What Is the Law? Courts Bow to Ministry Edict

If there is one thing Kompong Cham Chief Prosecutor Uk Touch says he is sure of, it is that 22-year-old Lim Pheng was breaking the law by having a dismantled AK-47 under a bed in his family home. Politics had nothing to do with the case, he insists. 

Yes, Lim Pheng was arrested within a day of his family complaining that the Sam Rainsy Party sign on their house had been shot up. True, he did not have a defense lawyer in his swiftly administered trial.

And yes, article 54 of the Untac criminal law that Lim Pheng was convicted under mentions only “carrying or transporting” a wea­pon without a permit as being illegal, making no mention of storing a weapon.

Still, Uk Touch is positive that having a gun in the home without permission violates article 54. “It is in accordance with the law.”

To prove his point, he pulls out a document from a folder on his desk and points to a passage. It defines anyone who “holds, hides [or] keeps” a weapon without permission as guilty.

But the document he cites is not the law. It is a directive from the Ministry of Justice—one that legal experts say in effect chan­ges the law arbitrarily.

Uk Touch’s confident citing of the Ministry of Justice, and not the actual law, is a sign to some that Cambodia’s judicial system is not independent, as required by the Constitution.

And human rights workers say that compliant courts are routinely used by the government to persecute anyone deemed a threat, under the guise of the 8-point security crackdown an­nounced by Second Prime Min­ister Hun Sen last August.

“This whole illegal weapons thing…was aimed at the opposition,” said one human rights worker. “Most people arrested and tried under this are from one political side.”

The case of Lim Pheng, 22, is a classic example, rights workers investigating the case say.

Police arrested Lim Pheng last week, one day after they came to investigate the shooting of the Sam Rainsy Party sign on the family home in O’Reang-Ou district. The authorities investigating the shooting asked the family if there were any guns in the house. Lim Pheng’s mother, Ung Muy Heang, says she asked her son to fetch the AK-47 that be­longs to an older adopted brother, who is a soldier.

In an interview Wednesday, Ung Muy Heang said she saw the police officers take the gun to the nearby CPP headquarters in their small village in Kom­pong Cham.

The next day, police re­turned and arrested Lim Pheng. Four days later, he was sentenced to a year in prison, convicted of carrying an illegal wea­pon.

Human rights workers investigating the case said that the court appears to have violated a host of laws in handling the case, including denying Lim Pheng his constitutional right to counsel. The judge in the case, Duch Chantha, said that the accused waived his right to a lawyer. Lim Pheng told rights workers Wednes­day that the court officials confused and tricked him and that he never said he did not want a lawyer.

Plus, rights workers say, there is no evidence Lim Pheng violated article 54 because he was not carrying the AK-47, which was stored, dismantled, under a bed.

Uk Touch, however, disagrees.

“The evidence is the gun in the house. This was enough for the police to arrest him and the court to sentence him immediately,” he said. “In the present situation, to maintain security, we have to be very strict before the elections.”

Uk Touch said the Septem­ber directive from the Ministry of Justice “advised” him in interpreting article 54.

“Pay attention to accuse and condemn seriously any person who holds, hides, keeps, transports or uses a weapon illegally,” the directive signed by Minister of Justice Chem Snguon read. “This kind of offense is evidence of guilt, therefore this accusation has to be sent to the court for trial immediately without being sent to a judge to be investigated.”

Legal experts say the issue is nothing less than the constitutional separation of powers—in short, whether the courts follow the law or the orders of the Ministry of Justice.

“Circulars and letters are not the appropriate way to make new law,” said Phyllis Cox, an attorney and legal adviser who has worked in Cambodian law for two years.

“For me, the issuance of a letter from the Minister of Justice giving his interpretation of the law—which is, in plain language, an expansion of the law and which he expects the judges to follow—is not consistent with the principles of independence of the judiciary that are in the Constitution and that the minister of justice himself has repeatedly said he adheres to,” she said.

Another legal observer familiar with the Lim Pheng case said the dependence on Chem Snguon’s directive to decide guilt is a bad sign.

“This shows in a more clear way the lack of independence of the courts,” the legal observer said. “What is the benefit of having a judiciary if they just do what the ministry tells them?”

Attempts to reach Chem Snguon for comment were un­successful Thursday.

However, Uk Touch insisted Wednesday that the judicial branch takes only advice, not  orders, from the government ministry.

“We have to carry out [the law] according to their advice. How­ever, we do have an independent point of view,” Uk Touch said.

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