Judges at the Extraordinary Chambers in the Courts of Cambodia (ECCC) announced on
March 16 that the bar fees for foreign lawyers proposed by the Cambodian Bar Association
(CBA) were now the last remaining barrier to their approval of the Khmer Rouge Trial's
long-contested draft internal rules.
Concern has been expressed that such fees will affect the quality and quantity of
foreign lawyers willing to work at the trial. But Mark Ellis, executive director
of the International Bar Association (IBA), said the most pressing issue is to determine
the motives behind the CBA demand for such charges.
"What is the purpose of the fees?" he asked the Post by phone from London
on March 20. "It seems, on the face of it, that this is a situation where the
CBA is, once again, trying to control the entire process. This is shortsighted, it
demeans the legal profession in Cambodia, and it hinders the trial's ability to meet
Brad Adams, Asia Director of Human Rights Watch (HRW), said the fee controversy showed
how deep the "rot" is at the CBA.
"Instead of doing all it can to facilitate a proper defense for those accused
at the ECCC, it sees this as an opportunity to make money," he said. "It
is very unlikely that it dreamed up these fees on its own. More likely is that it
is taking instructions from the government as part of the government's continuing
strategy of bargaining and obstruction."
Adams said the standoff over bar fees has made Technicolor long-standing concerns
over the independence of the CBA.
"What there is no doubt about, given the meddling of Hun Sen in the affairs
of the Bar Association in the past and the personalities leading the Bar Association,
is that if the government wanted the Bar Association to drop its demands, it could
make this happen with a phone call," he said. "Unfortunately, this is part
of a pattern of erecting unnecessary hurdles, of which I'm afraid there will be many
more in the future."
Concern has been expressed that the fees the CBA is demanding will affect the quality
of the defense. And it has been suggested the imposition of high bar fees on foreign
lawyers is a violation of the CBA's responsibility to ensure defendants may select
their own defense.
"You need to ensure that foreign lawyers who have expertise in this area are
able, with no barriers, to participate," the IBA's Ellis said. "This is
absolutely consistent with international standards and should be something the CBA
High bar fees may limit the number of foreign lawyers willing to appear before the
ECCC, said Marcel Lemonde, co-investigating judge, on March 20. This would allow
defendants to argue that they were not afforded the right to have counsel of choice,
"The rules cannot be adopted until we are satisfied that they provide for fair,
transparent and open trials, which imply a strong defense for any accused,"
he said. "This has been an issue for nine months and all the judges of the ECCC
want it resolved immediately so that the courts can begin their much-delayed judicial
The CBA only became involved in devising the rules concerning the participation of
foreign lawyers at the insistence of the Cambodian judges, Lemonde said.
"The international judges of the ECCC consider that there is a sound legal basis
enabling the ECCC itself to organize the whole process of registration and discipline
of foreign lawyers appearing before the ECCC, without the assistance of the Bar Association
of the Royal Kingdom of Cambodia," he said. "This is established practice
in other hybrid tribunals."
Ellis said the way the CBA has chosen to use its involvement is troubling.
"I become concerned when I see the CBA raise the issues they have," he
said. "They are continuing to send out statements [that] are all signs of a
Bar Association that is putting up barriers rather than finding ways to support this
very important process of international justice. This is what a domestic bar should
be doing - embracing the idea of accountability and justice, not attempting to impede
Lemonde said the CBA's proposed fees - $500 membership application, $2,000 when selected
to represent a client, plus $200 a month in dues - are considered a "prohibitive
entry cost" by the international judges.
The CBA charges Cambodian lawyers $200 membership application, then $30 in dues every
On March 18, Ky Tech, president of the CBA, called the international judges "feeble"
for allowing the fee issue to interfere with the adoption of the internal rules.
Tech maintains the CBA's fees are reasonable. He told local media that foreign lawyers
earn $1,000 a day, so fees will not affect the quality or quantity of foreign lawyers
willing to work at the court. The ECCC's principle defender, Rupert Skillbeck, rejected
Nay Dina, executive director of the Khmer Institute for Democracy (KID), said it
is difficult to discern the CBA's motivation for requiring the fees.
"Some people speculate that the bar has financial objectives, some say they
may want to delay the court," Dina said. "I honestly don't know why they
impose such high fees. Other international courts don't have such high fees."
The IBA's Ellis said no other international, domestic, or hybrid trial has seen a
national bar association try to control the process of foreign lawyers coming in
through the imposition of fees.
"Look at the Iraqi tribunal," he said. "At no time did the Bar Association
prevent foreign lawyers from participating in the trials. At no time did they put
up barriers, or impose fees. They were not trying to extort money, they were trying
to set the best defense teams possible to prepare and participate in the trials."
The CBA could have used the fee issue as an opportunity to set high standards for
an open trial process that does not restrict foreign lawyers participating and that
is committed to establishing a judicial process that meets international standards,
"I do not think that the CBA at this moment is playing a constructive role in
setting standards that would be accepted and embraced by future courts," he
KID's Dina said one of the perceived benefits of the ECCC was to be its role in setting
higher standards for the Cambodia judicial system.
"The imposition of fees will have a big impact as the ECCC was to be a model
for the Cambodian courts," she said. "We wanted international standards,
a fair trial, and justice for the people, but if foreign lawyers cannot participate
we will not achieve this."
The Bar Association's failure to yield to concerns about its fees has prompted a
reaction from local and international civil society groups.
On March 19, the Cambodian Human Rights Action Committee (CHRAC), a coalition of
23 local NGOs, and the Bangkok-based Asian Forum for Human Rights and Development
(Forum Asia), issued a statement expressing "deep concern."
"We urge the CBA to reconsider its request, in particular the exorbitant, prohibitive
amount [of fees,] in light of the spirit of larger goals of the ECCC," the statement
said. "[We] urge all parties involved not to use the issue of charging fees
for foreign lawyers as an impediment to the justice-seeking process for the millions
of Cambodian people who are waiting anxiously."
Thun Saray, president of Adhoc, and one of the signatories to the statement, said
he was concerned that leading international lawyers who might have worked without
charging fees for victims at the ECCC may no longer wish to as a result of the high
"It is illogical," he said. "You are obstructing the best lawyers
in the world from coming to Cambodia to provide advice for Khmer Rouge victims. You
need to have the fairest trial possible, but if you don't have good international
lawyers to face the government's prosecutors it will not be fair."
Ellis said the most pressing issue that the fees issue has brought to the fore is
the concern over links between the CBA and the government.
"We are not naïve, we are aware of these concerns," he said. "We
will continue to look very carefully at any evidence that CBA is not independent
but is an arm of the Cambodian government."