Logo of Phnom Penh Post newspaper Phnom Penh Post - Equality of Arms: Prosecutor vs. defendant

Equality of Arms: Prosecutor vs. defendant

Equality of Arms: Prosecutor vs. defendant

One of the issues holding up the Khmer Rouge Trial (KRT) is the question of how to

staff the court. Some describe this issue as being one of ensuring "equality

of arms." In legal terms, it means that the prosecution and defense in a criminal

trial have equal status. In simple terms, "equality of arms" means nothing

more than a fair fight.

So far, there have been differences of opinion between the Defense Support Section

of the Extraordinary Chambers in the Courts of Cambodia ("ECCC") and the

Cambodian Bar Association about how much foreign involvement is necessary. The issue

is presented as if Cambodians must choose between Cambodian "sovereignty"

(or applying national laws) and "international" standards of justice. This

is a false choice. Both Cambodian and international laws recognize the concept of

"equality of arms".

First, it is important to contextualize the phrase "equality of arms".

In any criminal trial the accused is not pitted against another individual, but against

the State. This is different from a civil case, where a defendant is accused by a

non-State plaintiff, and monetary damages are sought. In a criminal case the State

goes after unlawful behavior and seeks punishment, because crimes are considered

to be acts committed not only against an individual, but against society in general.

Content image - Phnom Penh Post

Thus, in criminal proceedings, the accused is prosecuted by the State, and the

great disparity between the two parties in terms of power and resources obliges the

State to ensure that the rights of the defendant are protected. Judges must ensure

that everyone is treated equally. This is the key to protecting the individual against

potential abuse by the prosecution.

Ultimately, defense rights benefit everyone: first, by providing a framework of protection

for the individual vis-à-vis the State, and second, by assuring the legitimacy

of court decisions. Thus, the right to a fair trial can be seen as a vital aspect

of any democracy.

The Cambodian Constitution explicitly provides that the State "shall recognize

and respect human rights as stipulated in the ... covenants and conventions related

to human rights..."

The International Convention on Civil and Political Rights ("ICCPR") is

one of the most important international instruments that codifies civil and human

rights, including fair trial rights, and has been adopted by most States in the world.

Cambodia ratified the ICCPR on May 26, 1992. Accordingly, the ICCPR is part of the

law in Cambodia, and the Kingdom is obliged to uphold and apply the protections set

forth in its provisions.

In the ICCPR the right to "equality of arms" is enshrined. This right consists

of four fundamental fair trial principles: (i) all parties, including the defendant,

must have an equal opportunity to present evidence and arguments before the court;

(ii) no party to the proceedings should benefit from a substantial advantage over

the other; (iii) all persons must have access to fair and effective judicial remedies;

(iv) everyone is entitled to a defense counsel of his own choosing (if he can pay),

and even if he cannot pay, the defendant has the right to experienced, competent

and effective defense counsel.

Cambodian law must ensure equality of arms by investing the defense counsel and the

prosecutor with equal status. Both parties must have an equal opportunity to present

evidence and arguments before the court. And neither party should benefit from a

substantial advantage over the other. In Cambodia, the defendant must be present

to defend the charges against him, and is entitled to legal counsel of his choice

to help defend against those charges.

The defendant also has the right to experienced, competent and effective defense

counsel.

In Cambodian courts, judges seldom acknowledge the power of the State over the defendant.

On the contrary, in the majority of cases observed by the CSD Court Watch Project,

the courts simply compound the prejudice to the defendants, e.g., by presuming guilt

rather than innocence.

Additionally, in practice, there is a grave lack of adequately trained defense lawyers.

The prohibition against international lawyers from directly representing defendants

in the upcoming KRT would significantly influence the ability of the ECCC to meet

international standards in two ways.

First, there are currently both Khmer and international prosecutors but only Cambodian

defense counsel. Second, failure to allow full participation by international defense

counsel will put this fair trial element at risk. The accused has the right to choose

competent counsel. It is questionable whether Cambodian counsel can meet these requirements

today in light of their inexperience in trying crimes against humanity.

Thus, the choice is not whether there is a national standard of justice; there isn't.

Cambodia has already joined other nations in adopting "international" standards

of justice. The word "international" is incorrectly used to mean a different

level of standard of justice than that recognized by Cambodia; "international"

if we are to be coherent should only be used in the sense of "universal"

(i.e., that many countries have agreed on basic fair trial rights). It is not a vertical

comparison of standards (Cambodian vs. international) but a horizontal agreement

of Cambodia with other nations on legal principles. In this regard, "international"

standard of justice is also the national Cambodian-recognized standard. Hence, the

right to "equality of arms" is one of the universal fair trial rights that

Cambodia recognizes as applicable here, even if it is not always implemented in practice.

Theary C. Seng,

Executive Director

MOST VIEWED

  • PM to vet NY holiday dates

    The Ministry of Economy and Finance submitted a letter to Prime Minister Hun Sen asking him to formally set a five-day national holiday from August 17-21 to make up for the Khmer New Year holiday in April that was postponed. Finance minister Aun Pornmoniroth sent

  • Cambodia rejects UN rights claim

    Cambodia's Permanent Mission to the UN Office in Geneva on Friday hit back at David Kaye, the UN special rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression after he raised concerns over the repression of free speech and

  • Snaring may spawn diseases

    The World Wildlife Fund (WWF) has warned that snaring of animals has become a crisis that poses a serious risk to wildlife in Southeast Asia and could spawn the transmission of zoonotic diseases to humans. Its July 9 report entitled Silence of the Snares: Southeast Asia’

  • Ex-party leader, gov’t critic named as secretary of state

    A former political party leader known for being critical of the government has been appointed secretary of state at the Ministry of Rural Development, a royal decree dated July 9 said. Sourn Serey Ratha, the former president of the Khmer Power Party (KPP), told The Post

  • Residence cards set for over 80,000 immigrants

    The Ministry of Interior plans to grant residence cards to more than 80,000 immigrants to better keep track of them. The ministry announced the plan on July 10, following the results of an immigration census. “An inter-ministerial committee and many operational working groups have been set up

  • Kingdom produces PPE gear

    Medical supplies from Cambodia have been donated to member countries of the Asian Development Bank (ADB) to assist in the fight against Covid-19, said an ADB report published on July 9. The report stated that the supplies were donated as a response to global efforts to

  • Kingdom, US vow stronger ties

    At an academic forum on Saturday to celebrate 70 years of Cambodia-US diplomatic ties, Cambodian researchers and officials expressed hope of encouraging US investments and for that country to deepen and improve its bilateral relations. Held at the Royal Academy of Cambodia, it reviewed the past 70

  • Fifteen Cambodians from Saudi get Covid-19

    The Ministry of Health on Sunday confirmed 15 more imported cases of Covid. The 15 men ‒ all Cambodian aged 21 to 33 ‒ arrived from Saudi Arabia on Friday via a connecting flight in Malaysia. They were travelling with 79 other passengers, three of them women. The ministry said 80 of the

  • Ministry requests school opening

    The Ministry of Education, Youth and Sport on Thursday said it would request a decision from Prime Minister Hun Sen to allow a small number of schools to reopen next month. Ministry spokesman Ros Soveacha said if the request is granted, higher-standard schools will reopen

  • Kingdom eyes India FTA, China deal set for August

    Cambodia is studying the possibility of establishing a bilateral free trade agreement (FTA) with India to open a new market with the second-largest regional economy. This comes as an FTA with China is scheduled to be signed next month while similar negotiations with South Korea