Court Landbasted For Droping Acid Attack Case

The victim of a 2008 acid attack victim jointed local human rights groups on Wednesday in decrying a court decision to drop charges against a former military police woman and her subordinates.Ya Soknim, 39, told reporters at Licadho’s office Wednesday she suffered for injustice, and worried for her safety and revenge after they were freed from charges.“For people without money, it is not necessary to complain,” she said. The court “sees the poor and vulnerable people and lets them live in misfortune.”Ya Soknim was assaulted in May 2008, after her niece, In Soklyda, a former beauty queen, had an allegedly forced love affair with Chea Ratha, a former military police deputy chief of staff.Chea Ratha was not available for comment.In Soklyda told reporters Wednesday she would have “remorse my whole life,” seeing the scars of her aunt’s acid attack. She claims Chea Ratha “told me she loved me and forced me to live with her for more than two years…after I refused to love her.”“When I open my eyes, I see my aunt’s scar from the acid attack,” she said.“How can I live, if the court has no trial, dropped the charge and there’s no justice because of no evidence?” she said. “In fact we have evidence. My family cannot live in this country if the offenders go free.”Naly Pilorge, director of the rights group Licadho, called the court’s decision “yet another blatant display of Cambodia’s rampant impunity and culture of brutal violence.”“What is so shocking in the case is the judges’ apparent total disregard of the evidence against Chea Ratha and her alleged accomplices,” she said. “Court rulings like this only ensure that acid attacks will continue, because the perpetrators are not brought to justice.”Ou Virak, executive director of the Cambodian Center for Human Rights, said the court had shown a lack of independence in prosecuting high-ranking officials.“As long as the courts operate at the direction of the Cambodian government, rule of law will remain an empty slogan at donor conferences,” he said.

Source: VOA

Cambodian man spends four years awaiting trial for petty theft

Phnom Penh - A 31-year-old man has spent nearly four years in a Cambodia prison awaiting trial on charges of stealing a mobile phone worth 15 dollars, national media reported. Roeun Moeun was arrested in October 2005 along with three other men on suspicion of committing the crime, the Cambodia Daily newspaper reported on Tuesday. The other men have since been convicted or released by the provincial court in Kandal outside Phnom Penh.
His defence attorney said when the judge ruled on the original case last year, he omitted Roeun Moeun's name from the ruling. For that reason he was not released.
"It is a serious violation of the rights of the accused," the lawyer said. "Why couldn't he receive justice from the court?"
The case appears to have been forgotten in the country's chaotic and inefficient court system. Court officials responsible for investigating the case over the years have been transferred to other provinces, with the result that Roeun Moeun's case was ignored.
Judge Leang Sour, who issued the original ruling last year, told the newspaper that he had been unable to release Roeun Moeun since he did not appear to be facing any charges.
"I returned his case to the prosecutor for further investigation and I never heard about it again," he said.
In recent months several cases have emerged where suspects have been held for years before facing trial. In August a suspected drug smuggler was sentenced to 38 months in prison after she had spent all but five days of that time awaiting trial.
In response the government's human rights committee is reviewing the number of detainees in pre-trial detention in the nation's 25 prisons.
Under Cambodian law, pre-trial detention is limited to four months in the case of a misdemeanour if the potential sentence carries a term of more than a year.

Source: The Earth Times

Cambodia: Appointment Of Judges

Cambodia: Appointment Of Judges And Prosecutors Is Unconstitutional

Lately there has been a hectic time within the Cambodian judiciary with the actual and planned retirement and appointments of many judges and prosecutors. The government has retired and replaced half of the members, two ex-officio and two appointed, of the Supreme Council of the Magistracy (SCM), the supreme judicial body responsible for the nomination and discipline of judges and prosecutors. A further 27 are also to be retired. In the meantime, some 32 judges and prosecutors, including four who are the de facto age of retirement of 60, have been appointed to new positions.

In a statement dated 7 August 2009 (see CAMBODIA: Law on the statute of judges, not their retirement, is the right end from which to tackle judicial reform), the Asian Human Rights Commission (AHRC) has already pointed out the unconstitutionality of the government’s infringement upon the jurisdiction and independence of the SCM when it had bypassed it and retired and replaced those four SCM members. According to the country’s Constitution, the nomination, including appointment, retirement and transfer, as well as the discipline of judges and prosecutors are the responsibility of the SCM, and not that of the government. The SCM is the supreme body of the judiciary which is chaired by the country’s king and which also has the responsibility of ensuring judicial independence.
The AHRC has also urged the Cambodian government to enact two long-overdue laws which the country has specifically stipulated (Art.135 of the Constitution) and which would provide the legal background and framework for the judiciary as required under Art.14 of the International Covenant on Civil and Political Rights on the right to a fair trial by an independent, competent and impartial tribunal established by law. With the law on the statute of judges and prosecutors, the age of retirement would be officially fixed and known, and actual retirement could be set without arousing any suspicion of favouritism for those who wish to remain in active service.
The AHRC has further noticed that the appointment of judges and prosecutors, as shown in the king’s successive appointment decrees, has not respected the principle of separation of powers and the independence of the judiciary as enshrined the country’s Constitutions (Arts 51 and 128). In these appointments, the Minister of Justice, a cabinet member and also a member of the SCM, has made nomination proposals, received the approval of the SCM and submitted them to the king for signing. For some appointments, the SCM has been bypassed altogether and the proposals directly submitted to the king for signature.
This practice contravenes Art 134 of the country’s Constitution which says, among other things, that “The Supreme Council of the Magistracy shall make proposals to the King on the appointment of judges and prosecutors to all courts.” It should be declared unconstitutional when, according Art. 150 of the same Constitution, “Laws and decisions by the State institutions shall have to be in strict conformity with the Constitution.”
The Cambodian government and its ministry of justice in particular seem to have exploited the absence of the constitutional review or any other forms of judicial review of their decisions and have tried to rule by decree, at least in appointment and retirement of judges and prosecutors. The constitutional review of laws seems clear cut when a specific number of public figures and even ordinary citizens may request for it. However, there is almost a complete silence over the constitutional review of decisions of state institutions, the government and its ministries included. Only a litigant who feels his or her rights are affected by such a decision could raise the issue of its unconstitutionality with the Constitutional Council through the Supreme Court. Unlike in the case of promulgated laws, neither any public figure mentioned above nor any concerned citizen may request for the constitutional review of decisions of state institutions. Nor is the Constitutional Council habilitated to do this constitutional
The AHRC strongly urges the Minister of Justice to respect the principle of separation of powers and the independence of the judiciary and the SCM, refrain from infringing upon the jurisdiction of the SCM, and let this supreme judicial body fully exercise its full constitutional authority over the nomination and discipline of judges and prosecutors. The Minister of Justice should relinquish its control of the SCM Secretariat and transfer it back where it belongs, that is, to the SCM. It should instead secure for the SCM adequate resources to enable it to fulfill its constitutional duties in the nomination and discipline of judges and prosecutors, and in the independence of the judiciary.
AHRC further urges that all decisions of state institutions, including those of the government and the Ministry of Justice regarding the nomination and discipline of judges and prosecutors as well as the independence of the judiciary, should be in strict conformity with the Constitution as specifically stipulated under its Art 150. The Law on the Organization and Functioning of the Constitutional Council should therefore be amended in order to subject such decisions to the same constitutional review as all laws.
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Cambodia: Law On The Statute Of Judges

Sunday, 9 August 2009, 11:47 pmPress Release: Asian Human Rights Commission
Cambodia: Law On The Statute Of Judges, Not Their Retirement, Is The Right End From Which To Tackle Judicial Reform
Last June the Cambodian government ignored the jurisdiction of the nomination and discipline of judges and prosecutors of the Supreme Council of the Magistracy (SCM) when it bypassed the court and got the King, who is chairman of this supreme judicial council, to retire and replace half of the eight SCM members. The retired members were Ouk Vithun, Prosecutor General of the Supreme Court, 62, an ex-officio member; Henrot Raken, 68, Prosecutor General of the Appeal Court, another ex-officio member; Khieu Sameth, 62, President of Kandal Provincial Court, an appointed member; and Sin Dim, 66, President of Preah Sihanouk Provincial Court, another appointed member.

The government’s infringement upon the SMC’s jurisdiction is unconstitutional as it violated the independence of the judiciary of which the SCM is an integral part. Apparently the government was not happy with the lack of the SMC’s swift disciplinary action against a provincial prosecutor whose alleged faults had been widely reported in the press.
Perhaps more importantly, the government was not happy with the SCM when the latter had not retired the judges and prosecutors it had proposed. The SCM had its own reasons for not heeding the government’s proposal. It wanted to uphold its independence and exercise its authority over the nomination and discipline of judges and prosecutors.
Even more importantly, there was no law on the statute of judges and prosecutors which should set the retirement age for them. The government has not yet enacted this long overdue law and also the law on the organization of the judiciary when the country‘s Constitution has specifically stipulated the need to enact both laws since 1993. Like the law on the statute of civil servants and the law on the statute of members of the armed forces, which have not been specifically stipulated in the Constitution and which had both been enacted in the mid-1990s, this law on the statute of judges and prosecutors would determine, among other things, the age of retirement for judges and prosecutors. Without this law, the SCM would have no legal basis to retire judges and prosecutors.
The SCM did not comply with a government decree (not a law) which has been echoed by subsequent government circular letters and which fixes the retirement age of 60 for judges and prosecutors when this decree was based on no law on the statute of judges and prosecutors. This inaction has led the government to accuse the SCM of defending certain members of the judiciary who have wished to remain in active service.
Now with a new composition more amenable to the government’s wishes, the SCM sets out to retire some 27 elder judges and prosecutors, retirement which some have seen as part of the long overdue judicial reform.
However, the retirement of the four members of the SCM in June and the planned retirement of a big batch of judges and prosecutors are but palliatives to defuse mounting pressure for judicial reform. These measures have tackled this reform at the wrong end and have in no way come to address the real issue of the legal foundation of Cambodia’s entire judiciary. They have further violated the constitutional principle of the separation of powers, judicial independence and consolidated the executive control of the judiciary.
If the government is not happy with the functioning of the SCM, the Prime Minister should raise the issue with the King who is its chairman when he has an audience with him twice a month (Art.20 of the Constitution). The government should not delay any further the enactment of the law on the statute of judges and prosecutors and the law on the organization of the judiciary so that judges and prosecutors, who belong to the same body of magistrates, would have proper legal status, which they don’t have at the moment, and all courts of law would be duly established by law, which they are not at the moment. Everyone would thus be entitled to be tried by an independent, competent and impartial tribunal established by law, a right which is specifically stipulated under Article 14 of the International Covenant on Civil and Political Rights to which Cambodia is a party.
The government cannot apply the law on the nomination of judges and on the functioning of courts of law enacted in the communist days, prior to the promulgation of the current Constitution, and any decree enacted thereof when they are not among the “Laws and standard documents in Cambodia that safeguard State properties, rights, freedom and legal private properties and in conformity with the national interests, (which) shall continue to be effective until altered or abrogated by new texts” under the transitional article 158 of the current Constitution.
The absence of the law on the statute of judges and prosecutors poses a big problem of legitimacy for the composition of the SCM itself whose three judge members should be elected by their peers, an election which has been held up for 16 years, which is too long. The lack of the legitimacy of the composition of the SCM in turn questions the legitimacy of the composition of the country’s Constitutional Council which is a sort of a constitutional court, whose three members are appointed by the SCM.
The Asian Human Rights Commission (AHRC) urges the Cambodian government to prioritise the building of the legal foundation and framework of the country’s entire judiciary, its organization and the status of judges and prosecutors by enacting the law on their statute, including their retirement age, in tandem with the law on the organisation of the judiciary, two of the important laws that are specifically stipulated in the country’s constitution. This is the right end from which it should tackle judicial reform in Cambodia. About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
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