The UN has asked the government to allow Khmer Rouge tribunal Co-Investigating Judge You Bunleng, who was recently sworn in as president of the Appeals Court, to continue performing his duties at the tribunal, a tribunal official said Wednesday.
The letter was delivered to the government Aug 16 amid a mostly behind-the-scenes battle that began a week earlier when You Bunleng was appointed to his new position by royal decree.
“The United Nations has officially expressed its concerns over the appointment of Judge You Bunleng to the Court of Appeal of Cambodia and invited the Cambodian authorities to consider keeping Judge You Bunleng in his current function as Co-Investigative Judge of the ECCC,” the UN’s tribunal spokesman Peter Foster said by e-mail. “The United Nations is now awaiting a response from the Cambodian authorities,” he added.
You Bunleng’s appointment has caused much confusion and sparked fears that the reshuffling will undermine the tribunal’s long-delayed progress and call into question its judicial independence.
You Bunleng, meanwhile, has vowed to ensure that his new posting will not disrupt the work of the court.
Helen Jarvis, public affairs chief for the Extraordinary Chambers in the Courts of Cambodia, declined detailed comment Wednesday, saying only: “Both sides are working together to find a satisfactory solution.”
Information Minister and government spokesman Khieu Kanharith emphasized that You Bunleng has not been removed from the ECCC, and said he saw no reason why the judge could not perform both jobs simultaneously.
“The function of the Appeals Court, it’s not daily work,” he said.
Khiev Sameth, director of Kandal Provincial Court and a member of the Supreme Council of the Magistracy, which oversees judicial appointments, also said that it might be possible for You Bunleng to fill both posts simultaneously.
“He can work to manage the administrative work at the Appeals Court and he can work at the Khmer Rouge tribunal. Maybe the Supreme Council can be OK with it,” he said.
Sok Sam Oeun, the executive director of the Cambodian Defenders Project, pointed out that many Cambodian judges at the ECCC have dual appointments. You Bunleng himself was, until his recent promotion, an Appeals Court judge. ECCC trial chamber Judge Nil Nonn is the chairman of Battambang Provincial Court. Pre-trial chamber Judge Ney Thol is president of the Cambodian Military Court.
Immediately after his promotion, however, You Bunleng said it was unlikely that he would be able to handle two such demanding jobs simultaneously. In a statement last week, he vowed to remain at the ECCC until a smooth transition could be made.
You Bunleng, who said he was too busy to speak with a reporter Wednesday, has yet to specify the timeframe of that transition.
Few begrudge You Bunleng his promotion. International staff at the court and civil society leaders alike have praised You Bunleng as a capable jurist whose services would be a boon for the Appeals Court. The UN seems most concerned with the principle of his potential departure.
In an August 13 letter to the ECCC Director of Administration Sean Visoth, the UN’s Michelle Lee, who serves as the Office of Administration’s deputy director, said the UN was concerned that You Bunleng’s appointment violated the legal underpinnings of the court, which mandate that judges be appointed for the duration of proceedings.
“Such provisions were included in the Agreement and the Law to ensure the security of tenure of ECCC judges, and to safeguard the integrity and fairness of the proceedings,” she wrote, adding that if You Bunleng were to step down, it “would not be conducive to the efficient and effective operation of the ECCC.”
In his August 14th response, Sean Visoth emphasized that You Bunleng’s appointment was “entirely unexpected” and the result of “exceptional circumstances” — namely the need to remove outgoing Appeals Court President Ly Vuochleng, who has been accused of accepting bribes in connection with the controversial Chai Hour II human trafficking case.
“[T]he Cambodian judiciary is currently undertaking significant reform, and we have been advised that You Bunleng was considered the most capable judge in the Appeals Court to take this office,” Sean Visoth wrote.
He added that the legal agreements that established the court also called for the appointment of reserve judges, who could be called into service under exceptional circumstances – an indication, he argued, that contingencies had been foreseen.
“I would like to reassure you that there is no intention for this appointment to impede or delay the proceedings of the ECCC in any way,” he wrote.
In his Aug 9 royal decree appointing You Bunleng as Appeals Court president, King Norodom Sihamoni indicated that he had consulted submissions from Prime Minister Hun Sen, Cabinet Minister Sok An and Supreme Court President Dith Munty, as well as Justice Minister Ang Vong Vathana.
But confusion over what exactly is standard procedure for judicial succession has stoked fears among civil society groups that You Bunleng’s appointment could open the door to political control of the judiciary.
In a statement earlier this week, the Cambodian Human Rights Action Committee, a coalition of 23 NGOs, wrote: “This precedent must not be established, as it would mean that other judges of the ECCC are subject to future displacement at the will of the authorities. An essential aspect of judicial independence is that judges be allowed to serve the interests of justice, and not the interests of the other powers.”
Khiev Sameth said You Bunleng’s appointment had been proposed by the Council for Legal and Judicial Reform, which is headed by Sok An and Dith Munty. Khiev Sameth said he did not know whether the council has the legal right to make such recommendations or not. The prime minister, he added, is free to make suggestions. The Supreme Council of the Magistracy, which is headed by the King, has the power to appoint and replace judges, Khiev Sameth said.
“Prime Minister [Hun Sen] can request, but it’s just a request. He’s not the one who decides,” he said.
Sok Sam Oeun said the process of judicial appointment in Cambodia, if not quite regular, has greatly improved. “We have no clear internal rules for appointing judges, but it’s better than before, when nominations were by political party quota,” he said, adding that as far as You Bunleng’s appointment goes: “We are concerned only how it affects the ECCC.”