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Logo of Phnom Penh Post newspaper Phnom Penh Post - Being free and responsible under the "power of the gun"

Being free and responsible under the "power of the gun"

A dministrative Director, Asian Human Rights Commission, Hong Kong. HASSAN AbuKasem

invited readers for a constructive and a civilized debate on the rights and freedoms

in his article on Freedom versus Responsibility (PPPost, Dec 1-14). In fact, the

events taking place in Cambodia make such a debate very timely.

There are however some statements in this essay which are rather inaccurate. One

such reference is to the legal system of Cambodia which is: "The legal system

in this country - from the administration of civil and criminal justice to the application

of electoral law is based primarily on UNTAC's formula and Western concept, which

may or may not be practicable in Cambodian society." What is this civil administration

that is based on UNTAC's precepts or Western concepts? The civil administration of

Cambodia remains the same as the pre-election period, perhaps with some modifications

brought about by the relevant Ministries after the 1993 election. These modifications

have not made significant changes to the administrative system introduced after the

destruction caused by the Pol Pot regime to the previously existing system. What

came to be in the eighties was a form of administration with provincial centers.

This administrative system was introduced by the people who were involved in the

reconstruction of the country and the system differed according to which political

faction that controlled the country. In the larger part of the country that was controlled

by the State of Cambodia, a more developed administrative system was worked out,

with also the advice of the Vietnamese experts who were then called Neakchamneanhk

in Khmer and Chuyen Gia in Vietnamese. Naturally, in the making of this system, the

ideology accepted at the time played its part, influenced also by the continuing

civil law internally and the cold war externally. Every one knows that the change

of administrative systems takes time even when there is a political will to do so.

However, in Cambodia, the political will was concentrated in preserving the system

that came to be in the eighties. Besides, it must also be said that among the components

of UNTAC, Civil Administration Unit was more accommodating to the existing administrative

authorities than any other. To say that the civil administration of Cambodia is a

one created by it (UNTAC?) is to attribute to it a zeal for reforms that it never

possessed.

However with the imperatives of modernization faced by the country, this system of

administration needed serious changes. That again is not an issue peculiar only to

Cambodia. One has only to look around to other Asian countries to see how seriously

they concentrate on reforms on administration in order to profit from the changes

taking place in the world. Many leading Cambodians said they don't understand the

West and many "Westerners" said that they do not understand Cambodians

and a great opportunity for reforms was lost. The civil administration remains as

it was for better or worse.

What about the criminal justice system that is based on UNTAC precepts. The common

complaint about the system of administration that exists now is that it does not

measure up to anything. Almost all the Asian countries have very much more elaborated

Criminal Laws and Procedures. Some of these systems have existed over a century or

so. These systems have developed in a healthy atmosphere in which foreign models

and local genius have interacted to create something suitable for each country at

a given time. Most of the criminal laws that exist now in Cambodia were developed

in the eighties. They reflected the difficulties that existed in Cambodia at that

time. It may have suited to the commune based society of the time. What UNTAC did

was to introduce a small document known as the "Transitory Provisions,"

in which laws, procedures and evidence rules were all presented together in a few

pages. It is a disgraceful piece of 'legislation,' concocted within a very short

time and adopted without adequate consultation. However, there is nothing "Western"

about the few provisions contained in this legislation. Look in the Penal Codes and

Criminal Procedure Cods of most Asian countries and you will find all these provisions

and much more.

Perhaps the only lasting contribution UNTAC made to the Cambodian legal system is

the Electoral Law. It too is not Western in a bad sense. Most Asian countries have

similar provisions as contained in the electoral law. Whether there is the proportional

representation system or direct election system is the main difference. Both systems

exist in Asia. However the electoral law needs to be connected to a basic legal infrastructure

if it is to remain effective. UNTAC provided a limited structure, the purpose of

the 1993 elections. For example when some provisions were breached, a group of senior

UNTAC officers met to consider such breaches however high the culprits may have been.

Prince Chakrapong, for example, was found guilty of such a breach and was made to

pay a fine of $5,000. However, there is no permanent legal infrastructure now, to

make an electoral law useful as shown in several occasions during the last few months.

Any living law needs constant interpretation. This function is too important to be

left to the politicians. In most Asian countries this function is left to an independent

election commissioner whose decisions could only be challenged by a court of law.

Lack of authorities with independence and absolute lack of an independent judiciary

is a distinguished feature of Cambodia compared to most other Asian countries.

The issue faced in developing a legal system is no different in Cambodia than of

other Asian countries. Of course the situation of a lack of a system is much more

visible in Cambodia, after Pol Pot's unique contribution to Cambodian history. The

genius of the nation is by which way one learns from others. Many Asian countries

have shown their capacity, intelligence and wisdom of their accumulated collective

experience in the way they have developed their systems.

Trying to understand what happened in the eighties is a much better way to understand

modern Cambodia, than to make it appear there had been a great "Westernization"

process in Cambodia during UNTAC's brief stay. There is continuity in Cambodian systems

as there is continuity in the administrative and legal systems of Myanmar despite

many attempts at change. Once civil laws leave their thumb prints on a country's

history, it is very difficult to erase them. A lasting legacy of a civil law is militarism.

Militarism is not only a way of ruling but it is also a new economic arrangement.

It creates new elite and its disappearance becomes a threat to the survival of these

new elite. Rhetoric of democracy used by the new elite bears little relationship

to the reality of the new power blocks which does not submit to democratic institutions.

Winning and losing elections affect the real politics only superficially. This fact

has been clearly demonstrated by the Myanmar election of 1989 and the Cambodian election

of 1993. Superimposing democratic institutions on a society whose ruling norms and

systems are still militaristic does not amount to a change in political or administrative

systems.

How do the concepts of freedom and responsibility operate in a military system claiming

to be under transition to democracy? The absence of trust and confidence of people

in the system influence the way people define freedom and responsibility. In a militarized

society responsibilities are enforced by the use of the "power of the gun."

Before introducing a debate on freedoms and responsibilities, it is necessary to

be assured whether any type of confidence on the possibility of freedom has come

into being. Without such assurance only a few people who have some daring would take

the risk to test the claims for social change. Others will watch as to what might

happen to these people, the avant-garde. When the real face of society reveals itself

by way of cruel reprisals against everyone who dares take the first steps toward

freedom, people learn that the claims for change are not true. If any leader is really

serious in proving that there is a transformation toward freedom, he or she must

demonstrate this as Aung San Suu Kyi is demonstrating it in Myanmar. Their military

regime there has constantly been reminding her to act responsibly. By her defiance

she has demonstrated that she is a very responsible and trustworthy leader committed

to democracy. Those who oppose democracy have their own yardsticks for freedom and

democracy. To accept these is to submit to a military way of life for a long time

to come.

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