To the middle aged law professor and judge, it sounded like a good career move -
a nice promotion to head up the troubled Cambodian Court of Appeals.
But to the UN, it sounded like all too familiar territory - unjust interference in
the Extraordinary Chambers in the Courts of Cambodia (ECCC).
Two weeks after a surprise Royal Decree appointed ECCC co-investigating judge You
Bunleng president of the Appeals Court, the UN has once again pitted itself against
the government in a battle over the much stalled Khmer Rouge trials.
Despite a crescendo of objections from local and international human rights and legal
organizations as well as the UN, Bunleng told the Post this week he intends to take
his new job and will do both jobs for as long as necessary. He told the Post since
he was sworn in at the Appeals Court on August 16 he has been "spending as much
time as usual" at the ECCC to make sure the work of the co-investigating judges'
office is not disrupted.
Yash Ghai, the United Nations Special Representative of the Secretary General for
Human Rights in Cambodia, meanwhile, calls the decree that moves Bunleng to another
judicial posting, unconstitutional and unlawful.
A statement issued August 23 by Ghai said the Decree and ensuing judicial appointments
"appear not to have been made in accordance with the Constitution, casting doubt
on whether the constitutionally-guaranteed principle of judicial independence is
being fully respected."
The "replacement of the Appeal Court President was done at the request of the
executive branch of government in contravention of the separation of executive and
judicial powers specified in the Constitution," the statement said.
Ghai expanded his dissatisfaction with the judicial appointments to include another
Decree also issued on August 9 that removed three members of the Supreme Council
of Magistry and replaced them with three other judges.
Removed were Om Sarith, Real Muon, and Ty Neng, who were replaced by Khieu Someth,
Sin Dim and Chiv Keng. Keng is also President of the Phnom Penh Court.
These appointments appear "to have been made similarly at the request of the
Executive rather than in accordance with the law," the statement read.
Chiv Keng told the Post that he believes the Decree was an entirely legitimate means
of ending a stalemate in the court system that has been hindering reform.
"The Supreme Council of State Reform had to resolve the problem in order to
improve the judicial system," he said.
National judicial reform
You Bunleng, 49, has been a judge and a law professor in Cambodia since 1993. He
worked in the Ministry of Justice during the 1980s after receiving his Bachelor's
in Law from Ho Chi Minh City University in Vietnam. He received international criminal
investigations training at The Hague before being appointed to the ECCC in 2006.
He said in a statement issued after his new appointment that heading up Cambodia's
Appeals Court in the wake of a bribery scandal "will permit me to play an important
role in Cambodia's current program of legal and judicial reform."
The UN side of the tribunal weighed in earlier with a note to the Permanent Representative
of Cambodia to the United Nations, formally requesting that Bunleng remain with the
tribunal. No answer has yet been received from the Cambodian government, said Peter
Foster, spokesman for the United Nations Assistance to the Khmer Rouge Trial (UNAKRT).
A copy of the August 9 Royal Decree obtained by the Post, indicates it was made at
the request of the Co-President of the Supreme Council of State Reform - Hun Sen
- and the Minister of Justice, Ang Vong Vathana.
But Cambodian law specifies that only the Supreme Council of Magistry (SCM), headed
by King Sihamoni, has jurisdiction over the Kingdom's judges, said Ghai's statement.
"The royal decree of August 9 ... appears not to have been made on the basis
of a decision of the Supreme Council of Magistracy: prior to the issuance of the
decree no meeting of the Council was convened.
"Instead, the decree states that the action was requested by the chairman of
the Supreme Council for State Reform," which is Prime Minister Hun Sen.
Thun Saray, president of ADHOC, a local NGO, said that although national judicial
reform is imperative for Cambodia's future, it should not be done unconstitutionally,
at the behest of the executive branch of the government, or in defiance of the letter
and spirit of the UN/Cambodian government agreement on the ECCC.
"We don't like to say that removing Bunleng from his position at this time is
political manoeuvring," he said. "But we need to express our concern. If
judges can be removed like this they cannot be independent. We cannot allow this
The appointment caught the ECCC administration unaware. In an August 13 internal
memo, a copy of which was obtained by the Post, Michelle Lee, the Deputy Director
of the Office of Administration, said she was "surprised to learn through the
media" of Bunleng's appointment. She requested clarification from Sean Visoth,
the director of the ECCC's office of administration, asking whether Bunleng had really
been appointed President of the Appeal Court, and how it would affect his position
as ECCC co-investigating judge.
The memo said, that the appointment could "be interpreted as a prima facie violation
of Articles 2.7 and 5.7 of the ECCC agreement and Articles 12 and 27 of the ECCC
law, both of which make clear that the ECCC judges and the co-investigating judges
in particular, shall be appointed for the duration of the proceedings."
In response, Visoth wrote in an internal memo that Bunleng had indeed been appointed,
but as he "received this decree only yesterday, 13 August 2007, [he] was unable
to inform [Lee] earlier, and had no idea that this news would unfortunately be leaked
to the press in the intervening period."
Visoth's memo said the Cambodian judiciary is currently undertaking "significant
reform." Bunleng's new appointment was justified as it was the result of "exceptional
circumstances in which the position of the President of the Appeals Court was to
be immediately vacated," he wrote.
The former Appeals Court president Ly Vochleng has been accused by a Monitoring Committee,
established by the Ministry of Interior on March 13 this year, of accepting a $30,000
bribe to release the owner and manager of the Chay Hour II Hotel, who were arrested
for human trafficking in 2004.
Right man for the job
"Bunleng is right for the job," said Theary Seng, director of the Center
for Social Development. "But the timing is not good for the ECCC and the question
is how much was this calculated by the government?"
While few question that Bunleng would be a positive influence at the appeals court,
the way the appointment was made is leading to accusations that the government, trying
to win votes and donor support in the run up to next year's general election and
at the same time displaying a long-standing distrust of the ECCC, is manipulating
the process of court reform for its own ends, said Seng.
"Will the public have confidence in this kind of reform?" she asked. "It
is selective; it is not respectful of the law; it is not done equally across the
board. It is also, in this case, very damaging for the ECCC."
Experts say the government's ability to move Bunleng from the ECCC is shocking in
terms of what it reveals regarding adherence to the doctrine of the separation of
powers, and their commitment to the ECCC.
The reserve judge if Bunleng leaves is Thong Ol, known for his acquittal of former
Khmer Rouge commander Chhouk Rin for his role in the 1994 kidnapping which left three
Western backpackers dead. But for many, what happens now is immaterial compared to
the disillusionment they said they feel in knowing that the government can simply
intervene and reappoint a judge on the tribunal.
"The King Father has already stated that it would be better to go to The Hague
than to have a comedy of a court here," said Son Soubert, a member of the Constitution
"It seems to me that all the Western democracies just want to get rid of the
problem, deal with the Khmer Rouge leaders whose crimes we already know. What is
it going to do - just repeat what the KR crimes are? Everyone knows. Would this court
dare to indict a high ranking official? I don't think it will bring justice."