. These were an update or a continuation of the sacred legal texts that had existed before colonization. And in this way the laws or the legal system imbibed the idea of royal power and of the king as the mediator between the divine and the earthly and also the king as the divine source of laws. And that this had a profound impact on the way law was perceived and the way, particularly after independence. Perhaps it laid the basis for the way Narodom Sihanouk, King Narodom's great grandson, treated the constitution that had been enacted in 1947.
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B
One of the things I wasn't aware of before I read your book was that when the French come in, they actually established three separate jurisdictions in Cambodia. One that dealt with the French citizens, another one dealing with cases involving French citizens and Cambodians, and finally one which is a Cambodian indigenous jurisdiction. Can you tell us how this multi jurisdictional system worked?
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C
Yeah. Okay. Well, it came about in a very interesting way. The way it worked was that the French court in Phnom Penh and or then the residents outside of Phnom Penh administered a modified form of French law to European citizens, but they also then administered what was called Annamite Law to those considered to be ethnically Vietnamese and Chinese. The reason this came about was through a series of manoeuvres. Partly it was the French administration in Phnom Penh wanting to take control of legal cases that involved ethnic Vietnamese and Chinese because they were an important minority within Cambodia who played important roles in the administration, but also in the local commerce and trade. So that was one of the motivations. And also the French judiciary based in Saigon were keen to see as much of the population as possible brought under the auspices of a French jurisdiction with the expectation that the judges would be the ones who would administer this jurisdiction. That didn't come about because of the battle that I referred to before between Baudoin and Resident Superieur, Baudoin and Michel. So what happened was by the end of Norrerdom's reign, by 1897, just before he died, the French had, through a series of manoeuvres, succeeded in taking the ethnic Vietnamese and Chinese out of the king's jurisdiction and passing them into what was called a sub jurisdiction of the French courts, whereby the French administrators and judges dealt with those cases. And that left behind the majority of the population considered to be Khmer, who remained under the auspices or under the remit of the local Cambodian courts. And after Narodom died and Sisawot came to power, when the French started to try to reform these local courts, they also, at the same time, the French administration were also trying very hard to minimise the influence of French judges in the protectorate. Baadouin in particular, didn't like the French judges at all. So it was in their interest to try to enhance or maintain the importance of the Cambodian jurisdiction. So if you look at a lot of other protectorates, for example, in Malaysia, the British more or less sidelined what the local courts, allocating them jurisdiction over religious matters and some family law matters and so on. Whereas in Cambodia, the local courts became the courts of the country, really. And they dealt with. They administered criminal law, they administered civil law and so on. And because of Baldouin's fight with the French judiciary, he also oversaw or urged the creation of a complete hierarchy of courts right up to the level of a Court of Annulment, which is in the French equivalent to the apex of the French legal system. So by the 1920s, Cambodia had a fully reformed system of indigenous justice with a hierarchy of courts from the provincial up to the Court of Appeal and then the Court of Annulment above that. And they were all technically overseen by, presided over by Cambodian judges, which, again, was unique in Indochina and very unusual, I think, for any protectorate.
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In your narrative of the history of Cambodian law in the French colonial period, it seems to me there's a turning point in 1911 when King Sisawatt and the French Resident superior, kind of like a Governor General, signs the first part of a revised code of Cambodian law. Can you tell us about this new legal code and why it was so significant?
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C
Yeah, well, I refer to the 1911 codes as a sort of a stepping stone in the process of codification. In 1901, King Narodom had signed a decree saying that the laws of the country need to be modernized. And after that, there were several attempts to move that process along. And it had come about through a series of joint drafting committees. The French had been. Because of their earlier experiences, the French were very wary at that time. So they formed these joint drafting committees of learned Cambodian people and usually a French judge or another colonial official to draft a new code of criminal investigation and legal procedure, I think it was called, and the beginnings of a civil code. And the significance of these were that it was. Well, firstly, it was the first step towards actual codification of a new set of laws for Cambodia. But also because it brought about a reorganization of the courts, it established, particularly in Phnom Penh, a hierarchy of courts. A Court of Annulment, a Court of Appeal and a local, what you would call provincial court that were all staffed by full time judicial officials. So this was also the first step towards what the French liked to call the separation of powers, which was actually the separation of functions, I think, so that there were dedicated judicial officials, whereas before, as that quote you read by Moorer suggests, law had been administered by high ranking people who also performed many other functions. What the law didn't do was impose that separation of powers on the provincial courts. The provincial governors still continued to rule over their local courts, which were probably for the Cambodian people, the most important courts. But it did try to place those governors, put rules around how those governors operated and placed them under a certain stricter form of surveillance by the local French administrators. So that was one significant aspect of those laws, I guess. The other part, which was perhaps not such an important change at the time, was the introduction of the, what they call the first book of a civil code which established civil registries. Basically it started to try to list the people, create a registry of births and deaths and marriages, and to lay down legal procedures for how marriages are carried out and so on. There was another part of the Civil code also drafted, but which couldn't be implemented for another seven or eight years. And this regarded aspects of land law because the French were trying very hard to privatise land, to create a registry of land titles and so on. But they were for various reasons, particularly because Cambodian farmers simply ignored any new laws with regards to land ownership and continue to do what they traditionally done, which is to say that they were the owners of the land that they farmed and occupied. It took a long time for that law to actually be implemented. So it didn't come into effect in 1911, 1912, as the other Kurds did.
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B
Another fascinating argument that runs through the book, and I think it's so important when we think about this problem of authoritarianism. It's one of those big issues in modern Southeast Asian studies is that you argue that the imposition of French law on colonial Cambodia had the effect of strengthening not judicial power, but executive power. And it's not, as I understand it, not all of this is due to the context in Cambodia. I think you make the point that in post revolutionary France, despite the doctrine of the separation of powers, judicial power was more subject to executive power than in common law jurisdictions. Do I have that about, about right?
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C
Yeah, I think that's, that's quite true. The French notion of the separation of powers and judicial independence was at that time an evolving concept and by our current standards of common law traditions. The separation of powers was a long time in being formed in France. You arguably wasn't fully realized until after the Second World War in terms of the judiciary being an independent branch that could in some way review legislation or the actions of the, the executive, although it's a bit complicated. But anyway, certainly at the time of the Protectorate, the French legal system, the judges were regarded as civil servants. And by repute, they often judged cases, particularly controversial cases, with an eye to their own career advancement rather than with an eye to applying the law. Also, we've got to remember that the French revolution of the late 18th century. One of the big claims of that revolution was that they wanted judges to only apply the law, not to interpret the law. So judges had been given a much more restricted role than we in common law countries would be used to. Judges playing in Cambodia, well, in Indochina, the judges were even more restricted because they had less power than the judges in France did. Even the French judges, they were appointed by, for example, by the Minister of Colonies rather than just by the Minister of Justice. So when we think of the separation of powers, you can question whether that actually existed in France at the time, let alone in Cambodia. I argue that in Cambodia what happened was the French claimed in by the early 1920s, they claimed that they had brought about the separation of powers and that this was a great step forward. What in fact they had done is to create a cadre of Cambodian judges who were full time judges. They weren't meant to have any other role as administrators or so forth. And this, this was a big rupture for the Cambodian elite. In the process. The old provincial governors in particular lost their judicial powers and they weren't very happy about it. And that was one of the things that left the new cadre of judges somewhat isolated perhaps or left them open to attack by other sections of the elite. And that was one of the things that made them very dependent on the French for their very existence. The French also placed an advisor who was a French judge in charge of overseeing the local Cambodian courts. And even though he didn't officially preside in the courts, he and the residence of Peurieu took a very close interest, particularly in controversial cases. So you could say that there was never any intention for the separation of powers to lead to what we would understand as being the independence of the judiciary. It was always a judiciary that was closely supervised by the colonial power. And I argue that what had really happened was that this so called separation of powers and the reorganization of the courts had sort of. It was a transfer of power over the judiciary and over legal process from the Cambodian elites to the French. It came under French control. The new codes had originally been drafted in French. When judges went to the school of administration to learn how to be judges, to learn the laws, they were often taught in French by French judges. So it was a very significant shift of power from one hand to the other. But it wasn't a step towards creating an independent judiciary in the way that we understand it. Although the French referred to it as independent because it was separated from the rest of the Cambodian elite.
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B
If we could perhaps Jump forward to the 1940s. It's this very complicated period. Yes, of course, the Second World War breaks out. Cambodia comes under the administration of the Vichy France regime. A few years later, the Japanese take over very briefly, then they're defeated, and the French come back. Can you perhaps sort of run us through how this very complicated political situation leading up towards Cambodian independence, how that affected, you know, French colonial law at that stage?
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C
This is the. The part of the book where I start talking about constitutions. And the very early constitutions or proto constitutions came about under the protectorate. So just before the fall of France In World War II, the administration of Indochina had developed a new law which really put into. Into writing the way that power was administered in the protectorate. But what it did do was to. To acknowledge the role of the king. And it also acknowledged the role of the different Cambodian ministers. So even though they all operated, the law stipulated that they all under the advice or the control of a French administrator. It did create arguably a proto constitution which placed the king at the head of the lawmaking process of the head of the government. And this law number one of 1940, I think it was, at least on paper, it passed ownership of laws back to Cambodia. They were no longer called royal decrees, they were called cram. And there was a formality by which the government of Indochina could no longer make a decree and then say, this is now law in Cambodia. It also had to be formally adopted by the king. So again, it placed the king as the source of law in Cambodia. When World War II broke out and the colony was quickly occupied by Japanese troops, the administration in Indochina supported the Vichy regime. So technically, the Japanese troops and the French were allies in the Second World War. So there was a sort of a cautious coexistence for most of the war. But then after the Germans lost control of France in The middle of 1945, the Japanese decided that they would take over the administration of Indochina. So they imprisoned and or drove out the remaining French officials. And they had the monarchs of the various protectorates declare independence, so called, which was obviously under their control. But in Cambodia, they had the young King Norodom declare an independent kingdom of Cambodia. And the constitution of that regime, which only lasted until the end of the Second World War. So five or six months was based on the law number one of 1940. So what the king did was to take out reference to the. What they did was they took out reference to the French and just left the law as it was. So for those few months the king experienced working under A constitution where he was technically the head of state and in control of everything that happened in the country. That's actually in practice, that's not the way it worked. But that set the precedent, I guess, for, or set a precedent for the young King Norreodom. Then, after the end of the war, after the defeat of the Japanese, the French returned with the help of Allied forces and re established a protectorate which was slightly different. The French had fewer officials in the country, but it ran more or less along the same lines as the protectorate had before the Second World War. However, because of international moves at that time towards decolonisation, the French were under pressure to create a for each section of Indochina, at least those that weren't involved in civil war, to implement a constitution which view would still retain French rule, but which would be seen as a step towards internal autonomy. So there was a process. The French regime and some of the conservative members of the royal household collaborated to draft a very conservative constitution which basically recognized the King as an absolute monarch and with some advisory or consultative elected bodies. And this constitution was expected to be approved without any worries. But Narodom Sihanouk, the king at that time, did something that was sort of quite common for him to do. He made this quick move in an unexpected political direction and insisted that the constitution had to be ratified by a consultative assembly and that there had to be an election and that it had to be universal suffrage. The people who would come to this consultative assembly had to be elected by universal suffrage. And this happened. There was an election. And much to Narodom's consternation and the consternation of the French, the assembly was captured by a group of pro independence people who called themselves the Democrat Party. And they turned what was meant to be a consultative assembly into a constituent assembly and completely redrafted the constitution. And they drafted a constitution which was based very closely on. That had been adopted In France in 1946, the year before, and that was very parliamentarist. It gave a lot of power to the parliament. And in Cambodia it was an unthinkable thing, but that's the constitution that was adopted. And so almost by a series of fumbles or errors, we're never quite sure what motivated King Sihanouk to make those gestures or why they let it happen. By 1947, Cambodia had a very democratic constitution, parliamentary democracy. And the parliament was. The national assembly was dominated by this political party called the Democrats, who were pro independence and whom some of whom were suspected of being republicans. So anti monarchists, although they never outwardly said that. So under this constitution, Cambodian officials started to exercise more authority within ministries, although they still worked under the guidance of French advisers. But the French did all they could, I think, to undermine this new regime. It wasn't in their interests. They didn't like it and neither really did the royal elites. So they colluded to undermine the Assembly. And when they, on various pretexts, you know, there was a lot of political toing and fro ing in the Assembly. There were a lot of factions. In the end, the French supported Sihanouk to more or less dissolve the national assembly and put himself at the head of the government again. So that had happened even before independence. And when independence was granted in 1953, Sihanouk emerged as the undisputed head of the government, even though he still had this democratic constitution to work with. And he also managed to make himself the father of independence because immediately after the French had helped him to bring the national assembly under control, he set about on his crusade for independence, which the French granted probably for their own reasons. I suspect King Sihanouk was able to take the credit for that. Yep.
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B
I found your book so interesting in so many ways. Obviously on the history of law in Cambodia and the impact of the French, but also on the history of monarchy, the modern history of monarchy. I guess when we think of Cambodia, we think of the, you know, the so called God kings of the Angkoran people. But we don't know quite as much about the kings or the French colonial period. And I guess we tend to assume that they were overshadowed. I guess they were to a certain extent by French colonial power. But I think what your book shows really clearly is that ironically, the French reform of Cambodian law appears to have laid the foundation for a reserved royal power. And I think you, just to quote you, you write that the French colonists recast royal power in the light of European absolute monarchs. And you know, King Sihanouk, who you just mentioned, who's the dominant figure of Cambodian politics from the 40s to really the 90s, he sort of is taking advantage of these legal instruments that the French have set up during the colonial period. It's kind of irony.
- [37:26]
C
It is an irony, isn't it? And one of the things I try to get across in this book is that it wasn't old Cambodian elites versus modernizing French elites. The French approach to colonial law in Cambodia was harped back to the ancient, the ancient regime, if you like, before the revolution. So they, you know, it was a regime based on status and also on absolute monarchy. They always resorted when they wanted to do something authoritarian. They always resorted to this claim of being supporting Cambodian traditions of absolute monarchy. For example, in 1940, I think it was, there was one of the Cambodian lawyers, a man named Pen Nick, he wrote a series of suggestions that he wanted to put before one of the consultative Colonial assemblies for how law could be better administered in Cambodia. And one of the things he said is that the French keep drafting laws that are not always appropriate for our country and that if they're going to make laws for the country, they need to negotiate and consult with the Cambodian people, particularly with U.S. lawyers. And this document of course, fell into the hands of the secret police well before it saw the light of day. And the French judicial advisor was tasked with writing a rebuttal of what Penut said. And his reply to that suggestion that there should be consultation about laws about, with Cambodians, about the laws that were being imposed on them was to say what Pen Newt's done is suggested democratic principle and that's no good because he must know that Cambodian tradition is that of an absolute monarch. And so it's incompatible with, with Cambodian traditions of absolute monarchy. Just a very mild suggestion that there should be some consultation. You know,
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B
it's such a familiar story of the colonials shoring up the old authoritarian traditions. Despite this kind of, you can see this, these democratic seeds that are, that are sprouting and they're sort of, they're shut down pretty much by the, by the French.
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C
Yeah.
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B
Okay. If we can fast forward a little bit to the contemporary period, that is, to Cambodia's legal system today. I know your book actually doesn't come right up to the modern period, but can you tell us to what extent that the French colonial period has left a legacy on law in Cambodia today?
- [39:44]
C
Well, I don't feel entirely qualified to say that, but what I can say is that it still claims to be a civil law based system. Of course, between the time of Sihanouk and the present day, Cambodia has been through a whole range of different regimes and has had to rebuild its legal system since the 1990s. So I'm undecided as to the extent to which the old colonial system still influences what's taking place in Cambodia today. It claims to have a civil law influence, but then there also, through process of Western donor aided projects, been other influences inserted into Cambodian law. So there are influences from common law countries, particularly in the area of commercial law. Japanese assistants helped to draft a new civil code. So it is a civil law system in Japan. But it's quite different to that of the French. So it has new laws and it has new courts, although the court hierarchy is not that dissimilar to the one that was existed in Cambodia under the French. I think the political situation has evolved so much, it's debatable how much is due to the colonial heritage. Certainly you can say that even though the days of Sihanouk after independence, the Sankum looked upon by many Cambodians as the golden days of Cambodian peace and democracy and wealth, the legal system didn't function. It was kind of doomed to fail. It was overrun by corruption and also by Sihanouk's decision in the mid-1950s to institute the Samkhum Nyasto Reum, which was a semi communitarian approach to government. And he tried to incorporate the courts into that. He had plans to make judges accountable to the people through assemblies and so on. So that was it had started to change a lot by then.
- [41:42]
B
I imagine this book must have taken up a fairly large part of your life for quite a long time, but do you have any new projects that you might be working on and can
- [41:50]
C
you see they are it has taken a long time and I'm taking a rest at the moment. If I, if I do go ahead with any more research related to the Protectorate of Cambodia, I'd like to look at the careers of some individuals that I came across in my research. In particular one of the French lawyers, a man called Robert Lotat Jacob, who was a thorn in the side of the French administration in Cambodia for many years. And he was a member of the French League for the Rights of Nan and used his connections to try to raise scandals in France about what he thought was the terrible state of Cambodian justice. So if I do more research, it would probably be to try to trace his career after he left Cambodia and see what happened to happened.
- [42:34]
B
Sally Lowe, thank you very much for joining us on this episode of New Books in Southeast Asian Studies to discuss your new book, Colonial Lawmaking Cambodia under the French, published by National University of Singapore Press just this year.
- [42:47]
C
Thanks, Patrick. It's been a pleasure.
- [42:49]
B
And you've been listening to New Books in Southeast Asian Studies, a podcast channel on the New Books Network. Thanks everyone for listening. If you enjoyed this episode and you're interested in podcasts on books that deal with law in Southeast Asian pleasure, you might enjoy listening to Nick Cheeseman's Opposing the Rule of Law, How Myanmar's Courts Make Law and Order, published by Cambridge University Press in 2015, or Jyoti Raja's authoritarian rule of Law, Legislation, Discourse and Legitimacy in Singapore, also published by Cambridge in 2012. And you can download or stream these interviews and thousands more free of charge via the New Books Network website or itunes.
- [43:25]
C
Sam.