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KR draft law: a legal opinion

IN the last mandate, both Co-Prime Ministers sent a letter to request the UN to assist

the Royal Government of Cambodia (RGC) to form an International Tribunal to try the

senior Khmer Rouge leaders responsible for so many deaths. However, the situation

has since changed and both the RGC and the UN have instead agreed to form a mixed

tribunal to try former KR leaders.

On July 7, 2000, the Minister of the Council of Ministers, Sok An, and Hans Corell,

chief legal counsel for the UN, agreed on a Memorandum of Understanding on legal

principles relating to the Establishment of Extraordinary Chambers in the Courts

of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic

Kampuchea.

As an Attorney-at-Law in the Cambodian legal system for the past 10 years, I would

like to offer some comments and recommendations to make this tribunal more credible

in the eyes of the Cambodian people who have lost all confidence in the legal system.

We will have no second chance to try the Khmer Rouge leaders for the murder of so

many of our relatives if this tribunal fails.

Decision-making: The Problem of the Supermajority

The composition of mixed judges as agreed between the RGC and the UN is acceptable

because it ensures that the decision making is reasonable and fair.

However, the supermajority decision mechanism decreed in the agreement (four of five

judges in Trial Chamber, five of seven in the Appeal Chamber and six of nine in the

Supreme Court) is extremely problematic in that it will be very hard for supermajority

decisions to be made.

It will be easier and fair if the decision is a simple majority based on a mixed

decision ie a simple majority with at least one Cambodian and at least one International

Judge agreeing.

Neither the MOU nor the Draft Law states clearly what exactly constitutes a decision.

It is not clear whether it is a decision to convict or acquit. It should be clear

that it is the decision to convict that requires the supermajority. If they cannot

get a supermajority to convict the defendant, he or she shall be acquitted.

The post of the investigating judge

There has been much discussion and debate recommending the abolition of the post

of the Investigating Judge because it violates provisions of the Cambodian constitution

specifying that only a prosecutor can file a criminal suit.

The post of Investigating Judge has also been criticized due to a belief that he/she

will have too much power and influence.

In addition, the role of Investigating Judge is inherently problematic because no

human being can successfully juggle two inherently opposing responsibilities - prosecuting

and making judgments of guilt or innocence.

The Investigating Judge also assists only the prosecuting side, effectively sidelining

the prosecutors. The post of investigating judge also obstructs the work of police.

The power of the Investigating Judge to make conclusions about the guilt or innocence

of the accused also violates suspects' presumption of innocence.

I recommend that the post of Investigating Judge be abolished and replace by an independent

unit of investigators under the supervision of the prosecutors. The prosecutors will

then be able to work more closely on each case, improving cooperation and efficiency.

The coprosecutors

The planned co-prosecutor system could create conflicts over which prosecutor will

examine witnesses and how each prosecutor will argue in court. If both have the right

to make closing arguments for the same case, what will happen if their arguments

are inconsistent?

Victim and witness protection

The agreement states that the court shall provide for the protection of victims and

witnesses, but does not state clearly who has the responsibility to protect them.

Because this tribunal is the responsibility of both the UN and the RGC, I recommend

that the protection of the persons involved, such as witnesses, victims, and court

staff, shall be the responsibility of both the UN and the RGC equally.

Right to counsel

Article 11 of the Cambodian Constitution specifies a suspect's right to counsel and

the right to have counsel provided if the defendant does not have sufficient means

to pay for it. But the constitution does not state whether the defendant has a right

to foreign or mixed counsel and does not state clearly who is responsible.

I recommend that the accused should have the right to have foreign, or Cambodian,

or mixed counsel and the UN and the RGC shall be jointly responsible to pay for the

counsel if the defendant does not have sufficient means to do so.

- Sok Sam Oeun is an Attorney at Law, Director of the Cambodian Defenders

Project, Chairman of Legislative Sub-committee of Human Rights Action Committee and

Chairman of Legislative Sub-Committee of Comfrel.

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