Public Scrutiny and Participation in the ECCC

Everyone is waiting for the drama of the Khmer Rouge Tribunal ("KRT") to

begin. But what many people do not realize is that, in many ways, it has begun.

As the judges wrangle over the internal rules and observers worry about the integrity

of the court, the prosecutors are already deep in the process of gathering the evidence

to make their case, and getting ready to forward their files or dossiers to the investigating

judges. Although the formal legal process will not actually begin until the internal

rules governing the KRT are finalized, the pre-trial stage is already well under

way. And because the pre-trial period is the heart of the civil law process on which

Cambodian law is based, it is imperative that we understand that there be public

scrutiny of this period.

The Heart of the Matter: the Pre-Trial Period

Everyone has been looking forward to seeing the most senior and most responsible

leaders of the Khmer Rouge ("KR") regime publicly tried for their past

crimes. However, the public trial is bound to surprise some people when it eventually

happens. Anyone expecting the Hollywood-like drama of a senior member of the KR being

cross-examined by a quick-witted lawyer is likely to be disappointed. This is because

the Cambodian justice system follows the French civil law model. In this system,

the pre-trial stage is the lengthiest period of the proceedings, where information

is gathered, witnesses are interrogated by the investigating judges, and credibility

is determined. What happens at this stage dictates who will be charged, what crimes

they will be charged with, and what recommendations the investigating judges will

make to the trial judges. Eventually, the accused person(s) will stand before a panel

of Khmer and foreign judges, and answer the well-documented charges against them.

As we wait in the interim, some of the most important dramas and decisions of this

historical trial are taking and will take place behind closed doors.

Civil Law vs Common Law

It is not surprising that legal observers in Cambodia sometimes disagree about the

kinds of laws that would best serve the KRT and the Cambodian people. This disagreement

is really about a choice between the world's two major legal systems: civil law (or

inquisitorial system, prevalent in Europe), and common law (adversarial system, used

in the United Kingdom and its former colonies, eg, the United States). Not all civil

and common law systems are the same, but they tend to have general principles in

common.

Civil law advocates believe that their system is the most efficient and fair,

because it puts its trust in a neutral investigating judge whose job is not to find

the guilt of the suspect, but to find the truth before the public trial begins. To

find this elusive truth, the judge plays the role of interrogator, investigator,

and decision-maker. The investigating judge evaluates the dossier submitted by the

prosecutor, and directly questions parties and witnesses. Both the judges and the

prosecutors represent the interests of the State, and work closely together, but

it is the investigating judge who decides whether the prosecution has provided enough

evidence against the accused for a case to go to trial. If s/he feels a prosecution

would not be worthwhile under the circumstances, s/he has broad discretion to dismiss

the case. Thus, the strength of this system lies in the power of the investigating

judge, who is ideally neutral and investigates evidence without any bias.

Common law advocates do not place so much trust in the benevolence of the State.

Because the adversarial system questions all "truths" that emerge from

behind closed doors, it takes the interrogating and investigating roles away from

the judge, and gives them to the parties themselves, to debate in open court. There

is an emphasis on openness and equality of arms; the public is able to observe the

decision-making process as it happens. There is no investigating judge; the pre-trial

period is short.

The public trial is the heart of the process. The parties are much more active, challenging

the sufficiency of the evidence and cross-examining witnesses to test their credibility.

By making the parties equal in status and by ensuring the evidence is legitimate

and gathered in a legal way, the courts can help keep the police and the prosecution

honest. The facts and law are debated in public, and the ultimate decision is usually

made by a jury selected randomly from the community. The jury decides on the facts

of the case, and the judge rules on the law. The judge merely acts as a referee,

and has the power to impose the sentence.

Unfortunately, neither system is perfect. The civil law system is faulted for neglecting

a defendant's rights, while the common law system is criticized for putting a defendant's

rights above the truth. The inquisitorial system is praised for its efficiency, while

the adversarial system is criticized for its tendency to draw out the length of the

trial by invoking procedural technicalities.

Both systems work best within a structure of true checks and balances, where the

judiciary is independent from the influence of State leadership. If judges are given

unfettered discretion and are in collusion with the State with no external forces

to counter-balance that power, the defendant faces extreme vulnerability and potential

abuse of State power. While the civil law system may work well in a country like

France with real consequences for biased judges, countries that lack such safeguards

may do well to follow the adversarial system, which recognizes the imbalances inherent

in a government prosecution and opens its evidence and legal process to scrutiny.

Pre-Trial Process: The Need for Public Scrutiny

The KRT was established for Cambodians for a variety of well-considered reasons.

Not only was it established to bring the perpetrators to justice, but also so that

justice could be seen to be done. It was established to set the historical record

straight, to stimulate a national discussion, and to begin a long-overdue process

of national reconciliation. It is difficult to achieve these goals if the important

pre-trial process is conducted completely in private.

Some mechanisms are in place to inform the Cambodian public about the progress of

the KRT, such as its public affairs office and a number of NGOs' outreach efforts,

but it is likely that the bulk of the pre-trial process will take place in private.

All of these issues are more important than usual because this trial is more important

than usual. This is a trial about past atrocities, brought on behalf of the Cambodian

people - so the people have both the need and the right to watch the trial process

as it unfolds. Because a case in the civil law system unfolds almost completely before

the public trial begins, it is imperative that the KRT institute some kind of formal

public communication at the pre-trial stage. Whether this is through a special public

hearing of witness testimony or a statement by the investigating judges summarizing

the evidence, the pre-trial process in this momentous case must be transparent and

open to public scrutiny.

Public Participation: the Involvement of Civil Parties

One significant way the public can be involved in the KRT from beginning to end is

as a partie civile or "civil party" to the case. This idea, provided for

in Cambodian law and squarely rooted in French civil law, allows a victim to participate

in criminal proceedings as a civil complainant and to claim damages from an accused.

A victim enters the process by filing a complaint with the prosecutor, and if it

is relevant to the charges, a victim may potentially have similar rights to that

of the defendant, such as access to the dossier and opportunities to be involved

in the investigative process.

Although it is generally agreed that it would be impracticable for the KRT to be

used as a forum for reparation claims, the provisions permitting a civil party to

be closely involved with the process are currently being considered. This is potentially

a major breakthrough for victim involvement in the international criminal trials.

Reconciling the Laws in Cambodia

Cambodian law is a patchwork quilt of different traditions, including aspects of

the adversarial and inquisitorial systems. Current laws have been influenced by the

various international legal scholars who rotate through Phnom Penh and NGOs, offering

funding and advice. Although the French relationship with Cambodia has the deepest

roots, the foundations of Cambodia's relatively recent democracy and much of the

content of its legal rights derive from common law norms found in the Cambodian Constitution

and international instruments adopted by Cambodia, ie, the International Covenant

of Civil and Political Rights.

Cambodia's inquisitorial legal system provides clear benefits to the administration

of justice, such as efficiency, truth-seeking, and the potential for KR victims to

be involved with the KRT process as civil parties. However, it should also consider

making its secret pre-trial process more adversarial and more open to public scrutiny.

In recognition of the important values the KRT seeks to uphold, it would do well

to incorporate the best aspects of both legal traditions.

Holly Telerant

CSD pro bono Attorney

Pen Rany

Court Watch Project Manager

The Center for Social Development (CSD) bears full responsibility for the opinions

expressed in the Voice of Justice.