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Logo of Phnom Penh Post newspaper Phnom Penh Post - That separation of powers thing

That separation of powers thing

Chea Sim called in sick to work on May 20 - no great problem, normally. But Chea

Sim's absence that day may be worth attention, as he is an important man who wears

many hats.

Not only is he the president of the CPP and the man who stands in for the King as

head of state when the monarch is abroad, he is also the National Assembly president

and the King's representative to the nation's top judicial oversight committee, the

Supreme Council of Magistracy.

That's a lot of jobs for one man - a fact not lost on Assembly Deputy Vice-President

Son Sou-bert, and others.

Soubert said in fact that it is too many hats, according to the Constitution,

which is why the high-ranking Assembly opposition figure decided to write a letter

to alert King Norodom Sihanouk - leaving some to wonder if that could be the source

of the 65 year-old Sim's sudden illness.

"I took the occasion to tell him that in principle, the separation of power

in the legislature does not allow [those in parliament] to be involved in the 'independent'

judiciary," Soubert said, citing Article 51 of the Constitution, which delineates

the separation of the legislature, executive branch and judiciary.

"While the King is in Cambodia, Samdech Chea Sim is president of the National

Assembly," he pointed out.

"I did not ask anything. I only informed him and noted that he can choose his

[magistracy council] representative."

The King, who often shows great respect to the CPP's elder statesman, forwarded the

May 13 letter to Chea Sim in the days before Sim's sudden illness, a palace official


While the King has staunchly resisted making suggestions that could be interpreted

as political, he often forwards requests he receives to powerful members of the government

who are in a position to do something about them.

Some interpret the King's actions as diplomatic but assertive attempts to obtain


At the Justice Ministry on May 20, where five of the nine members of the council

of magistracy met to choose the last three appointees to the Constitutional Council

but were short two for a quorum, one official said they would not convene another

meeting until Chea Sim "feels better". At Post press time, Chea

Sim was still believed to be sick.

One legal observer said they were told the meeting would be put off for one week.

"Maybe the CPP were feeling some pressure," he said, pointing to the large

number of complaints about at least two CPP officials "wearing too many hats"

in the process of stacking the Constitutional Council with CPP members.

While three elder statesmen were chosen by the King, three others elected by the

National Assembly on May 8 were CPP - Bin Chhin, Yang Sem and Top Sam.

The three selected by the magistracy council are certain to be CPP-friendly as all

the candidates who got applications in on time are either party members or have shown

themselves to work within the party's judicial vision.

Son Soubert said he did not make any suggestion to the King about what he should

do, as that would not be in line with proper protocol.

He said he only pointed out the King's legal right to name whoever he wants to the

magistracy council, be they a CPP member or not.

Another man who is sick is Justice Minister Chem Snguon.

His illness has also drawn a lot of attention in recent weeks. In his case, there

is little doubt that he really is sick as he only recently returned from a month

of medical treatment in Paris for an ongoing and serious ailment.

Due to his failing health, he was unable to answer questions about whether the constitutional

sanctity of the judiciary had been violated by those in the executive and legislative

branches of the government.

One man in good health is Svay Sitha, an aide to the Minister of State of the Council

of Ministers, Sok An. He was well enough to defend Chea Sim and his boss from accusations

that they had violated the sanctity of the judiciary, even though their main jobs

are in other branches of power.

The powerful Sok An filled in for Snguon at a meeting of the magistracy council,

and decided to publicize the procedure by which the selection process would be conducted.

Legal observers said this went against the magistracy council law, which calls for

the body's members to decide on their own procedures in making their Constitutional

Council appointees.

They said it was not clear under what authority Sok An filled in for the Justice

Minister - rather than the secretary of state for Justice, Funcinpec loyalist Uk

Vithun, as the Secretary of State is supposed to do by law.

But CPP officials under Sok An explained that when a minister is absent or incapacitated,

a "gentle-men's agreement" usually allows another member of his or her

party to fill in.

"The point is that when [Sok An] convened the meeting, he was acting-Minister

of Justice. There is no interference by the executive branch," Svay Sitha said.

"Everything is [still] decided by the Supreme Council of Magistracy."

Asked under what authority Sok An was able to decide on the procedures to be used

in the selection of the Constitutional Council members, rather than allowing the

council to set out the procedures itself, Sitha said his boss was only following

the orders of top legislative official Chea Sim when he called the meeting.

"What we have done has nothing to do with the Constitutional Council. The King

named Chea Sim. Chea Sim gave the green light to Sok An," Sitha said.

Asked about Chea Sim's possible conflict of interest in being the head of parliament

and atop a judicial body that exists to guarantee the independence of the judiciary,

he said that while the constitutional division of the branches of power appeared

to mean that officials cannot have a foot in two branches of the government on the

same day, they may switch on a regular basis - as long as the right paper work is

filled out.

"While he leads the Supreme Council of Magistracy, [Chea Sim] is no longer chairman

of Parliament. There is no link between him as chairman of the National Assembly

and head of the council," Sitha claimed.

Besides, he said, Chea Sim always makes sure to appoint National Assembly vice president

Loy Sim Chheang to the top slot in the Assembly whenever Sim fills in as head of

the council.

Despite the numerous moans by legal observers that the alleged constitutional violations

will dog the legitimacy of the appointments to the Constitutional Council - which

can decide on the ultimate validity of elections and which has the right to verify

the constitutionality of all laws - the CPP is certain to finish stacking the Council

in its favor when the final three members are selected.

Legal observers say a number of other points cast a shadow on the legality of any

magistracy council selections to the Constitutional Council, including:

ï the fact that magistracy council member Ti Neng is not a judge, as is required,

but merely a high-ranking Justice Ministry administrator;

ï that two members of the magistracy council are themselves candidates for the Constitutional

Council, leaving questions as to whether they will be neutral if permitted to vote

for their own appointment - and if they cannot vote, whether the council while have

the seven members present to reach a quorum;

ï and whether interim Chief Justice of the Appeals Court, Ros Lam, will be allowed

to vote at all because he is not a fully accredited member.

One lawyer in Phnom Penh also challenged the ethics of several candidates for the

Constitutional Council, saying Supreme Court Chief Justice Chan Sok told him last

year, without being solicited, that his duty as chief justice is "to implement

[CPP] party orders".

Chan Sok was a top legal official under the Vietnamese-backed government of the 1980s

who prepared several repressive decrees, including the broad-brush 1981 law on treasonous

behavior that was one of several used to charge and convict Ranariddh in March.

All things considered, one western diplomat said he expects to see a Constitutional

Council "running very poorly" and "with dubious political neutrality"

at the time of elections.

The diplomat said that the fact that the Constitutional Council may actually begin

working soon, nearly five years after it was created on paper by the Constitution,

is a good thing.

"There is hope that over time, they will become a more independent body.

"But for this election there is no time for that. It is loaded toward one political


The diplomat noted that all the necessary structures sought by the international

community will be in place "but it won't really mean anything".



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