A member of the Constitutional Council criticized Prime Minister Hun Sen after the premier appointed lawyer Benson Samay to serve as the country’s only official notary, saying Wednesday the appointment is “illegal.”
The appointment also drew fire from more than 100 members of the Cambodian Bar Association, who demanded the ouster of Benson Samay from the Bar on Tuesday for accepting the controversial position.
“The subdecree appointing Benson Samay is illegal,” said Constitutional Council member Say Bory, who is also the former president of the Bar Association. “No law about the notary was ever adopted and decided by the National Assembly, and this only becomes official when the civil laws are enacted and passed by the National Assembly.”
Say Bory said he wrote a letter to the prime minister after the appointment was announced, stating the Assembly would need to approve the subdecree. Say Bory stressed, however, that he was not “attacking” either Hun Sen or Benson Samay.
Hun Sen appointed Benson Samay to serve as notary on Dec 4, 2001 but he wasn’t installed in the position until July 5. The notary is responsible for authenticating all official documents in Cambodia as well as “facilitating” land and property disputes, according to Hun Sen’s subdecree and Bar officials.
Benson Samay is also required to pay 600 million riel (approximately $150,000) to the government for the position, the subdecree states. The money is to be used as a “deposit” in case an individual brings a complaint against Benson Samay and a court decides he must pay compensation.
Also at issue is the authority the notary will have in mediating land and commercial disputes.
The notary acts as the mediator and drafts legal documents for land, property and business disputes, and an order “by an Official Notary is final judgment, without the need to seek a decision in court,” according to Benson Samay, who responded to questions by both fax and telephone on Wednesday.
Although Hun Sen’s subdecree does not detail the responsibilities of the notary, co-Minister of Interior Sar Kheng said in a prepared speech from July 5 that “Benson Samay will define the process of the notary system that conforms with the law of the Kingdom of Cambodia.”
According to one international legal expert, if the notary has authority to decide land disputes without consulting or respecting a judge’s decision, the notary could use the position for personal enrichment, especially considering the troubled state of land and property records.
Benson Samay defended his appointment, saying Hun Sen can “exercise the right to approve certain appointments or even introduce measures…if he feels that it is important to safeguard the interests of [Cambodia’s] people.”
Benson Samay, who applied directly to the premier for the appointment more than two years ago, is currently opening notary offices in Sihanoukville, Siem Reap, Battambang, Kompong Cham and Kandal provinces, and plans to have offices in all provinces, he said.
One Bar Association official, however, questioned whether the powers of the notary will be upheld.
“The subdecree did not mention clearly the powers of the notary, and [Benson Samay] said he would like to have powers equal to the judgment of a court,” Bun Honn, president of the Cambodian Bar Association, said on Wednesday.
“He cannot do what he says he wants to do until the law is complete.”
(Additional reporting by Richard Sine)