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Logo of Phnom Penh Post newspaper Phnom Penh Post - Law banning Khmer Rouge may be invalid

Law banning Khmer Rouge may be invalid

Law banning Khmer Rouge may be invalid

The 1994 law outlawing the Khmer Rouge may be invalid as it may never have been correctly

promulgated, at least not from a legal point of view.

So suggests Dutch attorney-at-law Jan van der Grinten of the law firm Stibbe, Simont,

Monahan, Duhot of Amsterdam in the Netherlands, who is currently volunteering as

a legal adviser to the Documentation Center of Cambodia.

During the past few weeks, van der Grinten has conducted a legal analysis of the

legislative procedures leading up to the promulgation of the 1994 KR law. During

this proces he has unearthed what he believes are errors on the legislators' behalf.

"One could argue that the law didn't come into effect at all," says van

der Grinten.

In early July 1994 when the National Assembly was debating the KR law, King Sihanouk

was in Beijing for a medical check-up. At the time, the King declared that he would

refuse to promulgate the KR law, once the Assembly had adopted it. Article 28 of

the Constitution states that the King must sign all laws adopted by the National

Assembly.

However, the King added that he would not block an attempt by the legislators to

amend Article 28 which, if amended, would allow the President of the National Assembly

to sign and promulgate laws.

The Assembly then proceeded to do so and on July 14 the legislators approved an amendment

to Article 28 in the Constitution that allowed the King to delegate the power to

promulgate laws to the National Assembly President.

Next day, July 15, the National Assembly President promulgated the KR law.

But the law makers were moving a little too fast. Article 93 of the Constitution

states that a law only comes into effect in Phnom Penh 10 days after its promulgation.

In the provinces a law only comes into effect after 20 days.

Only laws that are pronounced "urgent" go into effect immediately after

promulgation. The KR law was stipulated urgent, but the amendment of Article 28 was

not.

The National Assembly President therefore used the amendment to promulgate the KR

law, nine days before the amendment could have come into effect. Simply speaking

the National Assembly President did not yet have the ability to sign laws when he

promulgated the KR law.

Another problem with the amendment of Article 28 was that the King didn't sign it.

Loy Sim Chheang acting as National Assembly President did. He basically signed the

amendment that gave him authority to sign and promulgate amendments and laws. To

legitimize this, the National Assembly seems to have passed a Royal Decree to promulgate

the amendment - although the Assembly does not have power to do this.

Thus the King didn't properly delegate this responsibility to the National Assembly

President at the time, and the amendment may have been rendered invalid.

Together, those prodecural errors make it highly questionable, according to van der

Grinten, whether the KR law ever came into proper effect. The KR may never have been

outlawed and there may never have been a six month amnesty period for defecting rebels

- the provision that last month saw former KR commander Chhouk Rin released after

he was charged with and tried for the kidnapping and murder of three foreign backpackers

in 1994.

But the doubt about the KR law's validity affects more than Chhouk Rin's case. Van

der Grinten points to much bigger cases - for instance against KR top leaders Ieng

Sary, Khieu Samphan or Nuon Chea - where the possible absence of the 1994 KR law

would be felt.

"In case the crime of genocide or crimes against humanity can not be proved,

they would always have had this. Proving membership of the KR is a very light burden

of evidence," says van der Grinten.

The 1994 law does not apply to a possible future KR tribunal that will only deal

with the period 1975-79. But if a genocide case fails at the tribunal, the alleged

perpetrator could always be tried under the 1994 law in an ordinary court.

According to van der Grinten, there is, however, one weak point to the above analysis.

Article 30 of the Constitution states that in the absence of the King, the President

of the National Assembly assumes the duties of Head of State. That could mean that

the Assembly President already had the ability to promulgate laws.

"But it is important to note, that neither the King nor the National Assembly

pointed to Article 30 when the King refused to promulgate the KR law. All parties

supposed that the ability to promulgate laws was the exclusive power of the King.

They therefore agreed that it was necessary to amend Article 28 to enable the National

Assembly President to promulgate laws," points out van der Grinten.

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