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Logo of Phnom Penh Post newspaper Phnom Penh Post - KR trial process 'at square one'

KR trial process 'at square one'

Final approval of the Khmer Rouge tribunal law has been delayed yet again due to

Cambodia's Constitutional Council's insistence that sections of the law that appear

to mandate the death penalty be removed

The delay was announced just prior to the Feb 21 departure of King Norodom Sihanouk

for routine medical treatment in Beijing.

The King had been widely expected to sign the tribunal law before he left, but departed

from Cambodia without making any comment about the matter.

The Constitutional Council is demanding that a clause be inserted in the tribunal

law's Article 3 specifying that the death penalty be prohibited as a possible punishment.

The Council's objections are based on Article 3's references to Cambodia's 1956 penal

code, which mandates the death penalty for crimes such as murder.

The law's 1956 penal code references are designed to extend the tribunal's jurisdiction

to crimes committed during the 1975-1979 Khmer Rouge regime that do not meet international

law criteria for genocide, war crimes and crimes against humanity.

A revised version of the law will now have to be formulated and then resubmitted

to Cambodia's National Assembly and Senate for approval before the law is officially

enacted by the King. With the National Assembly currently on recess until April 18,

many observers expect a two to three month delay in the law's passage.

"We're now back at square one," Secretary of State for the Ministry of

Information, Khieu Kanharith, said of the delay.

But Funcinpec National Assembly Legislative Commission member Klok Buddhi says that

given political will, the delay caused by the Constitutional Council's requested

changes could be minimal.

"This can easily be certified as an urgent matter...all we need is three days

notice to call together a quorum of MPs," Buddhi told the Post on March 1.

"This modification is very simple...it would probably only take one hour."

Speedy passage of the bill merited an extraordinary session of the National Assembly

"both in terms of public opinion and international opinion", Buddhi added.

Buddhi says that the Legislative Council is still waiting for the Council of Ministers

to forward the revised version of the law.

Opposition leader Sam Rainsy attributed the delay to a deliberate refusal of King

Sihanouk to give his official blessing to the law.

"The King doesn't want to sign the law because the law is flawed and is politically

motivated rather than for justice," Rainsy said

Both Kanharith and US Ambassador Kent Wiedemann, who has worked actively to bridge

disagreements between the UN and the Cambodian government over the trial law, dismissed

rumors that the King had refused to sign the law.

"The King has told me personally that he's willing to sign [the law],"

Wiedemann said. "I can only take His Royal Majesty at his word."

United Nations spokesman Fred Eckhard expressed disappointment about the latest delay

during a Feb 23 news conference in New York.

"This latest glitch...is primarily a concern in terms of additional time that

will be needed to complete the process," Eckhard said. "It seems now that

we have to start at the bottom of the ladder again...this is a setback from the point

of view of time; it may or may not be [a setback] from the point of view of substance."

Monh Saphan, Chairman of the National Assembly's Legislative Commission, was puzzled

by the Constitutional Council's decision.

"I think that the KR tribunal law can be implemented without any amendment because

the law's Articles 38 and 39 specify that there is no death penalty," Saphan

said, adding that he was concerned that the latest delay might provoke a UN withdrawal

from the process.

Cambodian tribunal taskforce member Om Yentieng said he was "not surprised"

by the delay in the propcess and said that the taskforce was anxious to see the law

passed without further holdups.

Yentieng said that respecting Cambodian legal procedure was a greater priority for

the taskforce than concerns that further delay in the tribunal's formation might

deprive the tribunal of an appearance by star KR defendant Ta Mok.

The prospect of potentially fatal complications caused by a rumored steep decline

in the former KR military chief's health have been raised by both his lawyer Benson

Samay and Prime Minister Hun Sen. The 74 year-old Mok and former S-21 torture chief

Duch are the only former KR leaders currently in detention.

"We do not necessarily think about health [of KR suspects] without thinking

of legal procedures and respect for law " Yentieng said.

"Not only illness, but old age is also our concern. [Elderly people] are like

a lamp without kerosene, [they] can die at any time."

CPP Constitutional Council member Yang Sam struck a considerably more defiant tone

in response to questions about UN concerns regarding the latest delay.

"...Cambodians understand the [tribunal] law to be correct and if the UN opposes

the law, the UN will have made a big mistake," Sam told the Post on Feb 23.

"I believe that Khmers can prepare a tribunal by themselves if the UN withdraws."

The UN's Chief Legal Counsel Hans Corell, who signed the tribunal law Memorandum

of Understanding with Minister of the Council of Ministers Sok An on July 7, 2000,

refused to comment on the most recent delay.

Corell also claimed to be unaware of negotiations to bridge the gap between the UN

and the Cambodian government made public in Corell's Jan 9 letter to Sok An expressing

UN concerns about unilateral changes to the tribunal draft law

On Jan 24 the Cambodian government and Phnom Penh-based diplomats announced that

the concerns outlined in Corell's Jan 9 letter would be resolved in a separate document

rather than by changing the text of the law.

"I am not aware of any negotiations on 'compromise solutions'," Corell

told the Post in an e-mail dated Feb 27. "The Secretary-General determines the

position of the United Nations in this case and I have been mandated by him to conduct

the negotiations."

Visiting United Nations High Commission for Human Rights Special Representative Peter

Leuprecht indicated in a Feb 22 Post interview that the substance of the tribunal

law was a higher priority for the UN than the speed at which it is enacted.

"I'm in close contact with Hans Corell on [the tribunal law controversy],"

Leuprecht said. "What we now have to look into is [whether] the law promulgated

is in line with the agreement of last summer."

Both Leuprecht and Corell declined any specific comment on the tribunal law pending

receipt of official translations.

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