By Basil Fernando

Under the Khmer Rouge system of justice there was no pretence of conducting a trial. However, documents collected from the Toul Sleng prison show that “evidence” was collected against prisoners, particularly in the form of extracting confessions. Usually, these confessions were forcibly extracted from persons who were already politically “condemned” to death, though they often did not know that at the time. Besides these, tens of thousands died due to spontaneous and summary decisions taken by party cadres in various localities. The offenses varied from stealing food, showing any sign of attachment to a religion, picking fruit from a tree, using any indiscreet word that revealed one’s past, etc.

The overthrow of the Pol Pot regime by the Vietnamese brought with it the concept of a socialist-style trial, a model already well established in Vietnam. Refugees who fled Vietnam after the fall of Saigon have provided detailed information about the nature of these trials. They are modeled after the socialist trials which began with the notorious Moscow trials staged in the thirties by Stalin against his opponents, the Left Opposition figures and others.

The first such trial in Cambodia was of Ieng Sary and Pol Pot, who were tried in absence for genocide and crimes against humanity. This famous trial was in fact a piece of political theatre. Beginning with the decree which made this trial possible, several other decrees were passed, which were drafted under the guidance of the Vietnamese. The Vietnamese experts who advised the Cambodian authorities in every field of activity during the eighties were called Neakchamneanhkar in Khmer and Chuyen Gia in Vietnamese.1

A trial under the Vietnamese-Khmer model, which prevails from the eighties up to now, may be divided into the following sequence:

(a) Handing over a dossier by the police to the prosecutor of the relevant provincial court. This dossier consists of police investigations, the most important part of which is the confession by the accused. It may also include other reports and findings by the police.

(b) On the basis of this dossier, the prosecutor continues his investigations.

(c) The advice of the Ministry of Justice or the governor of the province is sought, and a consensus on a verdict is determined.2

(d) Public performance of “the trial.” After some ritualized formal steps, the verdict is read. In important cases, State television broadcasts the event to the public.

(e) The Ministry of Justice may vary the verdict whenever it feels.

(f) There is no system for hearing appeals in either Vietnam or Cambodia. Varying of verdicts or sentences is essentially an executive act.

The Paris Agreements and the UNTAC Legal Reforms

Under provisions on civil administration, the Paris Agreements empowered UNTAC to supervise the judicial processes throughout Cambodia. “In consultation with the SNC, UNTAC will supervise other law enforcement and judicial processes throughout Cambodia to the extent necessary to ensure the attainment of these objectives.”3

UNTAC, in fact, did not exercise this supervisory function, nor were there any officers specifically assigned for this function. However, after a few casual visits to courts and procurers, Mr. Surge Durond started to draft a limited code consisting of penal provisions. The initial draft was developed within a short time and submitted to the four factions. Only a few days were available for their comments. The NADK rejected the draft, the SoC and the FUNCINPEC suggested a few amendments. (A Khmer translation of the draft did not exist at the time.) This code, which is entitled “Provisions Relating To The Judiciary And Criminal Law And Procedure Applicable In Cambodia During The Transitional Period,” was adopted by the Supreme National Council on September 10, 1993. This 20-page document attempted to abridge legal provisions on such matters as judicial system (courts, appellate courts, Supreme court, independence of judiciary, police, attorneys, correctional system, etc.); criminal procedure (legal assistance, military tribunals, treatment of detainees, arrest and detention, pre-trial, administrative detention, release of detainees, access to files, arrest without a warrant, arrest based on existence of substantially incriminating evidence, searches, time limits and release for procedural error); trial (camera hearing, evidence, presumption of innocence, judgement, intervention, offenses based on opinion or belief, review of certain trials and statute of limitations); crimes (murder, voluntary manslaughter, rape, robbery, illegal confinement, organized crime, embezzlement by public officials, corruption, illicit traffic in narcotic drugs); misdemeanors (involuntary manslaughter, battery with injury, indecent assault, theft, offenses concerning cultural property, fraud, breach of trust, counterfeit of seals, bank notes, public documents, stamps and trademarks, violation of copy right, forgery of public document, forgery of private, commercial or bank document, receiving of concealing stolen goods, wrong damage to property, arson, bearing or transporting illicit weapons, coercion of witnesses, perjury, infringement of individual rights, bribery, incitement leading to the commission of a crime, incitement not leading to the commission of a crime or misdemeanor, incitement to discrimination, disinformation, defamation and libel, electoral fraud, use of narcotics); punishments (equality of punishments, death penalty, attenuating circumstances and expulsion of minors, complicity, suspended sentences, conditional release, allocation of fines); applications (abrogation of inconsistent rules, international instruments and entry into force).

Article 73 of these provisions abrogated “any texts, provision or written or unwritten rule contrary to the letter and spirit of the present text.” Notwithstanding that, all the practices of the Vietnamese-Khmer model remained firmly intact. The Supreme Court remained what it was, never conducting public hearings and only having the rights to read municipal court files and to recommend retrials by the same court. There has not been a single instance in which such rights have been exercised by the court. Judicial review is still an intriguing word to Cambodian judges, and they often want to know what it means. The appeals court was never appointed. Trials were conducted in the same manner as before: secret trial followed by a public performance. None of the provisions of the UNTAC provisional code was applied in practice, except in a few cases relating to the release of some prisoners who were kept for a considerable time without trial (in several instances, more than ten years). These releases took place due to insistence of human rights officers of UNTAC’s Human Rights Component.

Reasons for not Implementing UNTAC’s Transitional Law

Even a few months after the adoption of the Transitional Law, an official Khmer version was not available. There was an unresolved issue relating to differences in the French and the English versions. There were additions to the text even after it was adopted by the SNC, though these additions were never submitted to the SNC for approval. Thus there was confusion as to the law itself.

A more important reason for non-implementation was that the law itself was too inadequate to be taken seriously. The seventy-five articles of the provisions looked more like a first year law student’s notes, and yet were supposed to resolve all the provisions of penal law, criminal procedure, evidence and the judiciary. The text was an amateurish attempt at legal reform.

The drafters did not consider some of the more problematic areas, such as the relationship between courts and police, lower courts and higher courts (which did not function), the nature of trials under socialist system, etc. Police in Cambodia are far more powerful than the courts are. The public perception of courts is that they are powerless and are manipulated by the executive. Widespread allegations of corruption also exist. There is no public confidence in the Cambodian court system. The new text failed to address any of these problems. The Western view that whatever is drafted by the legislature is effective law prevailed. However, in the socialist “law,” mere approval by the SNC mattered very little.

UNTAC organized a few two-week seminars to instruct Cambodian judges about the new text. These seminars clearly showed that even the basic concepts introduced by the new texts were alien to the Cambodian judges. The judges expressed considerable confusion relating to what they were supposed to do. The provincial judges consistently expressed the need for guidance. In many provincial courts, things came to a complete standstill.

UNTAC’s Admission of Failure of the Provisional Law

When pre-election political violence grew in November and December 1992, the transitional provisions proved to be of very little use in investigating or prosecuting of these cases. Obviously, there were political reasons for non-compliance. However, attempts to get these cases investigated by the authorities showed the widespread practice of non-investigation of serious crimes, whether they were politically motivated or not. After much public concern was expressed on the level of violence (Prince [now King] Sihanouk even threatened to discontinue further co-operation with UNTAC and the SoC if immediate steps were not taken to stop the violence), UNTAC created its own law, empowering UNTAC police and military to arrest and UNTAC officers to prosecute. Under this new law, four people were arrested, and UNTAC was obliged to bring these detainees to trial. However, attempts to comply with the law showed that it was not possible to expect a fair trial under the existing procedures.

The special representative of the Secretary General for Cambodia, Yasushi Akashi, made further laws on February 3, 1993, to detain these persons until a competent court was identified to try these cases. Even when UNTAC finished its mandate in September 1993, no such court was identified. The February 3 directive was an admission that the UNTAC transitional provisions had failed to alter the existing socialist system of administration of justice.  

Law on Criminal Procedure - Chbap Sday Pee Neeteivitee Prumatoan - January 29, 1993, Passed by the National Assembly of the State of Cambodia (SoC)

The State of Cambodia passed its own law on criminal procedure on January 29, 1993. The document consisted of 238 articles and was divided into seven chapters. The topics covered general provisions, justice police, provincial public prosecutor department, investigating judge, provincial or municipal tribunals, appeal courts and the Supreme Court.

There have been different views expressed on the nature of this document. It was regarded by some as a supplementary law to the UNTAC transitional provisions. However, others expressed the view that this criminal code was meant to replace the UNTAC transitional law in the State of Cambodia. Doubts have also been expressed about the validity of laws passed by the SoC National Assembly during the transitional period under the Paris Agreements, when the only body that had the legal authority to make such laws was the SNC. Clearly, the SoC did not have the legal power to override or to abrogate a law passed by the SNC.

In actual practice, SoC courts applied some parts of this criminal procedure, such as the provisions on bail which did not exist in the earlier law. A number of people were released pending trial on applications by the human rights officers of UNTAC and later by Cambodian defenders.

The new institutions envisaged by the criminal procedure code were  not created, for example the Justice Police (Nokobal Yuttethoa, also sometimes translated as Judiciary Police). In fact, one of the most problematic areas is the co-ordination of the activities between the police and the prosecutors. The police do not initiate inquiries into crimes in many instances. When they do, they settle most cases on their own, without any references to prosecutors or courts. In the few instances that they do, the police consider their inquiries to be over and do not continue inquiries with the prosecutors or the investigating judges as envisaged in the procedure code. The basic aspects of “trials” still follow the Vietnamese model. This became obvious in the case of Ten Seng, the deputy director of Battambang prison, who was arrested by UNTAC police for torturing prisoners. When UNTAC left, the case was handed over to the Cambodian courts. The prisoner was “tried” in November 1993 and was sentenced to a one-year prison term. The pattern of the trial was no different to trials during the SoC trials. One of the judges justified the procedure by stating that the trial was correct according to the earlier law, meaning the law during the SoC period. There had not been a single trial conducted so far outside the SoC model. In short, the legal procedure proposed by this code was not brought to practice except in some areas, such as bail. Even in the area of bail, there are still prisoners who have not been brought to trial after six years of arrest. The forty-eight-hour rule for producing a prisoner before prosecutor is rarely put into practice. The courts have no systems for serving notices, summons or executing warrants. There are no means to enforce such order. However, court orders for further imprisonment are strictly enforced.

Corruption

Besides these problems, there is a general suspicion that police, prosecutors and judges are corrupt. The public confidence in the administration of the justice system is very low.

The Constitution

Article 139 of the Constitution of the Kingdom of Cambodia adopted by the Constitution Assembly on September 21, 1993, states that the laws and standard documents of Cambodia shall continue to be effective until altered or abrogated by new texts, except those provisions that are contrary to the spirit of the Constitution. The Vietnamese-Khmer socialist model of trial is contrary to the spirit of this Constitution, as this system of trial is contrary to liberal democracy and a free market economy, the two basic pillars of the new Constitution. It may be said that both the UNTAC transitional provisions and the (SoC) criminal procedure code still remain as valid laws. In fact, replies to inquires from provincial courts reveal that these two documents are considered as law by the courts. However, as explained before, the actual practices of courts on essential elements of the criminal justice system remain as they were prior to UNTAC’s arrival.

Conclusion

  While there has been much interest in reforming the basic criminal administration, there has not been a significant deviation from the Vietnamese-Khmer model which prevailed during the PDK and the SoC regimes. However, now more people involved in the administration of justice are aware of the problem than before, and the defects in the system are admitted quite openly now. In attempting reform, it is necessary to concentrate on essential elements, such as trials. The changes must expressly abrogate unacceptable laws and procedures and not rely on implied abrogation or general clauses on abrogation. The creation of new institutions must accompany new laws, instead of creating laws for non-existing institutions as was done in the instances of UNTAC transitional provisions, as well as the SoC criminal procedure code. The procedures must be detailed enough to be easily understood by all parties (Indian Penal Code and Criminal Procedure Code are examples of such detailed procedures), as there is no satisfactory previous law to fall back on or a system of interpretation of laws, as for example the higher judiciary in most other countries.