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Logo of Phnom Penh Post newspaper Phnom Penh Post - Judicial council's deadlock worsens

Judicial council's deadlock worsens

A WORSENING political deadlock over the appointment of judges to the vital Supreme

Council of Magistrates (SCM), is unlikely to be resolved before upcoming elections,

legal experts predict.

Powerful elements within Funcinpec and Cambodian People's Party (CPP) now believe

they have more to lose than gain, if new appointments of judges onto the council

go ahead under a divided government, experts said.

The row over the council means the government, which has been operating for almost

three years without the SCM, is unable to appoint new judges to replace Cambodia's

aging judiciary.

And without the SCM, the Constitutional Council, which should include SCM appointees,

cannot be formed. This leaves Cambodia without an arbitrating body for disputes which

may arise over the conduct of upcoming elections.

Officials from both Funcinpec and CPP have blamed each other for the impasse, and

King Norodom Sihanouk has said he will not convene the council until appointments

of judges onto it are agreed to by both Prime Ministers.

"The composition of the council must be pre-approved and submitted by the two

prime ministers," a Jan 22 statement from the palace said, adding that the King

wanted both councils to start "as soon as possible".

Senior royalist officials say First Prime Minister Prince Norodom Ranariddh wants

half the judges on the powerful magistrates body to be Funcinpec and Buddhist Liberal

Democratic Party (BLDP) judges, to cut back on what he sees as a CPP monopoly over

the judiciary.

Funcinpec's State Secretary for Justice, Uk Vithun, claims the independence of Cambodia's

courts will never be realized unless Funcinpec and BLDP are able to appoint judges,

via the council.

"All of Cambodia's 135 judges were appointed by the CPP in the 1980's...90 percent

of them have no legal training at university... they were political appointments

mainly of former school teachers," Vithun said.

"After the Paris Peace Accords all three parties agreed to share power and lists

of Funcinpec and BLDP judges were submitted for appointments, but until this time

none have been made.

"There is not a single Funcinpec or Buddhist Liberal Democratic Party [BLDP]

judge in the country," Vithun said.

The makeup of the council was set down in a Nov 1995 Supreme Council of Magistracy

Law, as the Minister of Justice and seven judges, to be presided over by the King.

Vithun claims that, of a CPP council nomination list presented to the King, without

Funcinpec consultation, last year, only three nominees are legally eligible to sit

on the body, which requires a quorum of seven to convene.

He says the retirement of the president of the Appeals Court, Judge Heng Chy, means

that position remains vacant - not filled by deputy appeals court judge Ros Lam,

as Justice Minister Chem Sgnuon has recommended.

The State Secretary says the Justice Minister's role as a government official and

the prosecutor of the supreme court - and Phit Phanour's status as a CPP MP - means

they are both constitutionally ineligible to sit on the body.

This leaves the King, the supreme court president Chan Sok - who Prince Ranariddh

has urged to retire because of old age - and the prosecutor of the appeals court,

Henro Raken, as the only remaining eligible nominees, according to Funcinpec.

Legal advisors agree that some of the CPP nominations are ineligible according to

Constitution - which bars government officials from holding other public positions

- and say that all permanent appointments of new judges can only be made by

the council itself.

They said room to compromise could be found in provisions for the appointment of

three temporary judges onto the body and a replacement appointment for the Minister,

but that it is unlikely CPP will be keen to cut deals which would reduce their control

over the court system.

"It is in their interest to stall the council's formation because without it

the CPP-dominated Justice Ministry can maintain control of the administration of

justice," one foreign lawyer said.

However, while Funcinpec may have the moral high ground in the dispute, technically

CPP officials are correct in arguing that appointments should not be politically

based and should be made after the SCM convenes, he said.

In an October letter, obtained by the Post, Second Prime Minister Hun Sen wrote to

Ranariddh, saying he could not accommodate requests from the First Prime Minister

and BLDP for some of their judges to sit on the council.

Referring to a suggestion by Ranariddh in a letter to Hun Sen in September, that

the SCM should "be composed of judges who are members of other ruling parties",

Hun Sen counters that the Council should remain "independent in conformity with

the constitution".

"Political parties should not interfere in managing judicial power," Hun

Sen wrote, claiming that "the judges of Cambodia are not all CPP members".

"If the judicial branch is placed under the control of parties, there will be

pulling back and forth in judicial work. An ordinary conflict will become a political

conflict," Hun Sen said.

Arguing that the replacement of retiring judges should be the responsibility of the

SCM, Hun Sen said that since March 1996 "the supreme body had enough members

to begin its work".

"There's bad blood on the CPP side because after the elections they did promise

to integrate the judiciary as well as the civil service but they didn't do it,"

said one legal advisor.

"But the Funcinpec position is also heading in the wrong direction...By calling

for political appointments, they are treating the judiciary like the army or police.

"The government should be de-politicizing the judiciary. All judges should be

required to resign from CPP positions and all new appointments should be based on

merit," he added.

Meanwhile, some Funcinpec and BLDP officials claim Ranariddh missed his chance to

secure non-CPP judiciary positions by agreeing to pass the magistrates law before

judges from their parties were incorporated into the court system.

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