Independence in Question as Courts Restructure

A proposed “Law on the Or­gan­ization of the Courts” under consideration by the Ministry of Justice would likely give broad authority not only to the Military Court but also to a new “ad­ministrative court,” ac­­cording to a draft of the law ob­tained last week and dated June 26.

Legal experts spoke warily Mon­day of the administrative court, which could be given wide la­titude to adjudicate cases involving the government—such as land swaps, tax issues and complaints against public institutions or officials—and which some experts suggested might fall too much under the sway of the Council of Min­ist­ers and Deputy Prime Minister Sok An.

“We have concerns that the ad­ministrative court proposed in the current draft has very broad powers to deal with cases involving the government,” said World Bank le­gal specialist Daniel Adler, “and that it may not be sufficiently independent to do so effectively.”

Adler praised the government, however, for circulating the law to do­nors in draft form before forwarding it to parliament for a vote.

“There are several issues of concern in the draft law,” said Sara Fer­rer Olivella, a legal and judicial re­form specialist at the UN De­vel­op­ment Program.

“The scope of the jurisdiction is very important, and the appointment of personnel is very important,” she said of the proposed ad­min­istrative court in particular.

Ferrer Olivella also questioned wheth­er the administrative court was necessary, especially considering what she characterized as a tight Ministry of Justice budget, and whether it would be sufficiently independent.

She said such matters were to be discussed with government officials at a regularly scheduled technical meeting on Monday.

Among the issues that would be under the court’s jurisdiction, ac­cording to Article 74 of a draft law’s unofficial translation, are “legal dispute,” “administrative contract,” “dis­pute on road use,” “public function dispute,” and “dispute of individuals or legal entities filing a complaint against the decision of public authorities.”

Article 74 also relegates to the administrative court “any dispute outside the jurisdiction of the common legal court” and “administrative dispute filed by the Royal Gov­ernment.”

What is meant by these terms, however, is not specified.

“It is too broad,” said Sok Sam Oeun, executive director of the Cam­bodian Defenders Project. “What is ‘legal dispute?’”

He also wondered why tax disputes would go to the administrative court instead of civil or criminal court, and why disputes filed by the government would in effect be judged by government officials.

Sok An, who is also the minister in charge of the Council of Min­is­ters and president of the Council of Jurists, would apparently be given wide-ranging powers, ac­cording to the draft law.

In addition, judges in the court would be comprised entirely of members of the Council of Jurists, which is affiliated with the Council of Ministers.

“The administrative court shall consist of judges appointed from among the senior government officials…. [A judge] shall have at least five years experience working as government official with the council of jurists of the Council of Min­isters,” Article 76 of the draft law reads.

“It is better to use a normal judge—they should not recruit from the executive” said Sok Sam Oeun, explaining that judges could be trained in administrative law to avoid appointing government officials.

He said he also worries the court could become simply an extension of the Council of Jurists, especially since Article 85 of the draft law stipulates that a judge will be removed when “he or she stops working for the council of jurists.”

Sok An would be responsible for appointing the officials in charge of administering the court according to Article 78 that states: “The director and assistant(s) of the secretariat shall be appointed by the Min­is­ter in charge of the Council of Min­isters.”

Sok Sam Oeun said the secretariat would likely be responsible for referring cases to the court, com­­­municating between the court and political parties, and organizing its day-to-day operations.

The deputy prime minister might also play a large role in disciplining the court’s judges.

According to Article 87, a five-member Disciplinary Commission would be responsible for sanctioning unruly judges. The minister in charge of the Council of Ministers is listed as the commission’s co-chair along with the president of the Supreme Court. “In case of equal vote,” the draft law reads, “the vote of the co-chair shall prevail.”

Sok Sam Oeun said he was also concerned that the administrative court could be immune to appeal. Article 74 of the law, he pointed out, says the administrative court is a “first level court.”

But buried in the second paragraph of Article 83 is this ambiguous clause: “The decision of the ad­ministrative court may be the first and final decision by closing any appeal provided that it states the procedure of the administrative dispute.”

Tuot Lux, secretary of state for the Ministry of Justice, said Sun­day that the law was still under consideration.

“[The law] was sent once to the Council of Ministers, but the Coun­cil requested the ministry re­view it again,” he said, adding that Hy So­phea, secretary of state for the Min­istry of Justice, was responsible for reviewing the draft.

“We need to compare, verify its contents with other laws,” Hy So­phea said Sunday.

Article 128 of the Constitution states that the courts should be in­dependent and that their jurisdiction should also include administrative affairs.

“The Judicial power shall be an independent power,” the Con­sti­tu­tion reads. “The Judiciary power shall cover all lawsuits in­cluding administrative ones.”


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