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
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