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
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.
CSD pro bono Attorney
Court Watch Project Manager
The Center for Social Development (CSD) bears full responsibility for the opinions
expressed in the Voice of Justice.