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
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.
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.
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
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
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.
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
"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.
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
"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.
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."
Court is located in the Ministry of Justice building.