Following Minister of Justice Chem Snguon's interview in the last Phnom Penh Post,

Basil Fernando and Terrance Wickremasinghe argue that Cambodia's "courts"

- by a liberal democracy's definition, at least - can be called no such thing.

Minister of Justice Chem Snguon must be credited for making a very clear statement

on the nature of Cambodia's trial system in his interview with the Phnom Penh Post

(7-20 Nov), in which he said the following words:

"The judge prepares his decision before the trial opens. Before the case opens,

he already has a model. During the trials, issues may be brought up that modify the

judge's decision. If the responses to questioning or testimony are slightly different

than expected, the judge will modify the decision for 10 to 15 minutes at the end

of the trial. If the events during the trial are very different, he must suspend

the trial until a later date. At that time, he will look at additional evidence and

write a decision. Judges always make a map of their decision after looking at the

[pre-trial] evidence."

This is exactly the socialist (Stalinist) concept of trial. Anyone who wants to understand

why the Cambodian 'courts' function the way they do ought to try to understand the

theory of trial applied in these courts. In a liberal democracy, the theory applied

is the very opposite to the one expressed by the Minister of Justice.

Chem Snguon's view used to be expressed in China as "finding Truth from facts".

In the 1930s, it was expressed by socialist lawyers such as Anderi Vyshinsky, Stalin's

famous prosecutor, who is best known for the Moscow trials in which Stalin's rivals

including some of the prominent leaders of the Bolshevik revolution faced the type

of trial represented in the Minister's statement.

In such "trials", the outcome was predetermined before the trial. In the

1980s when Vietnamese experts introduced the current system of courts to Cambodia,

they acted on the basis of their experience and training, which was naturally based

on the socialist law. It is quite well known that Vietnamese experts were trained

in Eastern Europe.

Even in the West, before the liberal democratic notion of a "fair trial"

was developed, there was this model of trial, expressed in the slogan 'First the

sentence, then the trial'.

What is missing in the trial model mentioned by Chem Snguon is the concept of evidence.

In a liberal democracy, the role of the judge arises from the notion of evidence.

To put it generally, this means rules relating to what is admissible as evidence,

how such evidence is to be presented in court, how such evidence can be challenged

by the accused (or by those who represent them - lawyers), how judges decide on the

veracity or otherwise of the evidence presented before him, how judges record the

process of reasoning by which they arrived at the judgment (on the facts and the

law) and similar matters. All these are involved in deciding the guilt or otherwise

of the accused.

When "the judge prepares his decision before the trial opens", the implication

is that the fundamental issue of guilt or innocence is already decided, and what

could slightly change is the actual punishment.

There are three important conclusions flowing from the very honest exposure of

the system made by the Minister of Justice. One is that all trials that have taken

place in Cambodia since the making of the new Constitution (September 1993) and ones

that will take place till this model of trial is changed are mistrials per se. Secondly,

this trial system violates the Cambodian Constitution, as it guarantees a fair trial

to all accused persons. Thirdly, so long as this model continues to be used, Cambodia's

'courts' cannot be termed as courts in the way the word is used in common parlance.

The court structure and hierarchy pre-valent in Cambodia up to the present were created

by the State of Cambodia (SOC) administration in the 1980s and continued up to May

1993. No new court structure was created after the United Nations-supervised elections,

though it was presumed that the 1993 elections would be a watershed in Cambodian

history in introducing democracy to Cambodia. There was no such watershed as far

as the courts were concerned.

One has to emphasize this fact of continuity of the court structure of the old order

as well as its working mechanism in order to understand the nature of the judiciary

that exists at present. Emphasis on this aspect of continuity is significant in view

of the fact that during the period in which the present court structure was formulated

and its judges were appointed (1980-1993), the concepts of the supremacy of Parliament,

the separation of powers and the independence of the judiciary were unknown in Cambodia,

even theoretically.

The significant feature of the courts' structure and hierarchy prior to the arrival

of the United Nations Transitional Authority for Cambodia (UNTAC) was that the structure

of courts formed an organic part of the executive branch of the government; the courts

functioned as an arm of the executive, in which the military played a dominant role.

It has to be noted that in spite of the recognition of the theory of separation of

powers and the independence of the judiciary by the Cambodian Constitution and UNTAC

Transitional Provisions on Criminal Procedure (September 1992) the pre-UNTAC court

structure still continues without any change.

Therefore, at present, courts in Cambodia are not independent from the executive,

which remains dominated by the military. As it stands, Cambodia lacks an independent

judiciary. It is quite appropriate to conclude that in Cambodia there are no courts

and judges as understood in the legal systems in liberal democracies. The issue,

therefore, is not one of a weakened judiciary but one of an absence of a judiciary.

This is quite apparent when one observes how courts function and the extent to which

the methods and practices of judges in dealing with the procedural rules set out

in the UNTAC and SOC laws on criminal procedure are carelessly observed. Deviations

and violations in regard to the provisions of criminal procedure are glaringly visible.

The judges are, as the Minister of Justice confirms, in the habit of writing their

judgments even before the cases are heard. Judges exercise their discretion, not

judicially, but arbitrarily, acting on prejudices, preset opinions, extraneous facts

and circumstances not established through evidence heard in court. This is more evident

in cases where a political element is present and where parties involved in the trial

have political affiliations. What makes the process of adjudication even more arbitrary

is the fact that judges treat the general principles of the law of evidence as alien

and are not sensitive to practices of a free and fair trial. Instead, in judging

cases, they adhere to the executive methodologies as strategies to which they are

addicted.

To make the situation worse, the militarization of the party controlling the fractured

decentralized state machinery has become highly excessive. In this context, in the

provinces, the jurisdiction of "courts" is delegated to other people and

bodies, and very often legal proceedings of offenses connected with drug trafficking

and murder are not even instituted in the "courts."

It is more appropriate to describe Cambodian "judges" as investigators,

arbitrators or administrative officers, rather than judges. The judicial role and

function is as yet an alien concept in Cambodia and under the present circumstances

is likely to remain so for a considerable time. All attempts to re-educate the judges

are of little use while they function as a part of the executive and are so physically

close to the military. Thus, re-education attempts are intrinsically flawed and artificial.

It is illogical and foolishly optimistic to expect an independent judiciary in this

context, especially in a country where civil society is still in its formative stages

and lacks democratic institutions, such as a multi-party system and a vibrant legislative

assembly where public opinion is vigorously reflected.

The problem with the few years of legal reforms in Cambodia since 1993 is that while

the basic communist model of trials and courts has been kept intact, a lot of liberal

democratic jargon has been introduced. There is such talk as presumption of innocence

and proof beyond reasonable doubt, the right of the accused to remain silent and

the like. However, the trial model operates on the basis explained by Chem Snguon,

where the judge prepares the decision before the trial opens.

This is the case of appeals too. In the interview, the Minister of Justice speaks

several times about the right to appeal to the Appeals Court and the Supreme Court.

In fact the Supreme Court of Cambodia does not have any of the functions that a similar

court has in a liberal democracy. Even before 1993 its power was limited to the reading

of case records after trials. The only action it could take after reading a case

record was to request a court to hear a case again. In reality the purpose of reading

the judgment of the courts was to ensure that the courts function in a politically

correct manner, rather than to ensure an appeal process for parties who may want

to show that the original court has arrived at a wrong judgment. Even since 1993

the Supreme Court has not exercised an appellate function.

In any country, and particularly one trying to become a democracy, a strong Supreme

Court with appellate and revisionary and supervisory jurisdiction over the lower

courts is indispensable for a vibrant and independent judiciary to come into existence.

The Supreme Court that exists in Cambodia today is a product of the old order and,

therefore, has inherited all of the characteristic weaknesses and deficiencies of

the past. Theoretically and practically the Supreme Court was part of the executive

branch, and the control and grip that the executive exercises over the Supreme Court

continues to be strong.

The Appeals Court is the new addition to the court system made since 1993. However,

the powers and functioning of this court has been curved within the overall framework

of a communist court system. The manner of functioning is the same: the judge prepares

the decision before the appeal opens. At times, what happens is to try to get the

parties to arrive at some compromise. But the compromise has to be arrived at according

to the parameters set out from outside, which may vary according to the political

significance of the case or the parties in the case.

The failure to enact a Judicature Act with the promulgation of the 1993 Constitution

- to abolish the existing court system and set up a new court hierarchy, with new

judges - was a contributing factor which prevented and hampered the establishment

of a judiciary with the potential to grow into an independent judiciary, even in

a hostile atmosphere.

What is required is a fundamental change to the system of arriving at judgments before

trials or appeals. In the context of Cambodia, this requires a colossal change from

the political-legal culture of the communist era to a liberal democratic legal culture.

To lead such a change, the leaders who initiate the change need to be familiar with

the principles and practices of such a legal system. If the leaders themselves are

sunk neck-deep in the old system, how could they be the initiators and inspirers

of change?

The statements of the Minister of Justice on the Bar Association also reflect old

attitudes. The independence of the legal profession is very much a part of making

a proper trial system possible. If judges make judgments before trial, lawyers have

no real role. Recent attempts to control the Bar Association are a step backward,

and it even takes away the hope of possibility of changes in the future. The function

of a Bar Association is to protect the profession from the state and to maintain

professional standards by mechanisms controlled by the association on its own initiatives.

A Ministry of Justice has no function in this matter. However, under the old system

of communist party control of all professional bodies, the independence of professions

was only a political slogan devoid of any reality. This seems to be what is happening

now, after an initial period when defenders and others engaged in legal aid and training

brought a breath of fresh air and created some hope of change. New restrictions on

funds to maintain these initiatives is a clear signal that the old system wants to

close the door and return to its old tricks.

Ultimately, all attempts taken by ambitious judicial training programs to establish

an independent judiciary with independent judges have been frustrated because of

a lack of any real judges in the first place. The court system, with its "judges"

who are alien to the notions of a free and fair trial and to the general principles

of the law of evidence (and other laws), has continued to function within the same

framework dictated by an unfettered executive.

Consequently, the first step towards democracy in Cambodia must be a fundamental

rupture with the court system that originated in the 1980s and that has continued

up to the present date. The strong local lobby that has sprung up in Cambodia demanding

an independent judiciary, as well as international experts and agencies, would do

well to concentrate their efforts on this single issue without being diverted into

futile ventures, such as election monitoring, judges' training and the like, which

will only be frustrated by the current state of the judiciary. All human rights monitoring

up to now has not borne much fruit due to the lack of a credible judiciary to try

alleged offenders.

- Basil Fernando, a Sri Lankan attorney, was a Senior Human Rights

Officer with the Human Rights Component of UNTAC, and later the first Officer in

Charge and the Chief of the Legal Unit of the Cambodia Office of the UN Center for

Human Rights. Terrence Wickremasinghe is a Sri Lankan attorney who worked

till recently as a Legal Consultant to the Judges' Assistance Program conducted by

the UN Center for Human Rights.