There are fears that recent widespread intervention in the Courts by the Government
will channel more power and bribes to the police forces and at the same time undermine
the concept of Judicial independence.
Prime Minister Hun Sen's order to re-arrest 195 suspects released by the Phnom Penh
municipal court and the suspension of court chief Oum Sarith and prosecutor Kan Chhoeun
was done in the name of ridding the courts of corrupt officials.
However, it has failed to address the problem of perpetrators who bribe their way
out of police custody. And at the same time it gives the police greater authority
to over rule or dictate court proceedings, thus turning the courts into a mere rubber
stamp for police actions.
"There is already a lack of cooperation between the courts and the police. This
latest move tips the balance towards strengthening the police and making the courts
more irrelevant," says Sara Colm of Human Rights Watch.
Eva Galabru of human rights organization Licadho adds:
"It will not stamp out corruption. It will only mean a shift in who gets the
money. If the police turn you over to the courts, you are basically already found
guilty. Like it was in the 1980's when the courts were only a window-dressing device
to determine the length of the sentence".
When visited by the Post, municipal court officials explained that they would now
cease to issue arrest warrants on their own initiative.
"We are not going to issue arrest warrants anymore because we are afraid that
the police will not respect our order. We will process the court cases if new suspects
are arrested by the police," said one prosecutor who wished to remain anonymous.
Both the prosecutor and deputy court chief, judge Nob Siphon, downplayed the suspensions
of Sarith and Chhoeun. Siphon called the matter a "kind of democracy game"
played by the country's leaders, but refused to explain the meaning.
According to human rights organizations, tens of cases throughout the country prove
that violence and bribery at police level is not uncommon.
In October last year a woman was arrested by police from Prampil Makara district
- one of the police units now re-arresting former suspects. The woman was accused
of robbery or accessory to robbery and severely tortured during custody, ostensibly
to obtain a confession. During the beatings, police officers offered to release her
if she paid a large amount of money.
And less than one month ago, Kong Vanna, a deputy commander in Hun Sen's bodyguard
unit with the rank of colonel was arrested by military police for shooting and killing
his brother-in-law. After negotiations at the station, no charges were pressed and
Vanna was released.
Also, one human rights worker who has interviewed several re-arrested suspects and
their families found that relatives often said that the court never asked them for
bribes, but the police did.
"The police complain - and rightly so - that they risk their lives arresting
suspects and then the courts release them again, sometimes because of lack of evidence,
sometimes because of bribery," explains Colm.
"But at the same time judges and prosecutors have pointed out that the police
is also part of the problem. They ignore the power of the courts and show a lack
of respect for judicial processes. Proper judicial reform has to involve both courts
Meanwhile, the current wave of re-arrests only targets former suspects who were released
from Phnom Penh prisons T3 and PJ after the municipal court had investigated or processed
One prominent name is however missing from the list of 195 former suspects: Hun Pisei,
the nephew of Prime Minister Hun Sen who was held in pretrial detention for one month
and released from PJ prison in August. Hun Pisei was arrested after discharging a
gun and injuring two people outside a nightclub in Phnom Penh.
The Prime Minister's order to re-arrest released suspects came immediately under
fire from both legal and human rights experts. They criticize Hun Sen for interfering
with the country's justice system, which is a violation of the Constitution.
"We see this as a regression that undermines any progress made towards the rule
of law. It clearly shows how susceptible and vulnerable the judiciary is to political
pressure and orders," says Colm.
Demelza Stubbings of Amnesty International agrees:
"This is very depressing. In the short term it may be a popular solution. But
on a medium and long term basis, the consequences for the rule of law are shocking".
"We have been trying to encourage the judges to move away from giving in to
political pressure. Now that is completely gone. And so is the principle that you
are innocent until proven guilty. Show me a judge who will now dare to examine the
evidence of a case and dismiss it".
UN Special Representative for Human Rights in Cambodia, Thomas Hammarberg expressed
the same concerns in a written statement earlier this week:
"The arrest and detention of suspected offenders is solely under the jurisdiction
of the judicial power, vested in the Courts of Cambodia. No other branch may order
the arrest and detention of persons. Neither may decisions of the courts be overruled
by a non-judicial body," Hammarberg wrote.
Hammarberg and other human rights workers point out that Cambodia already has a body
that is designated to deal with complaints over individuals in the justice system
and corrupt court rulings, namely the Supreme Council of Magistracy.
"All these cases should absolutely go before the Supreme Council of Magistracy,
since corruption could be involved. Unfortunately the Council is not working because
there has been no political support or will to let it work," says Galabru.
And the current handling of the 195 cases of former suspects who were released during
the past year, make their proposed retrial a highly dubious affair.
At least 27 of the former suspects were previously held in pretrial detention for
more than six months, which alone is sufficient grounds to dismiss a case.
This time around, police have had no warrants to base the re-arrests on - some of
which have taken place in the middle of the night. Also, on the detention warrants
that police following an arrest obtain from the courts, officials have no charges
to state on the document. Instead they write that the suspect has been charged according
to the orders of the Prime Minister.
Among the 48 former suspects that have so far been arrested again, the whereabouts
of ten are still unaccounted for.
On Dec 8, the newspaper New Liberty News alleged that six of the suspects were killed
in order to silence them. The paper, citing information from a policeman, claimed
that the six were initially released from Phnom Penh prisons after interference from
high government officials from the Ministry of Defense and the Ministry of Interior.
Among the re-arrested who have been located and contacted by human rights groups
are at least seven who were acquitted in a court hearing. Others were released on
bail or because the charges against them were dropped.
Two former suspects, now re-arrested, were released by the Supreme Court and one
by the Court of Appeals. One suffers from mental health problems.
Also among the re-arrests are at least five minors, one of whom - a 14-year-old boy
- received a suspended sentence for participating in a gang robbery. His uncle claims
that there were no weapons involved in the crime. The boy has now left the gang environment
and before his second arrest he was studying at a private school.
Nevertheless, four re-arrested suspects have already been released again. This applies
to two former suspects of rape, one former suspect of murder and one former suspect
of human trafficking. One of the former rape suspects is believed to be the son of
one of Senate President Chea Sim's bodyguards.
When questioned about the releases, Daun Penh Police claimed that these crimes were
not mentioned in the Prime Minister's re-arrest order. Hun Sen's letter only lists
armed robberies, kidnap-pings and drug trafficking.
On the other hand, at least one former murder suspect and two suspected human traffickers
are still detained in other police districts and the original list of the 195 former
suspects contains several such offenses.
"This is not a very consistent policy," remarked one human rights worker.
The inconsistencies don't stop there. To begin with the Ministry of Justice's suspension
of Sarith and Chhoeun is illegal. The Constitution clearly states that only the Supreme
Council of Magistracy can suspend judges and prosecutors.
Sarith is in fact himself a member of the Supreme Council.
And in an article from Rasmei Kampuchea on Dec 6, a Ministry of Justice official
disclosed a list of 11 prosecutors and 17 judges whose work will be investigated
by the Supreme Council. Neither Sarith nor Chhoeun appear on the list that was submitted
to the Supreme Council in early December.
Phnom Penh Governor, Chea Sophara, and Minister of Justice, Uk Vithun, could not
be reached for comments before Post deadline.