The UN questioned the constitutionality of Khmer Rouge tribunal Co-Investigating Judge You Bunleng’s appointment as Appeals Court president in a Thursday statement, saying it was one more sign of the nation’s politically compromised judiciary.
“[R]ecent 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 in Cambodia,” Yash Ghai, the special representative of the secretary-general for human rights in Cambodia, and Leandro Despouy, the special rapporteur on the independence of judges and lawyers, said in a joint statement.
The statement comes on the heels of an Aug 16 request from the UN to the government asking that You Bunleng be allowed to continue to perform his duties at the Extraordinary Chambers in the Courts of Cambodia.
Under Cambodian law, all judicial appointments, transfers and disciplinary actions must be made by the Supreme Council of the Magistracy, a nine-member body set up in 1994 and presided over by the King.
But Ghai and Despouy wrote that prior to the issuance of the Aug 9 royal decree ordering You Bunleng to replace Ly Vuochleng as Appeals Court president, “no meeting of the Council was convened.”
That royal decree states that the reshuffling was requested by the Supreme Council for State Reform, which is chaired by Prime Minister Hun Sen, following proposals from Justice Minister Ang Vong Vathana and from the Council for Legal and Judicial Reform, which is co-chaired by Deputy Prime Minister Sok An and Supreme Court President Dith Munty. “In other words, the replacement of the Appeal Court President was done at the request of the executive branch of government,” they wrote.
The fact that some members of the Supreme Council of the Magistracy also hold government and political posts has troubled critics, who say it calls into question the independence of the appointment process.
Ghai and Despouy said these latest judicial reshufflings further enfeeble the Council, making it essentially a rubber stamp.
“Unless the Supreme Council of the Magistracy is, and is seen to be, free of government control, the Courts of Cambodia cannot be recognized as independent,” they wrote.
Justice Minister Ang Vong Vathana, who sits on the Council, could not be reached for comment.
Information Minister and government spokesman Khieu Kanharith dismissed the UN statement as “useless” and “misleading.” “The government does not have the right to reshuffle judges,” he said.
Constitutional Council member Son Soubert said that if You Bunleng’s ascension had been mandated by anyone other than the Supreme Council of the Magistracy as a whole, it would indeed be unconstitutional.
“If the appointment was made by other authorities than the Supreme Council of the Magistracy, then that would not be constitutional,” he said, adding: “The Minister of Justice is only one member of the Supreme Council of the Magistracy. If the decision comes from him only, that’s not valid.”
Three of the nine seats on the Supreme Council of the Magistracy are supposed to be filled by individuals elected by the judiciary, and Ghai and Despouy took the Council to task for filling those seats by appointment. “No elections have ever been held for these three elected positions,” they wrote.
Kandal Provincial Court Director and Supreme Council member Khieu Sameth, who was appointed to one of those seats by royal decree on Aug 9, said there was nothing wrong with his own appointment. “At least two members of the Supreme Council of the Magistracy requested it,” he said, adding that he has yet to see evidence of executive control of the Council.
Cambodian Defenders Project Executive Director Sok Sam Oeun said the legal framework for judicial succession was still incomplete, a gap that could easily be manipulated for political gain.
He urged the government to shore up the independence of the Council by filling more seats by election and making them full time positions. “We want all judges to be non-partisan,” he said.
Tribunal spokesman Reach Sambath said the UN’s broad critiques of the Cambodian judiciary were beyond his purview.
In the meantime, he added, the tribunal is continuing its work apace. Co-Investigating Judges You Bunleng and Marcel Lemonde both interviewed Kaing Guek Ieu, also known as Duch, the former chief of S-21 prison now facing charges of crimes against humanity, on Thursday, Reach Sambath said.
“It means that the court is functioning normally,” he said.