Logo of Phnom Penh Post newspaper Phnom Penh Post - New Appeals Court gets into action

New Appeals Court gets into action

New Appeals Court gets into action

T HE country's new Appeals Court heard its first three cases on July 25. You Bun

Leng, an Appeals Judge told the Post that the court heard three land dispute

cases.

According to the Constitution, there is to be one Appeals Court

and one Supreme Court. The provinces and Phnom Penh have a single lower court

each. A new post-election Supreme Court has yet to be set up. In its absence the

SOC-regime Supreme Court remains the highest in the land.

When the

Appeals Court was inaugurated on May 12, UN human rights envoy to Cambodia

Justice Michael Kirby wrote a letter to the Royal Government congratulating it

on its organization. The delay in hearing the first cases was caused by court

staff having to process the paperwork on 70 cases waiting to be heard. Cambodia

has not had an Appeal Court since the Khmer Rouge years.

The Appeals

Court has seven judges, an Attorney General or chief prosecutor, an assistant

prosecutor and forty clerks. It will receive cases which are appealed from the

lower courts in Phnom Penh and the provinces.

The President of the Court

HE Heng Chi in an interview with the Post said: "The legal framework for the

court is [set up by] the 1992 Untac law and the State of Cambodia law of

1993."

Heng said the initiative to set up the court began over a year

ago, but the establishment of the court was hindered by a search for suitable

staff.

He said: "There is as yet no relative rank established among the

seven other judges."

The establishment of such a hierarchy depends on

the passage of the Council of Magistracy Law, the law which governs the

functioning of the judiciary.

Heng said: "In the interim the judges are

organized by seniority with the Justice Ministry."

The passing of the

Magistracy Law has been stalled in the National Assembly since April because the

initial draft included the Minister of Justice on a council that would have the

power to hire, fire, regulate and discipline judges.

Funcinpec and BLDP

members believed the draft threatened judicial independence. They put together a

competing draft bill which excluded the Minister of Justice from the council.

Heng believes there will be a compromise between the drafts.

He

said: "Some members of the National Assembly protested that the law submitted by

the Ministry of Justice and the Council of Ministers did not guarantee an

independent judiciary.

"Members in the National Assembly believe that if

a member of the government sits on the Council of Magistracy, judicial

independence will be impossible."

"In principle this is correct, but in

the real situation in Cambodia, we cannot do this. The situation in Cambodia is

that the Ministry of Justice controls the General Administration.

"As

far as the outward appearance is concerned it seems like the Minister of Justice

controls all the courts, but in all the work in the previous regime and the new

regime the Minister has not interfered in the technical work of the

courts.

"Among those who oppose the law are many who come from the United

States and France.

"They come into Cambodia with the structure or system

of their own country in their minds, and they see the newly drafted law and they

believe that it cannot ensure the independence of the courts.

"But with

regard to the real situation in Cambodia we have to do everything step by step.

We cannot bring a perfect law to Cambodia immediately.

"I have noticed

that among the judges themselves they have not understood what independence

means. Moreover, they themselves have no means to maintain their independence.

The main reason is that their understanding of the law is low.

"As to the

Council of Magistracy, it is not a big question if the Minister of Justice is a

member of the Council of Magistracy.

"However, a problem may arise if

the Minister of Justice is allowed to be the representative of the King in the

meetings of the Council.

"According to the law the King will chair the

council, but when he is not present, his representative will take his place.

"It is a problem if the Minister of Justice is the representative

because the judges are afraid of the Minister.

"The Council of Ministers

has the role to supervise the discipline of the judges, to look at the proposals

to relocate, dismiss or promote judges.

"All of these administrative

actions have to go through the Council of Magistracy.

"Because of these

attributes of the Council of Magistracy it can ensure that the executive power

cannot affect the independence of the judges."

"If the Minister of

Justice is only a member of the Council, and not its President, then he will

only be one voice, and the other judges will be many voices."

The Appeals

Court is located in the Ministry of Justice building.

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