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Enlisting the law to lead the attack

Enlisting the law to lead the attack

Second Prime Minister Hun Sen sent tanks to serve a well-drafted indictment. Mike

Fowler seeks a legal opinion - and lawyers say the courtroom would have been

a better battlefield.

THE CPP based its two days of military fury on the law, launching attacks on Funcinpec

headquarters, military sites and officials' houses with a statement presented by

Second Prime Minister Hun Sen that read like a prosecutor's carefully prepared legal


And in the aftermath of the violent weekend that left parts of Phnom Penh - and the

country's international reputation - ravaged, the CPP released a lengthy and documented

White Paper that laid the blame at Funcinpec's feet. It detailed a "campaign

of provocation" aimed at "creating a crisis in which the Second Prime Minister

would make a fatal mistake which would then benefit [First Prime Minister] Prince


"For some, the events of 4-5 July ... were shocking," the paper read. "But

for careful observers of the Cambodian political situation, they were the predictable

culmination of more than a year-old build-up of tensions."

The White Paper echoed Hun Sen's TV statement, alleging a series of provocations

including "a secret military build-up" by Ranariddh, illegal importation

of weapons, unsanctioned troop movements and - "the most dangerous tactic of

all" - unilateral negotiations in Anlong Veng intended "to forge a military

and political alliance with the last Khmer Rouge hardliners at the very time that

those hardliners remained publicly dedicated to the destruction of one-half of the


"This last action," the paper read, "was tantamount to announcing

that the coalition government was being terminated. The military build-up and the

alliance with the Khmer Rouge was virtually a declaration of war."

Both statements bore the marks of careful lawyering, and international legal analysts

said the White Paper provided evidence that might have supported many of the charges

made by Hun Sen - if the CPP had chosen to take them to court rather than the battlefield.

The analysts were critical that the indictment had been served with AK47s, B40s and


"You don't take military action, you take legal action," one lawyer said.

"You follow the procedures, you get warrants and you serve them, and then you

have trials."

"Give him the benefit of the doubt and agree that bringing Khmer Rouge into

Phnom Penh could destabilize the government," said another. "You can sympathize

with his concerns - although he has done the same things, importing Khmer Rouge.

But if you wish to give him the benefit of the doubt that his concerns for stability

and viability of the nation led him to do what he did, he could have done so in a

non-violent fashion.

"He could have proved to the world that he stands for the law by applying the

law to the circumstances."

In his TV statement Saturday morning, shortly before the bullets began to fly, Hun

Sen said that was exactly his intention.

"I would like to solemnly affirm," he said, "that this is not a dispute

between political parties but it is an act to enforce the law...."

Seated, wearing pressed camouflage fatigues and speaking soberly, with none of the

flamboyance that marks his political speeches, Hun Sen delivered a statement containing

at least 18 references to the law or illegality.

Count by count, the statement alleged actions by Ranariddh and other Funcinpec officials

that, Hun Sen charged, were "illegal [violations] which are dangerous to the

nation and people...."

With evidence - provided as appendixes to the White Paper - many of the charges might

have been proved in court, analysts said.

Included (with CPP-provided translations) were a May 16 memo from Ranariddh's deputy

chief Kong Vibol to the finance minister titled, "Request to import a container

of spare parts without paying tax" and another, dated 12 May and signed by Ranariddh,

to the director of the Sihanoukville port: "Request for giving a container of

spare part[s] to my bodyguard commander General Thack Suong." Both supported

the charge that Ranariddh falsified documents to import a shipment of weapons in

May, analysts said.

"Clearly it seems that Ranariddh probably violated the law," one lawyer


Other documents with the White Paper included June 21 orders from Funcinpec officials,

on party stationery, to Funcinpec Gen. Nhek Bun Chhay ordering 690 troops to be moved

from Banteay Meanchey to Kompong Speu province. An attached order signed by both

Ranariddh and Hun Sen as co-commanders-in-chief on Feb. 26, 1997, requires all troop

movements to have orders "from the competent commander" and provides that

a movement without such orders "is considered as a violation of law."

Negotiating with the Khmer Rouge without the consent of the other prime minister

could be a crime, the analysts said. The law outlawing the "Democratic Kampuchea

Group", passed in July 1994, defines the Khmer Rouge and prohibits them from

conducting secession, acting to destroy the government, or provoking citizens to

take up weapons against public authorities.

The law has no prohibitions against talking with the rebels, but lawyers said a case

could be made using UNTAC criminal code provisions in concert with the KR law.

"There is no law that prohibits negotiating with the Khmer Rouge," said

a defense lawyer. But the UNTAC complicity provision against "assisting"

in the commission of a crime, or the organized crime provision against forming an

association to commit a crime could both make crimes of bringing "unrepentant"

Khmer Rouge into Phnom Penh to fight, lawyers said.

One analyst pointed out that CPP led the negotiations with Ieng Sary and Keo Pong

last year, and that many former KR had been invited into the CPP tent. Going after

Funcinpec negotiators while ignoring those in the CPP, he charged, was selective


"It's completely inane for the CPP to make this charge because they cut the

deals with Ieng Sary and Keo Pong. They're no angels. Why aren't they going into

CPP houses as well?" he said.

The White Paper distinguished between the recent Funcinpec negotiations with the

Anlong Veng KR and the earlier negotiations, which were conducted, it said, under

"a unified government policy" in which defectors "pledged their allegiance

to the central government and actually engaged in armed clashes with their former


With evidence and the apparently careful legal preparation, the lawyers wondered,

why did the CPP go to war rather than court?

The lawyers said that in moving militarily against his co-Prime Minister and other

Funcinpec officials Hun Sen ignored provisions of the Constitution outlining how

criminal charges against members of the Royal Government shall be brought, and how

action to oust them shall be taken.

"Hun Sen should have gone to the National Assembly, or the standing committee,

and if charges were brought, they should have been taken to the Department of Public

Prosecution, which would take them to the court," said a lawyer.

The Constitution makes clear that members of the Royal Government - all officials

from the prime ministers down to secretaries of state - can be punished for "crimes

and misdemeanors" committed in the course of duty.

Article 107 lays out the procedure for bringing "serious charges" against

government members - it must be done by the Assembly, on a majority vote (or by the

standing committee if the Assembly is not in session). In the case of Ranariddh,

the Assembly would have to strip him of his immunity, and then take the charge to

the office of the prosecutor, the only body Constitutionally authorized to file a

formal criminal complaint with the courts.

"Assuming everything Hun Sen said about Ranariddh is 100 percent absolutely

true and provable in court," one lawyer said, "he [Hun Sen] is still not

above the law. He still needs to follow the procedures set by the Constitution."

The Constitution and laws also provide ways to remove a prime minister without court

action, analysts noted.

Under Article 98 of the Constitution, the Assembly can dismiss any member of the

Royal Government, on a two-thirds vote. Under the law organizing the council of ministers,

a prime minister can ask the Assembly to request that the King remove any member

of the Royal Government by Royal Decree.

"If Hun Sen had decided to dismiss Ranariddh, he clearly has the power to put

the motion before the National Assembly," one analyst said. "Under the

Constitution such an action can only be taken by the National Assembly."

Added another: "Hun Sen has stripped Ranariddh of his position without means

of law."

In his statement, Hun Sen said Ranariddh and his forces were "extremists",

adding that it was his duty to "do everything possible to defend peace, stability,

national reconciliation, democracy and development."

"Hun Sen said he is duty-bound to do everything possible," said one analyst.

"How about following the law?"


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