Analysis: Judge who will decide the fate of the CNRP is a trusted member of the CPPPosted by: Cambodian | Posted on: November 14, 2017
Op-Ed: Phnom Penh Post
Analysis: Judge who will decide the fate of the CNRP is a trusted member of the CPP
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 hearing, 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 high-profile 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?”