|
By The Honourable Justice Michael Kirby AC
CMG*
At a defining moment in the history of
Cambodia, I had the privilege of working with its people to help
build a society respectful of the rule of law, fundamental human
rights and the independence of judges and lawyers.
My adventure began in the No 1 courtroom of
the Supreme Court Building in Phnom Penh in July 1993.
This was during the phase when Cambodia was under by the United
Nations Transitional Authority for Cambodia (UNTAC). Shortly
afterwards, when the Kingdom of Cambodia was re-established, I
was appointed as the Secretary-Generals Special
Representative for Human Rights in Cambodia. At the seminar and
later when working with the U.N. Centre for Human Rights in Phnom
Penh, I came to know and greatly to respect the integrity,
dedication and fearlessness of many marvellous officers of the
United Nations who had dedicated their lives to building a better
world. Basil Fernando was then the Chief of the Legal Assistance
Unit at the U.N. Centre for Human Rights. I came to know his
sterling qualities.
Although Basil Fernando has completed his
mission for the United Nations and departed from Cambodia to work
in a larger theatre of human rights, he has left (as I have) part
of his heart behind .He continues to work for the improvement of
human rights in Cambodia. After decades of revolution, war,
genocide, invasion and subjection to autocracy, the brave hopes
of the United Nations, and people around the world, were that
UNTAC would usher in a pluralistic democracy, constitutional
institutions and a restoration of respect for human rights. The
experience of many countries shows that these objectives are
difficult, or impossible, to attain without competent,
independent and impartial courts established by law. Only
such bodies can defend the weak, the vulnerable and the unpopular
from the brutal power of money and guns. Although some progress
has been made towards the objectives of the United Nations, most
especially the rise of valiant proponents of human rights and the
establishment of a plethora of insistent civil society
organisations, most of the recommendations of the July 1993
seminar and most of those made by me as Special Representative of
the Secretary-General, remain unimplemented. This book is a
record of the many continuing failures in the Cambodian legal
system. Yet it should be looked upon positively - as a challenge
to the stalwart and enduring Cambodian people, and an agenda for
action by their leaders.
I challenge anyone to read Mr. Fernandos
analysis of the legal scene in Cambodia and to emerge without a
sense of frustration, distress and determination to help to put
things right. Many of the fundamental constitutional bodies have
still not been established because of political wrangling.
Still, many of the systems introduced during French colonial
rule, inimical to independence of the judiciary, remain in place.
Some judges still telephone the Ministry of Justice for guidance
on how a case should be determined. Still in operation is the
communist system of public prosecutors determined to obtain a
confession from the accused at all costs. This is a relic of the
autocracy that came to Cambodia with the Vietnamese invasion;
although at least the invaders helped to rid the country of the
genocide and chaos of the Khmer Rouge. Still, judges, prosecutors
and citizens lack modern laws to govern their conduct. The
legislative programme of the National Assembly still remains slow
and uncertain. Still, the military and some officials can place
themselves beyond the effective control of law and the civil
power. Still, effective remedies to strike down laws and
actions that are inconsistent with the Constitution and
fundamental rights, remain imperfect or unavailable.
Reports of extra-judicial killings and comments attributed to
governmental leaders justifying or even supporting them, still
continue to be a source of great anxiety.
My successor as Special Representative,
Ambassador Thomas Hammarberg, has continued, like me, to insist
on the centrality of building an effective legal system for the
practical protection of the rule of law and fundamental rights in
Cambodia. Some progress has been made. Proposals are
currently before the National Assembly substantially to increase
the salaries of the judges without which the risk of corruption
is ever present. Legal education is increasing. The
foundations for a civil society have been laid. The
Cambodian people have tasted freedom, protection of fundamental
rights and the rule of law during UNTAC. Above all people
of the world, they know the alternatives.
The strength of this book is that it does not
only concentrate on the problems facing the Cambodian legal
system. It contains an agenda for change and for action. I
certainly agree with the author that the impetus for, and
direction of, such change must be found in the culture and
traditions of Cambodia. But it must also be found in the
universal principles of human rights to which Cambodia has
subscribed and by which its government and officials are bound. I
hope that Basil Fernando will continue to share his wisdom and
experience with the people of Cambodia and those of us in the
wider world who support the efforts to free its people from the
shackles of the past, A modern society and a prosperous economy
demand an effective legal system. In their hearts all of Cambodias
people know this. That is why a book like this is so important
and timely.
Michael
Kirby
Canberra
1 July 1998
*President of the International Commission of Jurists; Justice
of the High Court of Australia; formerly Special Representative
of the Secretary-General of the United Nations for Human Rights
in Cambodia.
Posted on 2002-03-14
|