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KR Law is wrong

Dear Editor

The assertions made by those in the legal profession and in persuasive circles of

Cambodian civil society in the article, "KR law moves but fine print threatens"

(Post, Feb 16-Mar 1, 2001) were disturbing, not to mention flawed.

On Feb 12 the Constitutional Council decided to send the KR Tribunal law back to

Parliament, ordering the Parliament to insert a paragraph in Article 3 of the law

disallowing the death penalty. The Council's "rationale" was that Article

3 of the draft law re-ratified the 1956 Penal Code. The 1956 Penal Code provided

for the death penalty in punishment of certain crimes. This move smacks of delaying

tactics on the part of people within the government to stall the process of bringing

the alleged KR murderers to justice. In fact, there is no need to insert any additional

paragraph into the draft law as Article 38 of the KR Tribunal law generally prohibits

death penalty. Thus, Article 3 of the draft KR Tribunal law does not breach the Constitution.

In contrast, adding another paragraph would make the law more confusing and less

sophisticated. This is coupled with fairly bad wording and unsophisticated Khmer

defining crimes in the draft law.

In the article, Dr. Lao Mong Hay and lawyer Sok Samoeun, among others, were quoted

as saying that by extending the statute of limitation by 20 years, Article 3 of the

draft law breaches the principle of non-retroactivity. Dr. Mong Hay stated that "no

civilized nation would accept retroactivity of law". He added that it would

breach the Paris Peace Accords, Annex 5. Sok Samoeun agreed. However, their argument

is incorrect. Extension of the statute of limitations has nothing to the principle

of non-retroactivity of criminal law. Article 3 only calls for extension of time

for prosecution, it does not make non-crime then a crime now. Plenty of civilized

nations accept extensions of statute of limitations. It is the limitations period

that is in force at the time a person is charged and prosecuted, not when a person

commits a crime that is relevant. Nothing here makes a new crime or charge retroactive.

Case in point, under the German Penal Code 1871, crimes such as crimes against humanity,

war crimes were punished under crimes such as murder, manslaughter and unlawful deprivation

of liberty. The limitations period for these crimes was between 10 and 20. By the

Act of Aug 9, 1954, on the accession of West Germany to the 1948 Genocide Convention,

an Article was inserted into the Penal Code as special penal provision against genocide,

which was not a crime in 1871. Because the constitutional prohibition of ex post

facto criminal laws, the newly inserted genocide Article cannot have any retroactive

effect. To circumvent this barrier, the German Parliament on June 26, 1969 passed

a law which provides that crimes based on the new Article, ie genocide, do "

not come under the statute of limitations"; and at the same time and in order

to prosecute the Nazi criminals for murder, manslaughter and rape during the Nazi

era, the Parliament extended the limitation period for these crimes from 20 to 30

years. As a result of this legislative change, the new limitations period for murder

and manslaughter entered into force on Dec 31, 1979, ie 34 years after the fall of

the Nazi regime. Because of the change in the limitations period, Nazi war criminals

and those guilty of murder or manslaughter during the Nazi regime could be lawfully

charged.

Another point in relation to your article is that while sympathy for the victims

is an important virtue, often virtue has nothing to do with justice. For Dr. Mong

Hay and Sam Oeun to support the "right" of victims and prosecutors to appeal

an acquittal verdict is tantamount to advocating that Cambodia breaches international

law, specifically the principle of double jeopardy stipulated in the International

Covenant on Civil and Political Rights to which Cambodia is a party. Allowing the

appeal of this nature would not promote efficacy or efficiency at the trial level

either. It is true that the first instance courts are largely incompetent in Cambodia,

but this would not be a way to redress the problem. Double jeopardy should be prohibited

regardless of the pain of victims seeing an accused walk free. This principle ensures

that the government does a proper job of prosecution the first time around and does

not get a second bite of the apple. Liberty of the accused is also as important.

In addition, the KR Tribunal law does not give the Extraordinary chambers the competence

to hear civil suits. Therefore, victims cannot commence civil proceedings against

former members of the KR. The victims could try to take action in the normal court,

but they would have a limitations problem as in normal civil suits, [where] the statutory

limitation under the general Cambodian law is three to five years. Unless the law

is changed to accommodate the civil suits against the KR, the time to bring such

actions is long gone.

- Bora Touch, Sydney

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