The Kingdom’s ar­biter

Judge who will de­cide the fate of the CNRP is a trusted mem­ber of the CPP

The Phnom Penh Post - - FRONT PAGE - Mech Dara and Daphne Chen Anal­y­sis

THE de­ci­sion to pre­serve or to dis­solve the coun­try’s main op­po­si­tion party will fall on Thurs­day to a judge listed as a mem­ber of the rul­ing CPP’s most exclusive com­mit­tee, and whose close ties to Prime Min­is­ter Hun Sen stretch back more than three decades.

Supreme Court Pres­i­dent Dith Munty, who turns 76 today, is a mem­ber of the Cam­bo­dian Peo­ple’s Party’s pow­er­ful per­ma­nent com­mit­tee and was part of a trusted cir­cle of ad­vis­ers to the pre­mier as the coun­try re­built it­self af­ter the Kh­mer Rouge was ousted.

On Thurs­day, the court will con­sider a Min­istry of In­te­rior com­plaint seek­ing the com­plete dis­so­lu­tion of the Cam­bo­dia Na­tional Res­cue Party – the coun­try’s largest op­po­si­tion party and the only le­git­i­mate elec­toral threat to the CPP. While the gov­ern­ment’s ac­cu­sa­tions that the CNRP – and its leader, Kem Sokha – col­luded with the US to fo­ment “revo­lu­tion” re­main un­proved, nu­mer­ous rul­ing party of­fi­cials, Hun Sen in­cluded, have in­sisted the party’s guilt is a fore­gone con­clu­sion.

As pre­sid­ing judge of the hear- ing, Munty will be di­rectly in­volved in mak­ing the fi­nal call.

But in the 19 years since the Supreme Court has been un­der Munty’s lead­er­ship, an­a­lysts say, it has failed to estab­lish its in­de­pen­dence from Hun Sen and his CPP – con­tro­ver­sially

de­cid­ing, among other things, to up­hold a po­lit­i­cally tinged in­cite­ment con­vic­tion against for­mer op­po­si­tion leader Sam Rainsy in 2011, as well as a defama­tion con­vic­tion against se­nior op­po­si­tion law­maker Mu Sochua in 2010.

“You could count on one hand the num­ber of times a high­pro­file ju­di­cial de­ci­sion has gone against the wishes of the coun­try’s po­lit­i­cal lead­ers, which says a lot,” said Chak Sopheap, the ex­ec­u­tive di­rec­tor of the Cam­bo­dian Cen­ter for Hu­man Rights.

What’s more, she noted, it’s dif­fi­cult to even criticise the court pub­licly thanks to le­gal pro­vi­sions that make it a crim­i­nal of­fence to criticise a ju­di­cial de­ci­sion with the aim of en­dan­ger­ing “pub­lic order” or “an in­sti­tu­tion of the Kingdom of Cam­bo­dia”.

Sot­heara Yoeurng, le­gal ad­viser at elec­tion watch­dog Com­frel, said the Supreme Court’s rep­u­ta­tion among the pub­lic and in­ter­na­tional com­mu­nity is par­tic­u­larly fraught when it comes to po­lit­i­cal cases.

“You can claim your­self to be neu­tral, but if the pub­lic knows you are a mem­ber of the rul­ing party, the pub­lic will not trust you,” Yoeurng said.

A for­mer cadre of the Kam­puchean United Front for Na­tional Sal­va­tion, which helped over­throw Pol Pot with the help of the Viet­namese in 1979, Munty rose to promi­nence as deputy min­is­ter of for­eign af­fairs un­der Hun Sen in the early 1980s, ac­cord­ing to Se­bas­tian Stran­gio, au­thor of Hun Sen’s Cam­bo­dia.

In 1991, Munty was one of five Cam­bo­dian lead­ers who trav­elled to France in the pre­mier’s en­tourage for the sign­ing of the Paris Peace Ac­cords with ri­val fac­tion lead­ers Prince Norodom Si­hanouk and Khieu Sam­phan.

He was ap­pointed pres­i­dent of the Supreme Court in 1998 and has held the po­si­tion since, in spite of laws that re­quire judges to re­tire at age 60.

De­spite keep­ing a low pro­file com­pared to other of­fi­cials close to Hun Sen, Munty is listed as the num­ber 15 of­fi­cial on the party’s elite per­ma­nent com­mit­tee and a mem­ber of the cen­tral and stand­ing com­mit­tees on the CPP’s web­site.

His dual role as a party leader and an os­ten­si­bly in­de­pen­dent judge “clearly cre­ates a con­flict of in­ter­est” for him­self and the Supreme Court as a whole, said Kings­ley Ab­bott, South­east Asia le­gal ad­viser with the In­ter­na­tional Com­mis­sion of Ju­rists.

“At an ab­so­lute min­i­mum, the pres­i­dent should re­cuse him­self from any role in re­la­tion to the case, as should any other judge if they have a sim­i­lar po­si­tion within the CPP,” Ab­bott said.

In­deed, Munty is not alone on the Supreme Court in his ties to the rul­ing party.

Supreme Court Vice Pres­i­dent Khim Pon is also listed as a mem­ber of the CPP’s cen­tral com­mit­tee and was a for­mer deputy in­te­rior min­is­ter in the 1990s, while fel­low Vice Pres­i­dent Chiv Keng is a for­mer ad­viser to late Deputy Prime Min­is­ter Sok An – him­self a mem­ber of the CPP’s per­ma­nent com­mit­tee, and one of Hun Sen’s clos­est al­lies.

The court’s chief pros­e­cu­tor, Chea Leang, is a niece of An and a na­tional co-pros­e­cu­tor at the Ex­tra­or­di­nary Cham­bers in the Courts of Cam­bo­dia, where she has been ac­cused by crit­ics of toe­ing the party line by re­fus­ing to sign off on charges in gov­ern­ment-op­posed cases.

A for­mer Supreme Court pros­e­cu­tor, who spoke on the con­di­tion of anonymity for fear of ret­ri­bu­tion, said yes­ter­day that the op­po­si­tion party “never, ever wins cases in court – in­clud­ing the Ph­nom Penh Mu­nic­i­pal Court, the Ap­peal Court and the Supreme Court – be­cause the or­ders come from top politi­cians”.

“The ju­nior lead­ers can­not op­pose them . . . The CNRP loses per­ma­nently,” he said.

“How can you make your own side lose?” he asked, re­fer­ring to judges’ links to the CPP. “This im­pacts the judges’ de­ci­sions 100 per­cent.”

Supreme Court spokesman Nou Mony Choth de­clined to com­ment on al­le­ga­tions, but Min­istry of Jus­tice spokesman Chin Malin dis­missed the crit­i­cism as “base­less analysing”.

“Don’t just look at their [party] mem­ber­ship,” Malin said.“Look at their strat­egy, the pro­ce­dure, the de­ci­sions and whether they are based on ev­i­dence and ar­tic­u­late ar­gu­ments or not . . . The an­a­lyst should not an­a­lyse be­fore the sit­u­a­tion [is over], they should an­a­lyse af­ter the in­ci­dent is clear.”

Yet in­ter­na­tional ex­perts said even with­out the per­sonal ties be­tween the courts and the CPP, Cam­bo­dia’s ju­di­ciary is miss­ing ba­sic safe­guards that would pro­tect the in­de­pen­dence of judges.

Un­der widely crit­i­cised pu­ta­tive re­forms passed in 2014, Min­is­ter of Jus­tice Ang Vong Vathana – a Hun Sen ap­pointee and CPP cen­tral com­mit­tee mem­ber – as­sumed con­trol of the bud­gets of the courts and is the pub­lic rep­re­sen­ta­tive of the Supreme Coun­cil of Mag­is­tracy, which pro­motes and dis­ci­plines judges and prose­cu­tors.

If the ex­ec­u­tive branch can con­trol the ju­di­ciary’s bud­get and ap­point­ments, courts will find it hard to avoid be­ing politi­cised, said Bjorn Dres­sel, an ex­pert in South­east Asian ju­di­cial pol­i­tics at Aus­tralian Na­tional Univer­sity.

“In Cam­bo­dia, the court be­comes a po­lit­i­cal weapon against op­po­si­tion and crit­ics,” Dres­sel said. “You do not rely on the use of force in a true sense like the army or the po­lice. What you’re us­ing is ac­tu­ally le­git­i­mate po­lit­i­cal in­sti­tu­tions like the courts to act on your be­half. It lends you al­most an aura of le­git­i­macy.”

What’s more, le­gal an­a­lysts, ob­servers and op­po­si­tion party of­fi­cials say that ob­tuse laws and con­fu­sion over trial pro­ce­dures have fur­ther put into ques­tion the Supreme Court’s in­de­pen­dence.

The com­plaint filed by the Min­istry of In­te­rior al­leges the CNRP vi­o­lated the Law on Po­lit­i­cal Par­ties, which pro­hibits con­spir­ing with crim­i­nals or un­der­min­ing “na­tional se­cu­rity”, which is not clearly de­fined.

Sot­heara ques­tioned how the dis­so­lu­tion case could pro­ceed with­out first set­tling whether jailed CNRP leader Kem Sokha is guilty in his own, sep­a­rate case for al­leged “trea­son”. He is set to be ques­tioned at the Tbong Kh­mum prison, where he has been jailed for more than two months, on Novem­ber 24.

“They have to pro­ceed with the Kem Sokha case first be­cause Kem Sokha is in charge of the CNRP,” Yoeurng said. “If the court can­not find him guilty of a crime, how can you dis­solve the party?”

The for­mer Supreme Court pros­e­cu­tor also pointed out that the pe­nal code stip­u­lates that peo­ple and or­gan­i­sa­tions can­not be charged for some­thing that was not il­le­gal at the time.

The amend­ments to the Law on Po­lit­i­cal Par­ties un­der which the CNRP is be­ing charged were rammed through the Na­tional As­sem­bly in Fe­bru­ary and July of this year – four years af­ter Sokha ap­peared in a video telling sup­port­ers he had re­ceived ad­vice from the US, one of the gov­ern­ment’s key pieces of ev­i­dence.

The op­po­si­tion party will not bother send­ing lawyers to Thurs­day’s hear­ing, ac­cord­ing to op­po­si­tion law­maker Son Ch­hay, who said it was point­less for the CNRP to de­fend it­self, de­spite gov­ern­ment claims that the CNRP’s lack of a de­fence is a sign of their guilt.

“The prime min­is­ter al­ready put a bet on it,” Ch­hay said, re­fer­ring to pub­lic dec­la­ra­tions made by Hun Sen guar­an­tee­ing the party would be dis­solved.

“Since when is it that if we have a lawyer, the court will give the ver­dict dif­fer­ently? What can we ex­pect now?”

HONG MENEA

Traf­fic passes in front of the Cam­bo­dian Supreme Court last month in Ph­nom Penh.

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