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Logo of Phnom Penh Post newspaper Phnom Penh Post - Defendants may be biggest losers in legal aid fight

Defendants may be biggest losers in legal aid fight

A SIMMERING disagreement between lawyers over who will have the right - and the funds

- to defend the poor may prevent those most in need from receiving legal protection

in seven weeks' time.

Starting January 1, 1998, non-governmental organizations (NGOs) who offer free legal

representation to poor Cambodians accused of crimes will lose their mandate to do

so, according to top legal officials.

The Kingdom of Cambodia Bar Association is supposed to take over the job but - partly

because its USAID funding has been cut - is having trouble corralling the necessary


"There will be no one to defend the rights of the poor," Bar Association

president Say Bory said last month. "There will be many problems for the defense

of those who [are] the poorest. The legal defense system will suffer at that time

from the cuts, international aid cuts."

Bory lamented the lack of support the Bar Association has received from the highest

ranks of the government - some of the same government officials who have handed it

the responsibility of protecting the poor.

"The Minister of Justice has given us nothing. Now we only have the generosity

of the Bar Association of Lyon and certain Bar Association members who no longer

have any money to give."

Under a controversial provision of the Bar Association law passed by the National

Assembly last year, only qualified lawyers and association members - which most defenders

are not - can represent clients in court from next year.

The Cambodian Defenders Project and Legal Aid of Cambodia, which have defended hundreds

of poor Cambodians in court, effectively face being put out of business. The NGOs'

supporters have long argued that the Bar Association will not be able to adequately

represent the poor: there are not enough qualified lawyers, and many of them will

go into more profitable fields such as business law, rather than criminal law.

To remedy the situation, Minister of Justice Chem Snguon is calling on such NGOs

to pour their funds into a special Bar Association kitty so it can fulfill its new

role as the "sole defender" of the impoverished.

"I told the president of the Bar Association that [legal defenders' groups]

must respect the law of the bar and aid must be handed over to the bar fund,"

he said Oct 20.

"[The groups] must pay lawyers for people who don't have the means to pay for

lawyers," Snguon said.

"Our idea is not to pay a monthly salary to all lawyers because some defend

the poor and others do not. Our idea is to create a fund for the Bar Association

to defend the poor... With these funds, the bar will pay the lawyers case by case.

It is more logical and less expensive."

A Bar Association annual report issued Oct 16 summarized his sentiments. "All

lawyers who defend the poor must work on behalf of the Bar Association. This is a

legal position currently in force in Cambodia," the report said, according to

an unofficial translation.

"The Cambodia Defenders Project and Legal Aid of Cambodia shall no longer be

entitled to receive funds from international organizations or from the government

of other countries who supply aid to defend the poor," it added.

Justice and Bar Association officials claim that paragraph two of Article 29 of the

law gives them the exclusive right to all funds destined to help defend the poor.

While Article 29 outlines the creation of a special association fund to pay lawyers

who defend the poor, it does not appear to mention any exclusive rights to the job,

according to defenders' groups.

Paragraph two of the article states: "The special account may receive donations

or aid from private or international organizations, or foreign governments to provide

for the defense of poor people."

Defenders said it is a good idea for such a fund to exist, but dispute that the bar

will have the right to unilaterally lay claim to NGO funds or resources. They also

said it would be impossible to hand funds they receive from donors over to the association

or the government.

"[They] want to centralize all funds under the bar. There is no way we can do

that," said Sok Sam Oeun, director of the Cambodian Defenders Project.

He also called it "strange" that the bar and the Minister of Justice would

try to prevent NGOs from giving free legal help to the poor, but he said he would

have to learn more about the proposal.

"I will talk with many people at the bar. I will look into Say Bory's proposal

on how to hire bar lawyers. [But] that does not mean all lawyers and NGOs will work

under him."

To encourage defenders' groups to hand over their funds, minister Chem Snguon has

made it clear that he will not balk at closing them down if they go against the spirit

of the law.

No lawyers will be permitted to work for defenders' organizations because they must

all work directly for the Bar Association itself, Snguon said, adding that the NGOs

may continue to exist if they work purely as an organizational structure to hire

Bar Association lawyers on individual cases.

Meanwhile, Say Bory - who has supported the association's sole right to represent

the poor - complained that it does not have the resources to do that.

If defenders do not put their money into the association's coffers, Bory lamented,

the poor will be left adrift.

"The population is going to suffer starting in January, 1998. The government

asks too much. They ask a lot, but they do not give us resources. Without resources,

what can we do?"

USAID aid cuts sparked by the ouster of Prince Norodom Ranariddh in July have aggravated

the situation, Bory said.

About $25 million, or two-thirds, of the USAID's aid to Cambodia will be terminated

by the end of the year, according to the US Embassy.

The embassy would not say how much money would be lost from legal education and support

programs, but at least three such projects are affected.

The Cambodia Court Training Project, the University of San Francisco legal program

in Phnom Penh and the American Bar Association - which provides support, including

office space, to the Cambodian Bar Association - are all having their USAID funding


Say Bory lamented the cuts, especially to the ABA, and said his association faces

increasing economic problems.

"We are in trouble," he said, explaining that the Bar Association will

be homeless when the ABA building closes in December.

"[Then-First Prime Minister Prince Norodom] Ranariddh and Hun Sen promised to

furnish me with an office, but until now, nothing."

Bory called the aid cuts "the dissolution of two years of work" and a "a

monumental error" on the part of the US government because "we are a part

of the organizations that defend human rights".

While the Bar Association faces economic difficulties, the two principal defenders

projects continue to receive funds. The Cambodia Defenders Project (CDP) appears

to be the sole law-based program spared by the USAID cuts, while Legal Aid of Cambodia

(LAC) is funded mostly from sources in the Netherlands.

Say Bory complained that USAID is applying a double standard by cutting off assistance

to the Bar Association, while sparing the CDP, when they are attempting to do the

same job.

He acknowledged that association lawyers have worked on only 68 cases since January

- a far cry from the thousand-plus cases defended by the defender groups - but the

cuts are not going to help the bar to grow into its new role, he said.

Sok Sam Oeun, of the CDP, said his organization was unaffected by USAID cuts because

it is a human rights organization that does not work directly with the government.

He pointed out that some Bar Association internal decisions can be appealed to the

prosecutor of the Appellate Court, so it is arguable that the bar is linked to the


"They are not part of the government, but neither are we," replied Say

Bory, adding that he would ask USAID to reconsider their decision.

Bory, who left Cambodia Oct 18 for a trip abroad, partly to try to raise money from

other donors, said he was hopeful of new funding.

"If there is an improvement in the political climate, if the National Assembly

adopts a satisfactory electoral and political parties laws, that could, I think,

have an affect on the position of donors."

But unnecessary damage had already been done to the association's work, he said.

"It is a serious error not to fund the Bar Association of the Kingdom of Cambodia.

I, if you know me well, am independent. If I was bought off by someone in the government,

I would have a building right away," he said.

"We can cut military aid, but not humanitarian. Above all, not the judiciary.

If they want to balance power [in the government]. I don't know why they don't take

that into account."



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