A SIMMERING disagreement between lawyers over who will have the right - and the funds
- to defend the poor may prevent those most in need from receiving legal protection
in seven weeks' time.
Starting January 1, 1998, non-governmental organizations (NGOs) who offer free legal
representation to poor Cambodians accused of crimes will lose their mandate to do
so, according to top legal officials.
The Kingdom of Cambodia Bar Association is supposed to take over the job but - partly
because its USAID funding has been cut - is having trouble corralling the necessary
resources.
"There will be no one to defend the rights of the poor," Bar Association
president Say Bory said last month. "There will be many problems for the defense
of those who [are] the poorest. The legal defense system will suffer at that time
from the cuts, international aid cuts."
Bory lamented the lack of support the Bar Association has received from the highest
ranks of the government - some of the same government officials who have handed it
the responsibility of protecting the poor.
"The Minister of Justice has given us nothing. Now we only have the generosity
of the Bar Association of Lyon and certain Bar Association members who no longer
have any money to give."
Under a controversial provision of the Bar Association law passed by the National
Assembly last year, only qualified lawyers and association members - which most defenders
are not - can represent clients in court from next year.
The Cambodian Defenders Project and Legal Aid of Cambodia, which have defended hundreds
of poor Cambodians in court, effectively face being put out of business. The NGOs'
supporters have long argued that the Bar Association will not be able to adequately
represent the poor: there are not enough qualified lawyers, and many of them will
go into more profitable fields such as business law, rather than criminal law.
To remedy the situation, Minister of Justice Chem Snguon is calling on such NGOs
to pour their funds into a special Bar Association kitty so it can fulfill its new
role as the "sole defender" of the impoverished.
"I told the president of the Bar Association that [legal defenders' groups]
must respect the law of the bar and aid must be handed over to the bar fund,"
he said Oct 20.
"[The groups] must pay lawyers for people who don't have the means to pay for
lawyers," Snguon said.
"Our idea is not to pay a monthly salary to all lawyers because some defend
the poor and others do not. Our idea is to create a fund for the Bar Association
to defend the poor... With these funds, the bar will pay the lawyers case by case.
It is more logical and less expensive."
A Bar Association annual report issued Oct 16 summarized his sentiments. "All
lawyers who defend the poor must work on behalf of the Bar Association. This is a
legal position currently in force in Cambodia," the report said, according to
an unofficial translation.
"The Cambodia Defenders Project and Legal Aid of Cambodia shall no longer be
entitled to receive funds from international organizations or from the government
of other countries who supply aid to defend the poor," it added.
Justice and Bar Association officials claim that paragraph two of Article 29 of the
law gives them the exclusive right to all funds destined to help defend the poor.
While Article 29 outlines the creation of a special association fund to pay lawyers
who defend the poor, it does not appear to mention any exclusive rights to the job,
according to defenders' groups.
Paragraph two of the article states: "The special account may receive donations
or aid from private or international organizations, or foreign governments to provide
for the defense of poor people."
Defenders said it is a good idea for such a fund to exist, but dispute that the bar
will have the right to unilaterally lay claim to NGO funds or resources. They also
said it would be impossible to hand funds they receive from donors over to the association
or the government.
"[They] want to centralize all funds under the bar. There is no way we can do
that," said Sok Sam Oeun, director of the Cambodian Defenders Project.
He also called it "strange" that the bar and the Minister of Justice would
try to prevent NGOs from giving free legal help to the poor, but he said he would
have to learn more about the proposal.
"I will talk with many people at the bar. I will look into Say Bory's proposal
on how to hire bar lawyers. [But] that does not mean all lawyers and NGOs will work
under him."
To encourage defenders' groups to hand over their funds, minister Chem Snguon has
made it clear that he will not balk at closing them down if they go against the spirit
of the law.
No lawyers will be permitted to work for defenders' organizations because they must
all work directly for the Bar Association itself, Snguon said, adding that the NGOs
may continue to exist if they work purely as an organizational structure to hire
Bar Association lawyers on individual cases.
Meanwhile, Say Bory - who has supported the association's sole right to represent
the poor - complained that it does not have the resources to do that.
If defenders do not put their money into the association's coffers, Bory lamented,
the poor will be left adrift.
"The population is going to suffer starting in January, 1998. The government
asks too much. They ask a lot, but they do not give us resources. Without resources,
what can we do?"
USAID aid cuts sparked by the ouster of Prince Norodom Ranariddh in July have aggravated
the situation, Bory said.
About $25 million, or two-thirds, of the USAID's aid to Cambodia will be terminated
by the end of the year, according to the US Embassy.
The embassy would not say how much money would be lost from legal education and support
programs, but at least three such projects are affected.
The Cambodia Court Training Project, the University of San Francisco legal program
in Phnom Penh and the American Bar Association - which provides support, including
office space, to the Cambodian Bar Association - are all having their USAID funding
discontinued.
Say Bory lamented the cuts, especially to the ABA, and said his association faces
increasing economic problems.
"We are in trouble," he said, explaining that the Bar Association will
be homeless when the ABA building closes in December.
"[Then-First Prime Minister Prince Norodom] Ranariddh and Hun Sen promised to
furnish me with an office, but until now, nothing."
Bory called the aid cuts "the dissolution of two years of work" and a "a
monumental error" on the part of the US government because "we are a part
of the organizations that defend human rights".
While the Bar Association faces economic difficulties, the two principal defenders
projects continue to receive funds. The Cambodia Defenders Project (CDP) appears
to be the sole law-based program spared by the USAID cuts, while Legal Aid of Cambodia
(LAC) is funded mostly from sources in the Netherlands.
Say Bory complained that USAID is applying a double standard by cutting off assistance
to the Bar Association, while sparing the CDP, when they are attempting to do the
same job.
He acknowledged that association lawyers have worked on only 68 cases since January
- a far cry from the thousand-plus cases defended by the defender groups - but the
cuts are not going to help the bar to grow into its new role, he said.
Sok Sam Oeun, of the CDP, said his organization was unaffected by USAID cuts because
it is a human rights organization that does not work directly with the government.
He pointed out that some Bar Association internal decisions can be appealed to the
prosecutor of the Appellate Court, so it is arguable that the bar is linked to the
government.
"They are not part of the government, but neither are we," replied Say
Bory, adding that he would ask USAID to reconsider their decision.
Bory, who left Cambodia Oct 18 for a trip abroad, partly to try to raise money from
other donors, said he was hopeful of new funding.
"If there is an improvement in the political climate, if the National Assembly
adopts a satisfactory electoral and political parties laws, that could, I think,
have an affect on the position of donors."
But unnecessary damage had already been done to the association's work, he said.
"It is a serious error not to fund the Bar Association of the Kingdom of Cambodia.
I, if you know me well, am independent. If I was bought off by someone in the government,
I would have a building right away," he said.
"We can cut military aid, but not humanitarian. Above all, not the judiciary.
If they want to balance power [in the government]. I don't know why they don't take
that into account."
