by Terrence Wicremasinghe

  Confession is the main technique of proof - of guilt of an accused - in Cambodian courts. This practice has been followed even after 1992 when new procedural laws were adopted and a new constitution was promulgated, which contains an article to the effect that “confession obtained by physical or mental force shall not be admissible as evidence of guilt” (Article 38).

In 1992 under provisions relating to the judiciary and the Criminal Law and Procedure, provincial courts, which were established in 1981 and recognised in 1983, were consolidated and adopted as the court’s hierarchy in Cambodia. The same recognition was given under the Law on Criminal Procedure enacted in 1993.

In the system of trials held in those courts independent evidence was not the mode of proof. Confession was the technique of proof. Trials were held to get the confession obtained during police investigation confirmed by the accused at a public hearing.

Under Article 24(3) of the 1992 Criminal Law and Procedure, admissibility of confessions made to law enforcement officers during an investigation is given implicit legal recognition, and thereby the past practice of proving cases by the technique of confessions is promoted under statutory implication. This could not have been the intention of the drafters. Nevertheless, such unintended consequences are inevitable. The salutary provision in Article 24(3) that says “confessions by accused persons are never grounds for convictions unless corroborated by other evidence” has in fact no practical effect. The reasons will be discussed in the text that follows.

This was one of the biggest inexcusable errors committed by the drafters of the 1992 criminal procedural law and was due to their lack of understanding of the mechanism, techniques and the jurisprudence behind the system of courts that were functioning before and at the time such laws were introduced in haste.

Further, the intention of the drafters of the Law on Criminal Procedure of 1993 was quite clear and specific that this statute was enacted in the National Council of the State of Cambodia, as opposed to the UNTAC Criminal Law and Procedure, which was adopted in the Supreme National Council.

They deliberately introduced Article 125 that unequivocally recognized without any prohibition, restraint or conditions the reception of confession, whether made to a police officer or otherwise, as evidence to prove a crime.

This statute was adopted months after the adoption of the Criminal Law and Procedure of 1992. Article 125 intended in no uncertain terms to negate the effect of the restraint placed on the absolute reception of confession as evidence.

Having this in mind it is pertinent to discuss the nature and scope of confessions as an item of evidence in other jurisdictions in criminal proceedings.

What is a Confession?

Every confession is an admission. But every admission is not a confession.

As to what makes a confession evidence ordinances and evidence acts in different jurisdictions contain statutory definitions.

In the evidence ordinance in Sri Lanka, yet another Asian country like Cambodia, confession is defined as follows in Section 17(2):

“A confession is an admission made at anytime by a person accused of an offence stating or suggesting the inference that he committed that offence.”

Neither the Criminal Law and Procedure of 1992 nor the Law on Criminal Procedure of 1993 contains a definition of confessions. Article 24(3) of the 1992 law has recognized, as mentioned earlier, by implication confessions as legally acceptable evidence but contains an exclusionary rule prohibiting the reception of confessions obtained under whatever form of duress.

A general definition of a confession applicable to different jurisdictions is cited below:

“Confession is an admission the words of which expressly or substantially admit guilt or when they are taken together in the context inferentially admit guilt.”

The laws of different jurisdictions have placed severe constraints in varying degrees on the reception and proof of confessions.

Sri Lankan courts are barred from admitting in evidence confessions made to police officers and excise officers. So are the confessions made while the accused was in the custody of these officers. Identical prohibitions are found in the Indian evidence act.

In England, subjected to the test of voluntariness, confessions are admissible evidence. However, unlike in Cambodia, prosecution must prove that the confession has been made voluntarily. Only then a confession is admissible.

In the early years of the development of the law of evidence in England, confessions were admitted without any serious questions. However, it was felt later that grave injustice would ensue were the courts allowed the admission of confessions without any check. Attempts were made to protect the accused without the truth being hamstrung. To achieve this object the rule of voluntariness was introduced.

The first authoritative formulation of this principle is found in Rex v. Warickshall (1783) as cited below:

“A confession forced from the mind by flattering of hope or by the torture of fear comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it, and therefore it is rejected.”

This principle was given statutory recognition in the Evidence Ordinance of Sri Lanka in Section 24 and took the form of an absolute prohibition under Sections 25(1) (2) and 26. Section 24 states:

“Confession obtained by any inducement, threat or promise (proceeding from a person in authority) is irrelevant in a criminal proceeding, if at the time the confession was made the accused had reasons to believe that he would gain any advantage or avoid any evil of a temporal nature.”

Absolute prohibition is found in Section 25(1): “No confession made to a police officer shall be proved as against a person accused of an offence.” Section 26 (1) extends this prohibition to a confession made by any person while he was in the custody of a police officer.

In Hong Kong before a confession is received as evidence in court a preliminary inquiry has to be held to establish the voluntariness of such a confession. Only then it is received in evidence at the trial.

In Australia, a confession is only receivable at the trial as evidence if it is electronically recorded, otherwise barred from leading in evidence.

The drafter of the Indian evidence act, Sir James Stephen, in his introduction to the Evidence Act of 1872 (page 165), emphasized why such a prohibition was introduced: “In order to prevent the practice of torture by the police for the purpose of extracting confessions from persons in their custody in the hope of professional advancement.”

The Evidence Act was introduced to many other British colonies in most identical terms.

One must note that when the Indian act was drafted, its drafters introduced changes whenever the English law was considered to be in need of improvement or was thought to be unsuited to the local conditions.

In this sense the Indian and Ceylon statutes were not mere codifications of the English law but involved salutary departures from the English evidentiary rules. Severe restraints and prohibitions found in these two statutes in regard to the admissibility of confessions made during police investigations are clear illustrations of such departures having taken into consideration the criminal investigatory process and the men involved in it - under a colonial setup.

In the Cambodian context, a contrary approach was visible, so far as the drafters of its criminal procedural laws of 1992 and 1993 were concerned. As mentioned in the preceding paragraphs of this text, Article 24(3) of the Criminal Law and Procedure of 1992 has the effect of giving legal recognition to the reception of confessions even made to police officers or made while in their custody. If the accused failed to show the judge that it was extracted under duress prior to the sentencing, giving him notice under Article 24(3), evidence of that confession becomes admissible evidence against him.

Drafters did not take into consideration the local conditions and the criminal justice system that existed in Cambodia at the time this article was introduced to the criminal procedural laws.

Thereby legal sanctity was given to confessions as admissible evidence obtained during police investigations - in a criminal justice system where confessions had become the main technique of proof and independent evidence had no place in proving a case.

Recent cases in the Phnom Penh municipal court amply demonstrate this aspect. In Srun Vong Vannak’s case, a confession was extracted from him, according to the accused, by using physical torture. He had injuries. In spite of the accused person’s strongest denial of the confession, it was let in as evidence, and the conviction was made on this self-incriminatory evidence obtained according to the accused by using physical duress.

This case together with a series of other cases illustrate the degree of damage done in the administration of criminal justice in Cambodia - where courts are allowed to receive confessions made to police officers or made while in their custody under Article 24(3) by implication.

In the past, once a confession was extracted from a suspect his fate was considered already sealed. Thereafter he had only two alternatives - either to confirm it at the public hearing or to allow the judge to use his discretion (now it is provided by Article 24[3]) and accept the confession and declare its voluntariness and credibility. Even the strongest protest of the accused was tantamount to a confirmation from the judge’s point of view. In other words let the accused confirm it by himself, or otherwise let the judge order its confirmation.

This was the pre-1992 criminal justice cult that still continues.

Drafters of the new procedural laws failed to realize the organic link between the pattern of investigation of a crime and the cult of sentence hearing at the time they introduced the new laws.

In Cambodia law enforcement officers form no disciplined police force and are not subjected to effective control. Criminal investigations are left with the military police and the judiciary police. Better to term them as recalcitrant men or miscreants. Under these circumstances the adverse effects of Article 24(3) are more than obvious.

An accused is always at the mercy of any evidence either perjured or oppressively obtained by judiciary police or military police that might be brought against him. Under such circumstances when the technique of proving a case by confessions is promoted by implication under Article 24(3), which is read with Article 42 of the Law on Criminal Procedure of 1993, and allowed to prove the guilt of the accused, then justice becomes an unattainable end for an accused, and always his liberty will be in grave peril.

Drafters also overlooked the nature of judges in whose hands discretion was left to decide as to the voluntariness of a confession. The majority of those judges in the past still hold office, and they are psychologically trained and always morally inclined to accept the voluntariness and truthfulness of a confession.

They work on the common sense rule that “who knows the truth better than the person who did it.” This common sense rational has become a strict disciplinary legal rule with an executive diction in the working pattern of a judge’s mind that has used to respond to it for years. Perhaps this rule was used to achieve ends of a system that had a purpose of its own where the liberty and dignity of an individual were negligible. Those judges who carry with them these practices, prejudices and psychological attitudes are not temperamentally and technically qualified to investigate under Article 24(3) the truth of a confession.

Had the conditions of the country and the behavior and practices of policemen investigating crimes been properly addressed and correctly assessed, absolute prohibition on confessions made during police investigations - as admissible evidence - could have been the correct conclusion of the drafters.

Therefore, the logical conclusion one has to reach is the total prohibition of confessions made to police officers or while in their custody - as admissible evidence. It is suggested that Article 24(3) be repealed.

It is further suggested the total replacement of the criminal procedural laws of 1992 and 1993 - even though they contain very positive provisions, which were drafted at random without following a clear scheme and policy and therefore rendering them obnoxious and ineffective.

A discussion on confessions and Article 24(3) necessarily involves a close scrutiny and analysis of Article 42 of the Law on Criminal Procedure of 1993.

Wordings of Article 42 attribute authenticity to the contents of the judiciary police report and make it mandatory for judges to accept its contents as truthful and accurate. One must not forget that the confessions extracted from the accused are also recorded in this report. True that there is a condition to which this rule is subjected. However, the condition contained in this article in effect becomes obnoxious in practice. Article 42 states:

“Nevertheless the reports of the judiciary police shall be considered as authentic evidence to the contrary when they are drawn up by the officers of the judiciary police. In this case judges shall consider the essence of the report truthful and accurate, as long as contradictory evidence are not brought up. These contradictory evidence may be freely brought to the judge by all legal means.”

This shows the extent to which the justice system that existed at that time influenced the thinking of the drafters of this law.

It also shows further their inability to foresee the dangerous consequences to which the accused in a criminal proceedings were exposed by inserting this article to the criminal procedural laws of Cambodia.

Article 24(3) of the Criminal Law and Procedure of 1992 gave legal sanctity to the technique of proof, through confessions extracted during preliminary criminal investigation by police under the earlier criminal justice system. The police dossier - the scared document on which the accused was convicted in the earlier justice system - was given statutory recognition under Section 42 of the Law on Criminal Procedure of 1993, as the document spoke to the authenticity and truthfulness of what it contained, pertaining to the alleged crime.

These provisions, when read together, are not only repugnant to Article 38 of the Constitution that has recognized the concept of presumption of innocence, but in practice have resulted in reversing the procedure of fair trial intended and effected in re-establishing and consolidating the earlier practices of law enforcement officers and judges referred to in this text above.

This is the combined effect of Article 24(3) of the Criminal Law and Procedure of 1992 and Article 42 of the Law on Criminal Procedure of 1993.

To conclude this essay on confessions it is appropriate to emphasize that even in other jurisdictions in Asia, where liberal democracy prevails, severe constraints in varying degrees on the reception and proof of confessions are found in their statutes. As mentioned earlier, in Sri Lanka and India confessions made to police officers or confessions made while in police custody are totally barred as admissible evidence.

Why do Cambodian legislators not follow the same way? The Cambodian conditions and attendant circumstances demand the same.

  (Ed. note: Wicremasinghe is a lawyer from Sri Lanka. He has worked as a consultant to the Judges Mentors programme of United Nations Commission on Human Rights and the Asian Human Rights Commission programme in Cambodia.)