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The fight for judges: who to listen to?

The fight for judges: who to listen to?

I N apparent response to Funcinpec's expulsion of eight MPs, the judiciary has become

the target of conflicting instructions from government officials including the two

Prime Ministers.

In what legal observers say is continuing efforts by politicians to control supposedly-independent

judges, a total of five circulars were sent to Cambodia's courts in the past six

weeks, each countermanding the one before it.

The row began with a circular to judges from Minister of Justice Chem Snguon dated

Apr 11, four days before Funcinpec Minister and MP Ung Phan launched his breakaway

to challenge Prince Norodom Ranariddh as party leader.

The circular effectively allowed judges to grant injunctions, stating that "From

now on, judges may issue judgments at the request of any party who is very urgently

in need of preventing the destruction of his/her legitimate interests," according

to an unofficial translation.

The reason for the circular is unclear, but Snguon cited the "rapidly evolving

situation in the country" and the "problems of emergency risks" which

could "affect the legimitate interests" of citizens.

One political and legal observer suggested Snguon's motivation was political, implying

that the Minister had advance knowledge of Ung Phan's breakaway and that it was likely

Funcinpec would expel him and his followers from the party. The observer speculated,

while acknowledging there was no direct evidence, that Snguon was clearing the way

for any expulsions from Funcinpec - and subsequently from the National Assembly -

to be legally blocked.

Regardless of Snguon's motive, the matter soon became the subject of political tit-for-tat,

as Funcinpec tried to annul the Minister's circular and CPP tried to enforce it.

Based on the circular, the Phnom Penh Muncipal Court Apr 22 granted a request by

Ung Phan, Toan Chhay and six other Funcinpec renegades to order that Funcinpec's

expulsion of them four days earlier be suspended.

On May 5, while Snguon was out of the country, the Funcinpec Secretary of State for

Justice Uk Vithun wrote to both Prime Ministers asking their permission to suspend

the Minister's circular.

Vithun wrote that the Ministry of Justice had no power to "create new laws or

legal procedures", which was the job of the National Assembly.

Of Snguon's circular, he wrote: "I was surprised to find that this circular

does not refer to and is not provided for in any code, law, custom or legal procedure

which is currently enforceable in the courts of the Kingdom of Cambodia."

Three days later, Vithun wrote to all judges informing them of the "suspension

and rejection" of Snguon's circular.

Vithun ended his letter by informing judges that "presently, our courts' reputations

are worse than they have ever been before", and urged them to pay great attention

to the law and to be independent.

The counter offensive was not long in coming. It was signed personally by Second

Prime Minister Hun Sen, while his co-Prime Minister Ranariddh was out of the country.

In a brief May 10 "Royal Government decision", Hun Sen wrote that Vithun's

instructions to judges were "dissolved".

In a hand-written annotation to the document, Hun Sen wrote that he signed it "in

the absence of Samdech Krom Preah [Ranariddh], while he is in France to train students".

Chem Snguon, upon his return to Cambodia, issued a further circular to judges May

14 reaffirming his initial circular permitting them to grant injunctions.

The letter criticized Uk Vithun, saying that for a lower official to reject the decision

of a Minister was a "serious fault".

Snguon did not accept that Vithun, as acting Minister in his absence, had the right

to make such decisions. Acting Ministers are "authorized to perform only daily

routine work", Snguon wrote.

The Minister appealed to judges to ignore "unjust" words and allegations,

and praised them for whole-heartedly performing their duties for the good of the

people.

But if Hun Sen stood by his minister, so Prince Ranariddh stood by his Secretary

of State.

In a May 23 "clarification to public authorities", Ranariddh wrote that

he considered Vithun's cancellation of Snguon's circular to be "legally right".

Snguon's initial letter to judges should be considered "null", Ranariddh

said.

Chem Snguon could not be reached for comment by Post press time, but Uk Vithun maintained

that the Municipal Court's judgment on the Funcinpec expulsions was not valid.

"It was very new for me. Judges take decisions on the law, but never based on

circulars," the Secretary of State said May 27.

"I do not know why Chem Snguon took this decision. He decided alone and sent

it to all the judges and courts. I was not informed," said Vithun, but he declined

to say if he thought the minister's circular was politically-motivated.

A senior Cambodian lawyer, who asked not to be identified, said that there was nothing

in the current legislation which permitted court injunctions. However, many countries

allowed courts to grant injunctions, he said, and such action had been permitted

in civil cases in the 1960s in Cambodia.

Of Snguon's move, the lawyer said: "It is too much political and it has been

set up for political reasons.

"Uk Vithun's decision has been legalized by First Prime Minister. Chem Snguon's

one has been legalized by Hun Sen. There is no more government in Cambodia."

Quite what Cambodia's judges made of it was unclear, but the lawyer had little doubt

of whose orders they would follow: all judges were CPP-aligned, he said.

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