Court Rulings Increasingly Trumped by Cabinet

On Jan 6, Phnom Penh Muni­cipal Court officials and Chamkar Mon district authorities were poised to enforce a Supreme Court verdict and finally end a vexing home ownership dispute that had dragged on for more than a year.

The Supreme Court had ruled in favor of Kong Pheach’s claim to ownership of a house in the district, and in so doing upheld the ear­lier decisions of the municipal court and the Appeals Court, which had both agreed that he was the rightful owner.

Municipal court and district officials were ready to enforce the Supreme Court’s decision, but were stopped dead in their tracks by a government “notice.”

Seng Sophal, who also claimed the property, had lost three times in court to Kong Pheach. But, un­daunted by the decisions, he took his claim to what is increasingly be­coming the unofficial court of final appeal: the Council of Min­isters, the nation’s cabinet.

He addressed his complaint to the Council of Ministers’ Supreme Council of National Economics, and his letter eventually ended up on the desk of Prime Minister Hun Sen, who on Dec 20 en­dorsed Seng Sophal’s criticism of the Supreme Court’s verdict by initialing the letter.

Ten days later, the notice was is­sued. “The Ministry of Justice should propose to the Supreme Court president regarding the possibility of revising this case,” stated the Dec 30 Council of Ministers’ letter signed by Secretary of State Prak Sokhon.

Prak Sokhon wrote that reviewing Seng Sophal’s case would “be considered jurisprudence to find real justice, equality and truth for the people.” He also advised the justice ministry to “take action to investigate further and directly inquire into the case to find out more accurate information.”

The Council of Ministers’ letter effectively ended Kong Pheach’s short-lived legal victory. The ownership dispute is now back at the Municipal Court, where an invigorated Seng Sophal is having another stab at the judicial process, but this time supported by the Council of Ministers document.

“This kind of notice is becoming very popular now,” a municipal court judge said last week on condition of anonymity. “Frequently, the court is under the command of [government no­tices],” the judge said, adding that such documents are becoming pop­ular ways to either win cases or, at the least, delay Supreme Court verdicts.

But in a country governed by rule of law, such a practice is illegal, experts said. “The government notice has no power to annul the Supreme Court’s verdict,” said Sok Sam Oeun, director of the free legal aid NGO Cam­bodian De­fenders Project. “There should be no interference by the government,” he said.

Lawyer Som Chandina, who has represented opposition leader Sam Rainsy, said such notices have no jurisdiction over a Su­preme Court verdict, but failure to heed them could lead to judges or prosecutors losing their positions. “The notice is not more powerful than law. But it comes from the powerful person,” he said.

Though Article 207 of the 1993 Law on Criminal Procedures states that the “decision of the Su­preme Court is sovereign,” Coun­cil of Ministers documents ob­tained last week show that notices have been issued since at least 1996 urging the Ministry of Justice to prevent prosecutors from implementing Supreme Court verdicts.

Retired Kandal Provincial Court prosecutor Chheng Phat said last week that he still remembered the power of one such notice in 2000.

Responsible for implementing a Supreme Court verdict involving a land dispute in Kandal’s Sa’ang district, Chheng Phat said he was prevented from doing so by a government notice. Police officers who were to help en­force the verdict would not travel with the court of­fi­cials after the notice was issued, he said.

“The law enforcement officers dared not come with us because they obey the orders of the powerful people,” Chheng Phat said.

“Enforcing a Supreme Court verdict is a bitter job,” he added.

Though court officials said such notices can overturn or at least stall a verdict, Ministry of Justice Secretary of State Tuot Lux said such activity does not take place.

The notices, he said, are merely letters of concern regarding possible injustices in court, and ways to shore up loopholes in the judicial system that may leave a person fi­nancially harmed by a ruling. “The gov­ernment understands the people’s living conditions so it just re­quests for a delay,” said Tuot Lux, add­ing that stalling a verdict al­lows “more time to help the loser.”

“However, the sovereign verdict may still be enforced,” he maintained.

Requests to stall a verdict are usually made by the justice ministry to the prosecutor after the ministry has received a notice from the government that enforcement of a verdict would damage an individual’s livelihood.

Municipal Court Chief Prose­cutor Ouk Savouth declined to discuss the notices in detail, but confirmed that prosecutors were under the orders of the Ministry of Justice. “If the ministry orders to do, the prosecutor will do. It is not difficult,” he said.

But the Ministry of Justice wasn’t always so compliant when it came to Council of Ministers notices and failure to implement the Supreme Court’s verdicts.

In September 1998, then-justice min­ister Chem Snguon wrote to the Council of Ministers warning that prison would await a municipal official who failed to send po­lice to help a prosecutor enforce a Su­preme Court verdict in a land dis­pute. He warned, “If you blocked the law enforcement officers from complying with the pro­secutor’s orders, you should be charged by the court for blocking the business of the court.”

Shortly after Chem Snguon’s intervention, the verdict was en­forced, a court official said.

 

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