Showing posts with label Supreme Council of Magistracy (SCM). Show all posts
Showing posts with label Supreme Council of Magistracy (SCM). Show all posts
Saturday, January 28, 2012
Friday, January 20, 2012
KRT judge decision with ministers
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| Judge Laurent Kasper-Ansermet was appointed as Reserve Co-Investigating Judge on 1 December 2010. (Photo: Courtesy of ECCC) |
Bridget Di Certo and Vong Sokheng with additional reporting by Cheang Sokha
The Phnom Penh Post
“The government maintains that the Supreme Council of Magistracy is an independent body, so why are they [the SCM] sending their decision to the Council of Ministers?” Human Rights Watch’s Phil Robertson said yesterday by telephone.
The Supreme Council of the Magistracy has finalised its decision on the appointment of UN-nominated reserve international judge at the Khmer Rouge tribunal, and has sent that decision to the Council of Ministers, the justice minister said yesterday.
“This issue [a decision on the appointment of the reserve co-investigating judge], I sent to the Council of Ministers yesterday, and we wait for the council now,” Minister of Justice Ang Vongvathana told the Post yesterday.
Speaking to a reporter as he was stepping into his car at Le Royal Hotel, Ang Vongvathana, who is a member of the SCM, would not comment further.
CHRAC expresses grave concern about the work of ECCC's co-investigating judges
Contributors: the Cambodian Human Rights Action Committee (CHRAC)
Phnom Penh, 19 January 2012
Phnom Penh, 19 January 2012
The on-going disagreement between the National and International Co-Investigating Judges at the Extraordinary Chambers in the Courts of Cambodia (ECCC) over the appointment of Judge Laurent Kasper-Ansermet has increasingly become a concern. Related to this matter, we believe the intervention by the Supreme Council of the Magistracy of the Kingdom of Cambodia (SCM) over the appointment of Judge Kasper-Ansermet ultimately violates the agreement between the Cambodian government and the United Nations which is stipulated both under the Cambodian and the ECCC’s law. The Cambodian Human Rights Action Committee (CHRAC)—a coalition of 23 NGO members—urges the Cambodian government to fulfill its obligation to fair and independent judicial proceedings at the ECCC by appointing a Co-Investigating Judge at the ECCC immediately. Moreover, the United Nations (UN) and donors to the ECCC must uphold the ECCC’s reputation to conduct fair and independent trial by conducting an independent inquiry with regard to the conduct by the Co-Investigating Judges. Without such an inquiry, the legacy of this tribunal will be seriously damaged.
According to the ECCC’s Law, Reserve Judges may be called upon in the event of an emergency and the immediate necessary replacement of the former Judge. Thus, a “Reserve Judge” is already appointed when made to fill the position of a reserve. In accordance with Articles 25 and 26 of the ECCC Law, the foreign Reserve Co-Investigating Judge was already appointed in an official manner. According to Article 27 (3) of the ECCC Law, he – by law – replaces the former Co-Investigating Judge and is obligated to fulfill his duties. Not only is another formal appointment unnecessary from our viewpoint, but the process has been continuously delayed for months. While some observers may argue that an appointment is necessary, it is merely a formality within the process. To deviate from such interpretation is to only allow for risking the independence of the ECCC’s proceedings.
Thursday, June 09, 2011
Test Seen for Judicial Reform as Council Meets
Sok Khemara, VOA Khmer
Washington, DC Wednesday, 08 June 2011
Washington, DC Wednesday, 08 June 2011
"... people’s faith in the courts remain shaken, especially since court reform has taken many years."
Lawyers and other justice officials are pushing for more transparency in the judiciary, as a major meeting of the Supreme Council of Magistracy is under way.
The Council is a government body constitutionally established to supervise judges and is expected to announce a four-year rotation of judges and prosecutors, including retirees, on Wednesday.
But some critics of the system say it has allowed many jurists to exceed the age of retirement, 60, or that jurists in well-placed positions have not been rotated out.
Sok Sam Oeun, director of the Cambodian Defenders Project, said some jurists are rotated out of a posting only to be put back at a later date. The transfers are designed so that judges or prosecutors do not amass too much power in one court.
Sunday, January 17, 2010
U.N. special rapporteur to make second visit to Cambodia
PHNOM PENH, Jan. 16 (Xinhua) -- A special rapporteur of the United Nations is planned to make his second visit to Cambodia next week, according to the Office of the U.N. High Commissioner for Human Rights (OHCHR) on Saturday.
In a statement released on Saturday, the OHCHR said Surya Prasad Subedi, the Special Rapporteur on the situation of human rights in Cambodia, will visit Cambodia on Jan. 18-30.
This is his second mission to Cambodia. "He intends to use the visit to examine the functioning of the National Assembly and judiciary, including the Supreme Council of Magistracy and the Constitutional Council," the statement said.
His objective is to conduct an analysis of how these institutions work, and the extent to which they provide citizens recourse and remedy for breaches of their rights.
The Special Rapporteur is an independent expert appointed by the United Nations Human Rights Council to follow and report on the human rights situation in Cambodia.
His task is to assess the human rights situation, report publicly about it, and work with the Government, civil society and others to foster international cooperation in this field.
In a statement released on Saturday, the OHCHR said Surya Prasad Subedi, the Special Rapporteur on the situation of human rights in Cambodia, will visit Cambodia on Jan. 18-30.
This is his second mission to Cambodia. "He intends to use the visit to examine the functioning of the National Assembly and judiciary, including the Supreme Council of Magistracy and the Constitutional Council," the statement said.
His objective is to conduct an analysis of how these institutions work, and the extent to which they provide citizens recourse and remedy for breaches of their rights.
The Special Rapporteur is an independent expert appointed by the United Nations Human Rights Council to follow and report on the human rights situation in Cambodia.
His task is to assess the human rights situation, report publicly about it, and work with the Government, civil society and others to foster international cooperation in this field.
Wednesday, October 07, 2009
Groups Caution Government on Judicial Reform
By Sok Khemara, VOA Khmer
Original report from Washington
06 October 2009
Original report from Washington
06 October 2009
Civic groups and opposition officials say the government should not establish a working group to reform the Supreme Council of Magistracy but should instead seek oversight from outside, as officials look to reform the judiciary.
A revamped judiciary is a high priority for many donors, but critics worry the constitution and the balance of powers are not being maintained.
Prime Minister Hun Sen formed the “Assistant Group” in September, to look into Council reform, but 10 of the group members are from the judiciary, and one is from the Ministry of Justice.
The group should “comply with the principal of our constitution, where exist three split branches, executive, legislative and the court,” said Ou Virak, head of the Cambodian Center for Human Rights. “If this legally goes through the National Assembly, I think that’s good and I welcome it.”
A subdecree, suggested by Council Minister Sok San and Dith Monty, chief of the Supreme Court and co-chairman of the Council for Legal and Judicial Reform, aims to aid the functioning of the Disciplinary Council of the Supreme Council, the only body with the authority to investigate disciplinary measures against judges and prosecutors.
The Assistant Group has the power to receive and monitor complaints against jurists and to report to the Disciplinary Council, and to use law enforcement in its mission.
Prior to the group’s formation, Hun Sen had ordered on Sept. 4 the establishment of a joint ministerial committee with 26 members from the police and judiciary, proposed by the Ministry of Interior, to oversee the work of the courts. But this move met with strong opposition from lawmakers who said it was unconstitutional.
In a Sept. 19 report to Hun Sen, Interior Minister Sar Kheng defended the committee’s work, saying it was not overseeing the court but was focusing on criminal cases and other cases in a database, especially human trafficking and sexual exploitation.
Court and police officials have said the courts recently freed suspects that should have been held, including Chea Rotha, a former senior police official accused with accomplices in an acid attack.
“Freeing some of these individuals caused the government unhappiness,” Ou Virak said.
Lawyers who spoke on condition of anonymity said the working group looked better than the joint ministerial working group, but that government institutions already exist to reform the judiciary.
Cheam Yiep, a Cambodian People’s Party lawmaker, told VOA Khmer the 11-member committee would not interfere with the government, but was meant to assist the judicial body.
However, Sam Rainsy Party lawmaker Yim Sovann said the working group was unlikely to be effective and would not earn the confidence of the people and investors.
“I believe that because the present court is under the political influence of the ruling party, what they will do is just for looking good,” he said. “But if you want real effectiveness, it’s not difficult at all, as the recommendations from the international community and some developed countries…have been given already.”
Suy Mong Leang, secretary-general for the Council for Legal and Judicial Reform, rejected such criticism, saying the government moves would not affect the independence of the court but was meant to cooperate with government institutions.
The division of powers between three branches of government does not mean the executive branch can’t cooperate with the court, he said, as long as the executive does not interfere with the court’s work trying cases. Punishment would be up to the court, not the executive, he said.
Suon Sareth, executive secretary of the Cambodian Human Rights Action Committee, which comprises 21 prominent rights groups, said that in his view, the government wants to reform the judiciary, but it should only provide technical, legal and financial assistance for an independent institution.
“If we talk about the government policy in general, the government promotes the judicial field in Cambodia,” he said. “The government wants the judicial sector in Cambodia to proceed smoothly and well. This is what we see generally, in a positive sense.”
But the formation of an Assistant Group for the Disciplinary Council, he said, “I think that’s a bit excessive, and I see that it will affect the procession of the judicial field in Cambodia…a little bit in the negative sense, even though I understand that the government has a good willingness to help promote the judicial sector.”
A secretariat for the Supreme Council of Magistracy, which had a similar function for the judicial working group for the Assistant Group, was dissolved by the government several years ago. The government said the body had not functioned well and was a drain on the national budget.
A revamped judiciary is a high priority for many donors, but critics worry the constitution and the balance of powers are not being maintained.
Prime Minister Hun Sen formed the “Assistant Group” in September, to look into Council reform, but 10 of the group members are from the judiciary, and one is from the Ministry of Justice.
The group should “comply with the principal of our constitution, where exist three split branches, executive, legislative and the court,” said Ou Virak, head of the Cambodian Center for Human Rights. “If this legally goes through the National Assembly, I think that’s good and I welcome it.”
A subdecree, suggested by Council Minister Sok San and Dith Monty, chief of the Supreme Court and co-chairman of the Council for Legal and Judicial Reform, aims to aid the functioning of the Disciplinary Council of the Supreme Council, the only body with the authority to investigate disciplinary measures against judges and prosecutors.
The Assistant Group has the power to receive and monitor complaints against jurists and to report to the Disciplinary Council, and to use law enforcement in its mission.
Prior to the group’s formation, Hun Sen had ordered on Sept. 4 the establishment of a joint ministerial committee with 26 members from the police and judiciary, proposed by the Ministry of Interior, to oversee the work of the courts. But this move met with strong opposition from lawmakers who said it was unconstitutional.
In a Sept. 19 report to Hun Sen, Interior Minister Sar Kheng defended the committee’s work, saying it was not overseeing the court but was focusing on criminal cases and other cases in a database, especially human trafficking and sexual exploitation.
Court and police officials have said the courts recently freed suspects that should have been held, including Chea Rotha, a former senior police official accused with accomplices in an acid attack.
“Freeing some of these individuals caused the government unhappiness,” Ou Virak said.
Lawyers who spoke on condition of anonymity said the working group looked better than the joint ministerial working group, but that government institutions already exist to reform the judiciary.
Cheam Yiep, a Cambodian People’s Party lawmaker, told VOA Khmer the 11-member committee would not interfere with the government, but was meant to assist the judicial body.
However, Sam Rainsy Party lawmaker Yim Sovann said the working group was unlikely to be effective and would not earn the confidence of the people and investors.
“I believe that because the present court is under the political influence of the ruling party, what they will do is just for looking good,” he said. “But if you want real effectiveness, it’s not difficult at all, as the recommendations from the international community and some developed countries…have been given already.”
Suy Mong Leang, secretary-general for the Council for Legal and Judicial Reform, rejected such criticism, saying the government moves would not affect the independence of the court but was meant to cooperate with government institutions.
The division of powers between three branches of government does not mean the executive branch can’t cooperate with the court, he said, as long as the executive does not interfere with the court’s work trying cases. Punishment would be up to the court, not the executive, he said.
Suon Sareth, executive secretary of the Cambodian Human Rights Action Committee, which comprises 21 prominent rights groups, said that in his view, the government wants to reform the judiciary, but it should only provide technical, legal and financial assistance for an independent institution.
“If we talk about the government policy in general, the government promotes the judicial field in Cambodia,” he said. “The government wants the judicial sector in Cambodia to proceed smoothly and well. This is what we see generally, in a positive sense.”
But the formation of an Assistant Group for the Disciplinary Council, he said, “I think that’s a bit excessive, and I see that it will affect the procession of the judicial field in Cambodia…a little bit in the negative sense, even though I understand that the government has a good willingness to help promote the judicial sector.”
A secretariat for the Supreme Council of Magistracy, which had a similar function for the judicial working group for the Assistant Group, was dissolved by the government several years ago. The government said the body had not functioned well and was a drain on the national budget.
Friday, September 04, 2009
No help for Hang Chakra from council [-Can one be expected from the Supreme "Con"-cil of Magistracy?]
Hang ChakraFriday, 04 September 2009
Vong Sokheng
The Phnom Penh Post
SENIOR officials at the Ministry of Justice said that the Supreme Council of the Magistracy has no power to intervene in the case of jailed newspaper publisher Hang Chakra, despite a letter sent by King Norodom Sihamoni to Minister of Justice Ang Vong Vathana asking that the council reconsider the publisher's conviction.
Hang Chakra, the publisher of the Khmer Machas Srok newspaper, was convicted in June of defamation and publishing false information in connection with a series of articles published in April and May accusing officials working for Deputy Prime Minister Sok An of corruption. He was sentenced to one year in prison and fined 9 million riels (US$2,187). The Court of Appeal rejected his case on August 11.
In a letter dated August 24, a group of local media and civil society groups wrote to the King, urging him to request that the Supreme Council of the Magistracy reconsider Hang Chakra's case. The King then forwarded the request to Ang Vong Vathana.
"We considered the request of the King, but based on our analysis, we do not believe that the Supreme Council of the Magistracy has the power or obligation to examine the conviction of the court," a Ministry of Justice official who spoke on condition of anonymity said Tuesday. "I think that the publisher should use his right to appeal to the Supreme Court to reconsider the conviction."
Touch Naro, the president of the Cambodia Journalist Watch Association and one of the signatories of the letter, argued that according to the 1995 Press Law, Hang Chakra's conviction should never have occurred.
"We need an explanation about the legal process that put Chakra in jail, because he did not commit any crimes," he said.
Choung Chou Ngy, Hang Chakra's lawyer, told the Post that he visited his client in jail on Wednesday, finding him in poor health and unsure of whether he will appeal his conviction to the Supreme Court.
Ang Vong Vathana could not be reached for comment on Thursday.
Hang Chakra, the publisher of the Khmer Machas Srok newspaper, was convicted in June of defamation and publishing false information in connection with a series of articles published in April and May accusing officials working for Deputy Prime Minister Sok An of corruption. He was sentenced to one year in prison and fined 9 million riels (US$2,187). The Court of Appeal rejected his case on August 11.
In a letter dated August 24, a group of local media and civil society groups wrote to the King, urging him to request that the Supreme Council of the Magistracy reconsider Hang Chakra's case. The King then forwarded the request to Ang Vong Vathana.
"We considered the request of the King, but based on our analysis, we do not believe that the Supreme Council of the Magistracy has the power or obligation to examine the conviction of the court," a Ministry of Justice official who spoke on condition of anonymity said Tuesday. "I think that the publisher should use his right to appeal to the Supreme Court to reconsider the conviction."
Touch Naro, the president of the Cambodia Journalist Watch Association and one of the signatories of the letter, argued that according to the 1995 Press Law, Hang Chakra's conviction should never have occurred.
"We need an explanation about the legal process that put Chakra in jail, because he did not commit any crimes," he said.
Choung Chou Ngy, Hang Chakra's lawyer, told the Post that he visited his client in jail on Wednesday, finding him in poor health and unsure of whether he will appeal his conviction to the Supreme Court.
Ang Vong Vathana could not be reached for comment on Thursday.
Monday, August 17, 2009
Appointment Of Judges And Prosecutors Is Unconstitutional: AHRC
Monday, 17 August 2009
Press Release: Asian Human Rights Commission
Press Release: Asian Human Rights Commission
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.
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.
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