Week 564 – 2008-06-15: The Independence of the Judiciary as a Pillar to Uphold the Constitution

The Mirror, Vol. 12, No. 564

Greetings to our readers – this time I am writing from a hospital in Bangkok. I hope by next weekend I maybe back in Phnom Penh again.

So I can write only briefly this time.

During the past week, the arrest of the editor-in-chief of the newspaper Moneaksekar Khmer, Mr. Dam Sith, who is also a candidate of the Sam Rainsy Party in the upcoming parliamentary elections, is without doubt the most unfortunate and difficult to understand news item.

I can make here reference only to things which have been in the press, and they pose many questions about the working of law enforcement and the legal system, and their independence from general political opinion. Just to list up a few points:

• Mr. Dam Sith was arrested because his paper reported about certain statements by the leader of the opposition party. What the leader of the opposition said had led to a court case against him, initiated by the Minister of Foreign Affairs. But Moneaksekar Khmer just reported this – it did not make a statement to the same effect. So the reporting a fact led to his arrest.
• The arrest was made in response to a warrant issued on a Sunday, when the court is normally not in session to issue warrants.
• It is reported that the warrant on which Mr. Dam Sith was detained did not contain his name.
• Early in the week, it was reported that even the Minister of Information delivered a letter to the court to request the release on bail for Mr. Dam Sith.
• The arrest triggered international surprise and protests: such organizations as Reporters without Borders, Human Rights Watch, and Amnesty International condemned the arrest.
• Embassies of different countries expressed concern about the political situation before the election and may abstain from sending election observers.
• The US ambassador expressed the hope that Mr. Dam Sith will be released soon.
• The Club of Cambodian Journalists not only expressed their strong disapproval with this arrest, they were also able to express their solidarity by a visit in prison.
• The court rejected to grant a release on bail.

I remember here the Articles 128 and 129 of the Constitution, which say:

“The Judicial power shall be an independent power. The Judiciary shall guarantee and uphold impartiality and protect the rights and freedoms of the citizens.”

And:

“Trials shall be conducted in the name of Khmer citizens in accordance with the legal procedures and laws in force.”

How can trials be conducted in the name of the Khmer citizens, if so many details are not made publicly known?

As for the judicial power as an independent power, I had the opportunity to see, on Thai television, when the Thai King solemnly addressed a group of newly appointed judges of the Constitutional Court, and then another group of judges of the Administrative Court. There are at present some cases where part of the public is accusing some courts to have acted not independently, but in response to pressure by the government or by political forces, violating the principle of the independence of the judiciary and the separation of powers. It is on this background that the Thai King is quoted to have stressed: “The Constitution is a pillar needed in running a country. With this pillar, and with people determined to follow these principles, the country will function well.”

The firm adherence to and application of this principle of maintaining the constitution, whatever powers may have their own momentum, is surely equally important in any country based on liberal democracy, to uphold the state of law, as the Cambodian Constitution requires.