The following items are added as follow-up to the previous posting here: Council of Ministers Spokesperson Censured UN Special Expert on 26 January 2012.

On Friday, 27 January 2012, The Cambodia Daily reported:

In a letter addressed to Mr. Scheffer dated yesterday, Mr. Siphan said his comments on the meeting were misinterpreted. According to Mr. Siphan, he had only said that Mr. Scheffer “understood” Mr. Sok An’s position “that the Royal Government of Cambodia cannot overturn the decision of the Supreme Council of the Magistracy.”

“I never suggested that agreement had been reached at the meeting,” he told Mr. Scheffer in the letter. “I hope this clarification will help to reassure you.”

Only on 28 January 2012, the Press and Quick Reaction Unit of the Office of the Council of Ministers published the following report dated 13 January 2012:

SUMMARY REPORT OF THE MEETING OF
THE SUPREME COUNCIL OF THE MAGISTRACY
ON THE PROPOSED APPOINTMENT OF
MR. LAURENT KASPER-ANSERMET
AS INTERNATIONAL CO-INVESTIGATING JUDGE IN THE ECCC

On 13 January the Supreme Council of the Magistracy met to vote and count the ballots concerning the proposed appointment of the International Co-Investigating Judge in the Extraordinary Chambers in the Courts of Cambodia.

The meeting discussed the request by the Secretary-General of the United Nations to appoint Mr Laurent Kasper-Ansermet as International Co-Investigating Judge, forwarded by the Royal Government to the Supreme Council of the Magistracy for its consideration.

Following discussion, the meeting reached the view that Judge Laurent Kasper- Ansermet’s posting of a considerable number of documents on his Twitter account concerning the ECCC, and specifically concerning Cases 003 and 004 since his appointment as Reserve International Co-Investigating Judge, would appear to violate of the Code of Judicial Ethics, the Internal Rules and legal principles as follows:

1. compromising the confidentiality and integrity of investigations by the public circulation of five names connected to ECCC Cases 003 and 004, which are protected by Article 121 of the Code of Criminal Procedure, Rule 56 (1) of the ECCC Internal Rules and Rule 19 of the Code of Judicial Ethics adopted by the Supreme Council of the Magistracy. This information was circulated despite the clear opposition of the Co-Investigating Judges expressed in their public statement issued on 9 June 2011;
2. criticizing both of his own colleagues, Co-Investigating Judges You Bunleng and Siegfried Blunk, by distributing information which violates several principles, namely Article 3 (1) of the ECCC Code of Judicial Ethics and Article 15 of the Code of Judicial Ethics adopted by the Supreme Council of the Magistracy on 5 February 2007, which states: “a judge should not express any opinion that could lead to conflict or criticism of judicial officers holding differing opinions”. Furthermore, this distribution could have an adverse impact and cause confusion or doubts regarding [his/her] impartiality, which is prohibited by Rule 8 of the Code of Judicial Ethics adopted by the Supreme Council of the Magistracy and could undermine the standing and integrity of the ECCC, which is prohibited by Rule 7 (2) of the Code of Judicial Ethics of the ECCC.

According to the results of the ballots cast and counted, the members of the Supreme Council of the Magistracy decided not to appoint Mr Lauret Kasper Ansermet as international Co-Investigation Judge, replacing Mr Siegfried Blunk who has resigned

Phnom Penh, 13 January 2012

Several observations are noted here, some related to the Constitution of the Kingdom of Cambodia, some related to older publications, in an effort to understand better what is being reported. Any clarifications or comments are – as always – welcome.

A summary of the proceedings of the Supreme Council of the Magistracy – part of the judicial branch – is presented by the Press and Quick Reaction Unit of the Office of the Council of Ministers – part of the executive branch. All such decisions are to be seen in the context of the Constitution of the Kingdom of Cambodia, from which follow some quotes:

• Article 51:
  … The legislative, executive, and judicial powers shall be separate.
• Article 128:
  The Judicial power shall be an independent power
• Article 130:
  Judicial power shall not be granted to the legislative or executive branches.
• Article 133:
  Judges shall not be dismissed…

Already on 13 January 2012, The Phnom Penh Post had reported under the headline KRT judge backflip:

Details about communications between UN Secretary-General Ban Ki-Moon and Prime Minister Hun Sen had been published but later declared retracted. These exchanges of letters and reports about meetings related to the planned change in the position of the judge Laurent Kasper-Ansermet, who had been appointed as Reserve Co-Investigating Judge on 1 December 2010 to succeed the Co-Investigating Judge Siegfried Blunk who had declared to resign on 9 October 2011, claiming that there had been political interference, compromising the independence of the Extraordinary Chambers in the Courts of Cambodia (ECCC).

The Council of Ministers’ spokesbody, the Press and Quick Reaction Unit [PQRU], issued a press statement yesterday, including details of letters between the premier and Ban.

However, it was quickly replaced by a three-paragraph statement on the government’s position toward the endorsement of Swiss judge Laurent Kasper-Ansermet, who will oversee controversial cases 003 and 004 with his Cambodian counterpart.

“We wish not to reveal details about the communications,” Ek Tha of the PQRU told the Post after the sudden replacement of the lengthy and detailed press statement with one of just three paragraphs.

“The first press release was done by another staffer – that information is not for the media, we wish to retract the first statement.”

The “retracted” press statement detailed a November 3 response letter from [Prime Minister] Hun Sen to [UN Secretary-General] Ban [Ki-Moon]’s October 18 request to him that the Supreme Council of Magistracy appoint Kasper-Ansermet as the new co-investigating judge.

“Response from the Prime Minister to the Secretary-General suggesting prudent consideration in the light of ‘certain activities by Mr Laurent Kasper-Ansermet that have been brought to public attention’,” the press statement reads.

However, this and the details of 11 other exchanges between the UN and the Royal Government of Cambodia regarding the endorsement of Kasper-Ansermet were replaced by the Press and Quick Reaction Unit with a three-paragraph press statement only 50 minutes later…

“In general, there have been communications and written letters [about the appointment],” Ek Tha [of the Press and Quick Reaction Unit] said, without providing further detail. “The Prime Minister talks at the national level and represents the national interest of Cambodia on the international stage.” – “We have never interfered with the work of the court,” Ek Tha said.

However, Council of Ministers spokesman Phay Siphan denied there had been any correspondence at all between Hun Sen and Ban [Ki-Moon].

“The Council of Ministers has drafted some reports, a profile of [Kasper-Ansermet] to give to the Supreme Council of Magistracy for information in making their decision whether to approve him,” Phay Siphan told the Phnom Penh Post yesterday.

Yesterday’s government press statement also said that the Supreme Council of Magistracy was now “independently carrying its normal procedures and legal considerations before a decision would be made.”

It is surprising that mentioning the names of Meas Ruth, Sou Seth, Im Charm, Ta An and Ta Tito related to the Cases 003 and 004 is now considered “compromising the confidentiality and integrity of investigations” – these names have been mentioned on the Internet hundreds of times since the early months of 2011.

On Friday, 27 January 2012, The Cambodia Daily had also reported:

…Finishing off his first visit as the UN’s new special expert on the court, David Scheffer on Wednesday said Judge Kasper-Ansermet had no need for re-approval by the Supreme Council of the Magistracy – having been approved once as a reserve investigating judge – and expected him to continue his investigations at the tribunal as soon as he returned from Switzerland…

Without going into specifics, Mr. Scheffer, the UN special expert, said Wednesday that Deputy Prime Ministers Sok An left him “optimistic” about Judge Kasper-Ansermet’s future after their meeting the day before.

“If it [the investigation] encounters difficulties, we’ll deal with those difficulties if and when they arise,” Mr. Scheffer said.

“I was not informed at all last night that those difficulties would be presented, so my expectation now is that [Judge Kasper-Ansermet]… will be able to fulfill his duties in the country.”

Looking forward to the return of Judge Laurent Kasper-Ansermet to Cambodia.