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Promotion rattles KR tribunal

To the middle aged law professor and judge, it sounded like a good career move -

a nice promotion to head up the troubled Cambodian Court of Appeals.

But to the UN, it sounded like all too familiar territory - unjust interference in

the Extraordinary Chambers in the Courts of Cambodia (ECCC).

Two weeks after a surprise Royal Decree appointed ECCC co-investigating judge You

Bunleng president of the Appeals Court, the UN has once again pitted itself against

the government in a battle over the much stalled Khmer Rouge trials.

Despite a crescendo of objections from local and international human rights and legal

organizations as well as the UN, Bunleng told the Post this week he intends to take

his new job and will do both jobs for as long as necessary. He told the Post since

he was sworn in at the Appeals Court on August 16 he has been "spending as much

time as usual" at the ECCC to make sure the work of the co-investigating judges'

office is not disrupted.

Yash Ghai, the United Nations Special Representative of the Secretary General for

Human Rights in Cambodia, meanwhile, calls the decree that moves Bunleng to another

judicial posting, unconstitutional and unlawful.

A statement issued August 23 by Ghai said the Decree and ensuing judicial appointments

"appear not to have been made in accordance with the Constitution, casting doubt

on whether the constitutionally-guaranteed principle of judicial independence is

being fully respected."

The "replacement of the Appeal Court President was done at the request of the

executive branch of government in contravention of the separation of executive and

judicial powers specified in the Constitution," the statement said.

Ghai expanded his dissatisfaction with the judicial appointments to include another

Decree also issued on August 9 that removed three members of the Supreme Council

of Magistry and replaced them with three other judges.

Removed were Om Sarith, Real Muon, and Ty Neng, who were replaced by Khieu Someth,

Sin Dim and Chiv Keng. Keng is also President of the Phnom Penh Court.

These appointments appear "to have been made similarly at the request of the

Executive rather than in accordance with the law," the statement read.

Chiv Keng told the Post that he believes the Decree was an entirely legitimate means

of ending a stalemate in the court system that has been hindering reform.

"The Supreme Council of State Reform had to resolve the problem in order to

improve the judicial system," he said.

National judicial reform

You Bunleng, 49, has been a judge and a law professor in Cambodia since 1993. He

worked in the Ministry of Justice during the 1980s after receiving his Bachelor's

in Law from Ho Chi Minh City University in Vietnam. He received international criminal

investigations training at The Hague before being appointed to the ECCC in 2006.

He said in a statement issued after his new appointment that heading up Cambodia's

Appeals Court in the wake of a bribery scandal "will permit me to play an important

role in Cambodia's current program of legal and judicial reform."

The UN side of the tribunal weighed in earlier with a note to the Permanent Representative

of Cambodia to the United Nations, formally requesting that Bunleng remain with the

tribunal. No answer has yet been received from the Cambodian government, said Peter

Foster, spokesman for the United Nations Assistance to the Khmer Rouge Trial (UNAKRT).

A copy of the August 9 Royal Decree obtained by the Post, indicates it was made at

the request of the Co-President of the Supreme Council of State Reform - Hun Sen

- and the Minister of Justice, Ang Vong Vathana.

But Cambodian law specifies that only the Supreme Council of Magistry (SCM), headed

by King Sihamoni, has jurisdiction over the Kingdom's judges, said Ghai's statement.

"The royal decree of August 9 ... appears not to have been made on the basis

of a decision of the Supreme Council of Magistracy: prior to the issuance of the

decree no meeting of the Council was convened.

"Instead, the decree states that the action was requested by the chairman of

the Supreme Council for State Reform," which is Prime Minister Hun Sen.

Thun Saray, president of ADHOC, a local NGO, said that although national judicial

reform is imperative for Cambodia's future, it should not be done unconstitutionally,

at the behest of the executive branch of the government, or in defiance of the letter

and spirit of the UN/Cambodian government agreement on the ECCC.

"We don't like to say that removing Bunleng from his position at this time is

political manoeuvring," he said. "But we need to express our concern. If

judges can be removed like this they cannot be independent. We cannot allow this

to happen."

Court Unawares

The appointment caught the ECCC administration unaware. In an August 13 internal

memo, a copy of which was obtained by the Post, Michelle Lee, the Deputy Director

of the Office of Administration, said she was "surprised to learn through the

media" of Bunleng's appointment. She requested clarification from Sean Visoth,

the director of the ECCC's office of administration, asking whether Bunleng had really

been appointed President of the Appeal Court, and how it would affect his position

as ECCC co-investigating judge.

The memo said, that the appointment could "be interpreted as a prima facie violation

of Articles 2.7 and 5.7 of the ECCC agreement and Articles 12 and 27 of the ECCC

law, both of which make clear that the ECCC judges and the co-investigating judges

in particular, shall be appointed for the duration of the proceedings."

In response, Visoth wrote in an internal memo that Bunleng had indeed been appointed,

but as he "received this decree only yesterday, 13 August 2007, [he] was unable

to inform [Lee] earlier, and had no idea that this news would unfortunately be leaked

to the press in the intervening period."

Visoth's memo said the Cambodian judiciary is currently undertaking "significant

reform." Bunleng's new appointment was justified as it was the result of "exceptional

circumstances in which the position of the President of the Appeals Court was to

be immediately vacated," he wrote.

The former Appeals Court president Ly Vochleng has been accused by a Monitoring Committee,

established by the Ministry of Interior on March 13 this year, of accepting a $30,000

bribe to release the owner and manager of the Chay Hour II Hotel, who were arrested

for human trafficking in 2004.

Right man for the job

"Bunleng is right for the job," said Theary Seng, director of the Center

for Social Development. "But the timing is not good for the ECCC and the question

is how much was this calculated by the government?"

While few question that Bunleng would be a positive influence at the appeals court,

the way the appointment was made is leading to accusations that the government, trying

to win votes and donor support in the run up to next year's general election and

at the same time displaying a long-standing distrust of the ECCC, is manipulating

the process of court reform for its own ends, said Seng.

"Will the public have confidence in this kind of reform?" she asked. "It

is selective; it is not respectful of the law; it is not done equally across the

board. It is also, in this case, very damaging for the ECCC."

Experts say the government's ability to move Bunleng from the ECCC is shocking in

terms of what it reveals regarding adherence to the doctrine of the separation of

powers, and their commitment to the ECCC.

The reserve judge if Bunleng leaves is Thong Ol, known for his acquittal of former

Khmer Rouge commander Chhouk Rin for his role in the 1994 kidnapping which left three

Western backpackers dead. But for many, what happens now is immaterial compared to

the disillusionment they said they feel in knowing that the government can simply

intervene and reappoint a judge on the tribunal.

"The King Father has already stated that it would be better to go to The Hague

than to have a comedy of a court here," said Son Soubert, a member of the Constitution


"It seems to me that all the Western democracies just want to get rid of the

problem, deal with the Khmer Rouge leaders whose crimes we already know. What is

it going to do - just repeat what the KR crimes are? Everyone knows. Would this court

dare to indict a high ranking official? I don't think it will bring justice."



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