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 governments 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 countrys 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 countrys 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 kings successive appointment decrees, has not respected the principle of separation of powers and the independence of the judiciary as enshrined the countrys 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 countrys 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 review by itself.
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.
