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Logo of Phnom Penh Post newspaper Phnom Penh Post - Bar fees last KRT hurdle

Bar fees last KRT hurdle

Judges at the Extraordinary Chambers in the Courts of Cambodia (ECCC) announced on

March 16 that the bar fees for foreign lawyers proposed by the Cambodian Bar Association

(CBA) were now the last remaining barrier to their approval of the Khmer Rouge Trial's

long-contested draft internal rules.

Concern has been expressed that such fees will affect the quality and quantity of

foreign lawyers willing to work at the trial. But Mark Ellis, executive director

of the International Bar Association (IBA), said the most pressing issue is to determine

the motives behind the CBA demand for such charges.

"What is the purpose of the fees?" he asked the Post by phone from London

on March 20. "It seems, on the face of it, that this is a situation where the

CBA is, once again, trying to control the entire process. This is shortsighted, it

demeans the legal profession in Cambodia, and it hinders the trial's ability to meet

international standards."

Brad Adams, Asia Director of Human Rights Watch (HRW), said the fee controversy showed

how deep the "rot" is at the CBA.

"Instead of doing all it can to facilitate a proper defense for those accused

at the ECCC, it sees this as an opportunity to make money," he said. "It

is very unlikely that it dreamed up these fees on its own. More likely is that it

is taking instructions from the government as part of the government's continuing

strategy of bargaining and obstruction."

Adams said the standoff over bar fees has made Technicolor long-standing concerns

over the independence of the CBA.

"What there is no doubt about, given the meddling of Hun Sen in the affairs

of the Bar Association in the past and the personalities leading the Bar Association,

is that if the government wanted the Bar Association to drop its demands, it could

make this happen with a phone call," he said. "Unfortunately, this is part

of a pattern of erecting unnecessary hurdles, of which I'm afraid there will be many

more in the future."

Concern has been expressed that the fees the CBA is demanding will affect the quality

of the defense. And it has been suggested the imposition of high bar fees on foreign

lawyers is a violation of the CBA's responsibility to ensure defendants may select

their own defense.

"You need to ensure that foreign lawyers who have expertise in this area are

able, with no barriers, to participate," the IBA's Ellis said. "This is

absolutely consistent with international standards and should be something the CBA

abides by."

High bar fees may limit the number of foreign lawyers willing to appear before the

ECCC, said Marcel Lemonde, co-investigating judge, on March 20. This would allow

defendants to argue that they were not afforded the right to have counsel of choice,

he said.

"The rules cannot be adopted until we are satisfied that they provide for fair,

transparent and open trials, which imply a strong defense for any accused,"

he said. "This has been an issue for nine months and all the judges of the ECCC

want it resolved immediately so that the courts can begin their much-delayed judicial

work."

The CBA only became involved in devising the rules concerning the participation of

foreign lawyers at the insistence of the Cambodian judges, Lemonde said.

"The international judges of the ECCC consider that there is a sound legal basis

enabling the ECCC itself to organize the whole process of registration and discipline

of foreign lawyers appearing before the ECCC, without the assistance of the Bar Association

of the Royal Kingdom of Cambodia," he said. "This is established practice

in other hybrid tribunals."

Ellis said the way the CBA has chosen to use its involvement is troubling.

"I become concerned when I see the CBA raise the issues they have," he

said. "They are continuing to send out statements [that] are all signs of a

Bar Association that is putting up barriers rather than finding ways to support this

very important process of international justice. This is what a domestic bar should

be doing - embracing the idea of accountability and justice, not attempting to impede

it."

Lemonde said the CBA's proposed fees - $500 membership application, $2,000 when selected

to represent a client, plus $200 a month in dues - are considered a "prohibitive

entry cost" by the international judges.

The CBA charges Cambodian lawyers $200 membership application, then $30 in dues every

three months.

On March 18, Ky Tech, president of the CBA, called the international judges "feeble"

for allowing the fee issue to interfere with the adoption of the internal rules.

Tech maintains the CBA's fees are reasonable. He told local media that foreign lawyers

earn $1,000 a day, so fees will not affect the quality or quantity of foreign lawyers

willing to work at the court. The ECCC's principle defender, Rupert Skillbeck, rejected

Tech's assertion.

Motive uncertain

Nay Dina, executive director of the Khmer Institute for Democracy (KID), said it

is difficult to discern the CBA's motivation for requiring the fees.

"Some people speculate that the bar has financial objectives, some say they

may want to delay the court," Dina said. "I honestly don't know why they

impose such high fees. Other international courts don't have such high fees."

The IBA's Ellis said no other international, domestic, or hybrid trial has seen a

national bar association try to control the process of foreign lawyers coming in

through the imposition of fees.

"Look at the Iraqi tribunal," he said. "At no time did the Bar Association

prevent foreign lawyers from participating in the trials. At no time did they put

up barriers, or impose fees. They were not trying to extort money, they were trying

to set the best defense teams possible to prepare and participate in the trials."

The CBA could have used the fee issue as an opportunity to set high standards for

an open trial process that does not restrict foreign lawyers participating and that

is committed to establishing a judicial process that meets international standards,

Ellis said.

"I do not think that the CBA at this moment is playing a constructive role in

setting standards that would be accepted and embraced by future courts," he

said.

KID's Dina said one of the perceived benefits of the ECCC was to be its role in setting

higher standards for the Cambodia judicial system.

"The imposition of fees will have a big impact as the ECCC was to be a model

for the Cambodian courts," she said. "We wanted international standards,

a fair trial, and justice for the people, but if foreign lawyers cannot participate

we will not achieve this."

The Bar Association's failure to yield to concerns about its fees has prompted a

reaction from local and international civil society groups.

On March 19, the Cambodian Human Rights Action Committee (CHRAC), a coalition of

23 local NGOs, and the Bangkok-based Asian Forum for Human Rights and Development

(Forum Asia), issued a statement expressing "deep concern."

"We urge the CBA to reconsider its request, in particular the exorbitant, prohibitive

amount [of fees,] in light of the spirit of larger goals of the ECCC," the statement

said. "[We] urge all parties involved not to use the issue of charging fees

for foreign lawyers as an impediment to the justice-seeking process for the millions

of Cambodian people who are waiting anxiously."

Thun Saray, president of Adhoc, and one of the signatories to the statement, said

he was concerned that leading international lawyers who might have worked without

charging fees for victims at the ECCC may no longer wish to as a result of the high

bar fees.

"It is illogical," he said. "You are obstructing the best lawyers

in the world from coming to Cambodia to provide advice for Khmer Rouge victims. You

need to have the fairest trial possible, but if you don't have good international

lawyers to face the government's prosecutors it will not be fair."

Ellis said the most pressing issue that the fees issue has brought to the fore is

the concern over links between the CBA and the government.

"We are not naïve, we are aware of these concerns," he said. "We

will continue to look very carefully at any evidence that CBA is not independent

but is an arm of the Cambodian government."

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