A WORSENING political deadlock over the appointment of judges to the vital Supreme
Council of Magistrates (SCM), is unlikely to be resolved before upcoming elections,
legal experts predict.
Powerful elements within Funcinpec and Cambodian People's Party (CPP) now believe
they have more to lose than gain, if new appointments of judges onto the council
go ahead under a divided government, experts said.
The row over the council means the government, which has been operating for almost
three years without the SCM, is unable to appoint new judges to replace Cambodia's
aging judiciary.
And without the SCM, the Constitutional Council, which should include SCM appointees,
cannot be formed. This leaves Cambodia without an arbitrating body for disputes which
may arise over the conduct of upcoming elections.
Officials from both Funcinpec and CPP have blamed each other for the impasse, and
King Norodom Sihanouk has said he will not convene the council until appointments
of judges onto it are agreed to by both Prime Ministers.
"The composition of the council must be pre-approved and submitted by the two
prime ministers," a Jan 22 statement from the palace said, adding that the King
wanted both councils to start "as soon as possible".
Senior royalist officials say First Prime Minister Prince Norodom Ranariddh wants
half the judges on the powerful magistrates body to be Funcinpec and Buddhist Liberal
Democratic Party (BLDP) judges, to cut back on what he sees as a CPP monopoly over
the judiciary.
Funcinpec's State Secretary for Justice, Uk Vithun, claims the independence of Cambodia's
courts will never be realized unless Funcinpec and BLDP are able to appoint judges,
via the council.
"All of Cambodia's 135 judges were appointed by the CPP in the 1980's...90 percent
of them have no legal training at university... they were political appointments
mainly of former school teachers," Vithun said.
"After the Paris Peace Accords all three parties agreed to share power and lists
of Funcinpec and BLDP judges were submitted for appointments, but until this time
none have been made.
"There is not a single Funcinpec or Buddhist Liberal Democratic Party [BLDP]
judge in the country," Vithun said.
The makeup of the council was set down in a Nov 1995 Supreme Council of Magistracy
Law, as the Minister of Justice and seven judges, to be presided over by the King.
Vithun claims that, of a CPP council nomination list presented to the King, without
Funcinpec consultation, last year, only three nominees are legally eligible to sit
on the body, which requires a quorum of seven to convene.
He says the retirement of the president of the Appeals Court, Judge Heng Chy, means
that position remains vacant - not filled by deputy appeals court judge Ros Lam,
as Justice Minister Chem Sgnuon has recommended.
The State Secretary says the Justice Minister's role as a government official and
the prosecutor of the supreme court - and Phit Phanour's status as a CPP MP - means
they are both constitutionally ineligible to sit on the body.
This leaves the King, the supreme court president Chan Sok - who Prince Ranariddh
has urged to retire because of old age - and the prosecutor of the appeals court,
Henro Raken, as the only remaining eligible nominees, according to Funcinpec.
Legal advisors agree that some of the CPP nominations are ineligible according to
Constitution - which bars government officials from holding other public positions
- and say that all permanent appointments of new judges can only be made by
the council itself.
They said room to compromise could be found in provisions for the appointment of
three temporary judges onto the body and a replacement appointment for the Minister,
but that it is unlikely CPP will be keen to cut deals which would reduce their control
over the court system.
"It is in their interest to stall the council's formation because without it
the CPP-dominated Justice Ministry can maintain control of the administration of
justice," one foreign lawyer said.
However, while Funcinpec may have the moral high ground in the dispute, technically
CPP officials are correct in arguing that appointments should not be politically
based and should be made after the SCM convenes, he said.
In an October letter, obtained by the Post, Second Prime Minister Hun Sen wrote to
Ranariddh, saying he could not accommodate requests from the First Prime Minister
and BLDP for some of their judges to sit on the council.
Referring to a suggestion by Ranariddh in a letter to Hun Sen in September, that
the SCM should "be composed of judges who are members of other ruling parties",
Hun Sen counters that the Council should remain "independent in conformity with
the constitution".
"Political parties should not interfere in managing judicial power," Hun
Sen wrote, claiming that "the judges of Cambodia are not all CPP members".
"If the judicial branch is placed under the control of parties, there will be
pulling back and forth in judicial work. An ordinary conflict will become a political
conflict," Hun Sen said.
Arguing that the replacement of retiring judges should be the responsibility of the
SCM, Hun Sen said that since March 1996 "the supreme body had enough members
to begin its work".
"There's bad blood on the CPP side because after the elections they did promise
to integrate the judiciary as well as the civil service but they didn't do it,"
said one legal advisor.
"But the Funcinpec position is also heading in the wrong direction...By calling
for political appointments, they are treating the judiciary like the army or police.
"The government should be de-politicizing the judiciary. All judges should be
required to resign from CPP positions and all new appointments should be based on
merit," he added.
Meanwhile, some Funcinpec and BLDP officials claim Ranariddh missed his chance to
secure non-CPP judiciary positions by agreeing to pass the magistrates law before
judges from their parties were incorporated into the court system.
