| By Duong Sokha |
Kampong Som (Cambodia). 28/08/2007: Provincial court of Kampong Som
It is retirement time for the sixty-year-old. The order given to all ministries in Cambodia in the directive issued on January 12th 2009 by prime Minister Hun Sen cannot be clearer. Once the fateful retirement age - sixty years - is reached, civil servants are required to leave their positions. The measure is officially aimed at improving “governance” and “efficiency” in the management of the administration. But it is not to the liking of all those concerned, little inclined to exchange their small salary for a most hypothetical pension. In order to avoid being forced to leave, some have requested more or less successfully the intervention of high officials, while others have not hesitated to falsify civil status documents to make themselves a few years younger. In the Ministry of Justice, the administration proves even more understanding with its old magistrates, who are allowed “extensions” due to staff shortage.
A difficult replacement
In the January 12th directive, which actually only aims to remind ministries of their obligation to implement the Law on the common statute of civil servants promulgated on October 24th 1994, Hun Sen stresses that any false age declaration and any delay in making civil servants retire are formally prohibited. But has this call really been heard by the judicial power, which neutrality has been so often questioned by the population? Heard, undoubtedly. Implemented, that is a different story.
Without taking a stance on the legitimacy of the measure, Keo Sophal, Under-Secretary of State to Justice in charge of the personnel and administration section, simply recalls that the appointment, reassignment, sanction and retirement of magistrates do not fall within the competence of the government, but of the Supreme Council of Magistracy (SCM) of Cambodia, an institution comprised of eight members and presided by King Norodom Sihamoni. “Some judges who have reached retirement age have submitted a written request to the SCM to delay the start of their retirement. The Council is the one who will allow it or not,” he declares.
But the high official still wonders, “If old magistrates were all forced to retire, would there remain enough judges to rule on the disputes of citizens?” He then shares some evocative figures: there are only 188 judges and 91 prosecutors today in Cambodia, for a population of 13.4 million people.
The SCM is empowered to rule in favour – or not – of those judges who intend to keep their functions beyond their 60th summer. And it can only be noticed that the Council has not refrained from doing so. For instance, in a royal decree signed on January 31st 2009 by King Sihamoni, that is 19 days after the publication of the prime Minister's directive, the SCM decided to allow four 60-year-old judges to continue working for one year, thereby giving a favourable response to their request. Recently contacted by telephone, two of the four concerned judges, Thong Ol, vice-president of the provincial court of Kampong Cham and reserve co-investigating judge at the Extraordinary Chambers in the Courts of Cambodia in charge of judging former Khmer Rouge leaders, and Pol Vorn, president of the provincial court of Pursat, flatly refused to comment the decision and explain their motives.
Henrot Raken, SCM member and general prosecutor of the Cambodian Court of Appeal, justifies the conciliatory attitude of the Council on the grounds of a lack of available human resources to ensure the replacement of the retiring magistrates. According to him, until now, the SCM has reportedly forced only one magistrate to retire. “Magistrates make a request [to the SCM] to delay the date when they have to retire and the SCM generally gives its agreement,” he explains.
Training established since 2002
If a shortage of magistrates exists, it is to be imputed to a delay in the training of young recruits, explains the Under-Secretary of State to Justice Keo Sophal. During the second term of the government (1998-2003), there was no selection of candidates to the positions of magistrates. It was only in February 2002, the high official recalls, that initial training and continuing vocational training for future judges and prosecutors were set up and mandated to the new Royal School of Magistracy. Fifty future magistrates were recruited upon exam on the first year and every year since 2004. They must follow specific courses for two years. “At the end of their comprehensive training, they must complete internships in a court, for one year minimum with ordinary judges before they are allowed to take office,” he specifies. “Until today, only the magistrate students of the first and second promotions were confirmed in posts. We are therefore faced with a shortage,” Keo Sophal argues.
Henrot Raken adds that the magistrates fresh from school are unable for now to replace the judges and prosecutors who have reached retirement age. “In principle, if a statute on magistrates existed [in Cambodia], magistrates would have to report ten years of experience before they can be appointed prosecutors or court presidents,” the general prosecutor explains. “Presumably, [at the end of their training] they can be appointed judges or deputy prosecutors.”
For several years, Cambodian civil society has called for a law on the statute of judges and prosecutors, which they hope will include a guarantee for the independence of the judicial branch. In its absence, some uncertainty prevails as magistrates are theoretically subject to the Law on the common statute of civil servants. A draft law on the statute of magistrates is reported to be currently “in the process of review,” according to the Secretary of State to Justice Hy Sophea, who gives no further details.
Retirement of 13 magistrates
However, the human resources shortage have not prevented some sixty-year-old magistrates from retiring, willy nilly. But voluntary retirement remains rare. A royal decree signed on September 3rd 2005 by King Sihamoni instructed the Ministry of Justice to order into retirement 13 magistrates (nine judges and four prosecutors) who had reached their sixties. It is reportedly the first group of Cambodian magistrates made to retire by a royal decree, upon suggestion from the Ministry of Justice. Thus, twelve were meant to leave their functions on October 1st 2005 and the 13th one on March 1st 2007. In contrast, the letter sent by Justice Minister Ang Vong Vathana to Minister of Social Affairs Ith Sam Heng to request the issuance of pension books for the 13 retired magistrates was dated August 31st 2007 only, that is two years after the royal decree was signed... The Justice Minister could not be reached to explain the delay and provide further information on this case.
8 months of salary for magistrates
Indeed, the issue of the payment of pensions is a cause for concern. Eight days before the publication of the government directive ordering the retirement of civil servants over the age of 60, prime Minister Hun Sen was careful to specify - in a sub-decree dated January 4th 2009 - the amount of pensions and bonuses for retiring magistrates. According to the sub-decree, retired judges and prosecutors must receive the equivalent of eight months of salary at the time of their retirement, then from the following month, the pension must match their last salary.
Until today, the payment of pensions appears to have been random. Chan Huon, aged 65, former judge of the province of Koh Kong, who was part of the group of 13 magistrates ordered to retire “over three years ago”, affirms that he has never received his pension from the Ministry of Social Affairs and he does not know which authority to turn to. When he was in post in Koh Konh from 2003 to 2005, he earned 1.4 million riels (350 dollars) every month. “If the government asks me to come and get [my pension], I will go. Otherwise, I do not know how to receive it,” the former magistrate deplores, who also used to be Secretary of State to Justice at the end of the government's third mandate. He adds that he too would have liked not to among the group of the 13 retired ones. But his request to the SCM for a delay - through the intermediary of the Ministry of Justice - was rejected, unlike others...