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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.)
Posted on 2002-03-30
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