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Independence of judiciary questioned

Independence of judiciary questioned

T HE Government's proposed revamp of the justice system to make it more independent threatens to do the opposite, human rights groups say.

Concern that the judiciary may be entrenched under the influence of the Cambodian People's Party has been raised by several proposed new laws.

Critics say the laws include guarantees of the judiciary's freedom from the government and political parties, but at the same time give too much power to the Ministry of Justice.

The Minister of Justice, CPP member Chem Snguon, has reaffirmed his commitment to ensuring an independent judiciary and acknowledged that one of the laws may be unconstitutional.

His comments were welcomed by the government's critics but his proposal to resolve the problem failed to silence them.

The Minister will play a key role in the hiring, firing and promoting of judges under two of the draft laws.

A third will introduce a professional class of lawyers to Cambodia, with strict eligibility criteria which opponents say could initially favor CPP supporters.

One human rights worker, who would not be named, said there appeared to be a strategy by the CPP to ensure the judicial system it had controlled for years remained under its influence.

"Cambodia does not have a history of an independent judiciary. It will not have one if this goes ahead."

He questioned why, except for a dozen or so MPs, there had been little dissent from politicians, particularly those in the election-winning Funcinpec party.

"They don't get it - that they are handing over the third branch of government (to the CPP)."

An international human rights official said the first of the laws, currently before the National Assembly, provided "a lot of potential for mischief" which could have disastrous effects.

The draft law would establish a Supreme Council of Magistry to make recommendations on the hiring, firing, promoting, demoting and disciplining of judges.

The chairman of the nine-person council would be King Sihanouk or his nominated representative.

The other positions on the council - which is charged under the constitution with "assuring the independence of the judiciary" - would be filled by the Minister of Justice and seven judges and prosecutors.

Minister Chem Snguon's inclusion on the council appears to be unconstitutional.

The constitution explicitly bars National Assembly members and government ministers from holding other public functions, and states that "legislative, executive and judicial powers shall be separate".

Critics argue the council's independence would be further jeopardized because it would be dominated by judges and prosecutors originally appointed to their positions by the CPP.

"They will toe his (the Minister's) line; they can be hired or fired," said one.

The United Nations Center for Human Rights in Cambodia and private human rights groups have made repeated recommendations, so far ignored, for changes to the draft law.

It was initially presented to the National Assembly in February but withdrawn after opposition from a small group of MPs led by Kem Sokha, chair of the assembly's Commission on Human Rights.

It was retabled on the assembly's agenda in mid-November, while Kem Sokha was on an overseas trip.

On November 24 a group of dissident MPs including former finance minister Sam Rainsy and Kem Sokha, then back in Cambodia, successfully stalled the assembly from debating the law. By press time it had not been debated.

Kem Sokha, a BLDP member, told the Post he was hopeful enough MPs from his party and Funcinpec would vote to throw the bill out once they realized its implications.

Minister of Justice Chem Snguon later told the Post he acknowledged that the constitution made it "incompatible" for him to sit on the council and be an MP and minister.

He therefore intended to appoint a representative, probably an Undersecretary of State, to sit on his behalf.

"I have been trying my best to guarantee and ensure the independence of the judiciary so if the draft (law) is passed, I will not go on the council - it will be someone else."

A human rights worker said the minister's solution, while a slight improvement, was not nearly enough.

Having a ministerial "representative" on the council, rather than the minister himself, would still breach the constitution's requirement that the state and the judiciary be separate he said.

Critics also point to a second draft law, yet to go before the National Assembly, which they say would further entrench links between the Ministry of Justice and the judiciary.

The Statute of Judges law would make the Minister, in consultation with the Supreme Council of Magistry, responsible for making recommendations to the King on the appointment of judges.

The Minister would also chair a judicial promotion commission.

Judges would be promoted on the basis of an unspecified Ministry of Justice "record chart" they would fill out each year, for which they would be given "scores" by members of the commission.

Any allegation of disciplinary abuses by a judge would be investigated by another judge appointed by the Minister, who would then prepare a dossier on the case for a Disciplinary Council to consider.

While both draft laws state judges must not be subordinate to the government, the National Assembly or political parties, critics say many provisions in them contradict that.

One bill goes so far as to ban judges from publicizing "any text or writings that (are) concerned with the functions of judges" without prior Ministry of Justice approval.

A legal expert said there were gaping holes in the laws as well. For instance, there was nothing about what a judge could be sacked for.

"Presumably they can be removed from office on any ground whatsoever - that they wear blue shirts?"

Overall, the laws did nothing to change the "dependency complex" that had existed between the courts and the government since the Pol Pot years.

"It would be a disaster if that same power structure is maintained," he said.

Meanwhile, human rights groups are also concerned about a third law prepared by the Ministry of Justice which would establish a Bar Association of Cambodian lawyers.

The proposal would restrict entry to the association to Khmers who are law graduates and are certified as competent by a judicial body.

There would be some exemptions for Khmers who are judges or former judges or who have at least two years' experience in the law.

Critics say the exemption criteria favors current or former judges, prosecutors, court-clerks or government-paid public defenders - all appointed by CPP before the UNTAC elections - who want to be lawyers.

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