Final approval of the Khmer Rouge tribunal law has been delayed yet again due to
Cambodia's Constitutional Council's insistence that sections of the law that appear
to mandate the death penalty be removed
The delay was announced just prior to the Feb 21 departure of King Norodom Sihanouk
for routine medical treatment in Beijing.
The King had been widely expected to sign the tribunal law before he left, but departed
from Cambodia without making any comment about the matter.
The Constitutional Council is demanding that a clause be inserted in the tribunal
law's Article 3 specifying that the death penalty be prohibited as a possible punishment.
The Council's objections are based on Article 3's references to Cambodia's 1956 penal
code, which mandates the death penalty for crimes such as murder.
The law's 1956 penal code references are designed to extend the tribunal's jurisdiction
to crimes committed during the 1975-1979 Khmer Rouge regime that do not meet international
law criteria for genocide, war crimes and crimes against humanity.
A revised version of the law will now have to be formulated and then resubmitted
to Cambodia's National Assembly and Senate for approval before the law is officially
enacted by the King. With the National Assembly currently on recess until April 18,
many observers expect a two to three month delay in the law's passage.
"We're now back at square one," Secretary of State for the Ministry of
Information, Khieu Kanharith, said of the delay.
But Funcinpec National Assembly Legislative Commission member Klok Buddhi says that
given political will, the delay caused by the Constitutional Council's requested
changes could be minimal.
"This can easily be certified as an urgent matter...all we need is three days
notice to call together a quorum of MPs," Buddhi told the Post on March 1.
"This modification is very simple...it would probably only take one hour."
Speedy passage of the bill merited an extraordinary session of the National Assembly
"both in terms of public opinion and international opinion", Buddhi added.
Buddhi says that the Legislative Council is still waiting for the Council of Ministers
to forward the revised version of the law.
Opposition leader Sam Rainsy attributed the delay to a deliberate refusal of King
Sihanouk to give his official blessing to the law.
"The King doesn't want to sign the law because the law is flawed and is politically
motivated rather than for justice," Rainsy said
Both Kanharith and US Ambassador Kent Wiedemann, who has worked actively to bridge
disagreements between the UN and the Cambodian government over the trial law, dismissed
rumors that the King had refused to sign the law.
"The King has told me personally that he's willing to sign [the law],"
Wiedemann said. "I can only take His Royal Majesty at his word."
United Nations spokesman Fred Eckhard expressed disappointment about the latest delay
during a Feb 23 news conference in New York.
"This latest glitch...is primarily a concern in terms of additional time that
will be needed to complete the process," Eckhard said. "It seems now that
we have to start at the bottom of the ladder again...this is a setback from the point
of view of time; it may or may not be [a setback] from the point of view of substance."
Monh Saphan, Chairman of the National Assembly's Legislative Commission, was puzzled
by the Constitutional Council's decision.
"I think that the KR tribunal law can be implemented without any amendment because
the law's Articles 38 and 39 specify that there is no death penalty," Saphan
said, adding that he was concerned that the latest delay might provoke a UN withdrawal
from the process.
Cambodian tribunal taskforce member Om Yentieng said he was "not surprised"
by the delay in the propcess and said that the taskforce was anxious to see the law
passed without further holdups.
Yentieng said that respecting Cambodian legal procedure was a greater priority for
the taskforce than concerns that further delay in the tribunal's formation might
deprive the tribunal of an appearance by star KR defendant Ta Mok.
The prospect of potentially fatal complications caused by a rumored steep decline
in the former KR military chief's health have been raised by both his lawyer Benson
Samay and Prime Minister Hun Sen. The 74 year-old Mok and former S-21 torture chief
Duch are the only former KR leaders currently in detention.
"We do not necessarily think about health [of KR suspects] without thinking
of legal procedures and respect for law " Yentieng said.
"Not only illness, but old age is also our concern. [Elderly people] are like
a lamp without kerosene, [they] can die at any time."
CPP Constitutional Council member Yang Sam struck a considerably more defiant tone
in response to questions about UN concerns regarding the latest delay.
"...Cambodians understand the [tribunal] law to be correct and if the UN opposes
the law, the UN will have made a big mistake," Sam told the Post on Feb 23.
"I believe that Khmers can prepare a tribunal by themselves if the UN withdraws."
The UN's Chief Legal Counsel Hans Corell, who signed the tribunal law Memorandum
of Understanding with Minister of the Council of Ministers Sok An on July 7, 2000,
refused to comment on the most recent delay.
Corell also claimed to be unaware of negotiations to bridge the gap between the UN
and the Cambodian government made public in Corell's Jan 9 letter to Sok An expressing
UN concerns about unilateral changes to the tribunal draft law
On Jan 24 the Cambodian government and Phnom Penh-based diplomats announced that
the concerns outlined in Corell's Jan 9 letter would be resolved in a separate document
rather than by changing the text of the law.
"I am not aware of any negotiations on 'compromise solutions'," Corell
told the Post in an e-mail dated Feb 27. "The Secretary-General determines the
position of the United Nations in this case and I have been mandated by him to conduct
Visiting United Nations High Commission for Human Rights Special Representative Peter
Leuprecht indicated in a Feb 22 Post interview that the substance of the tribunal
law was a higher priority for the UN than the speed at which it is enacted.
"I'm in close contact with Hans Corell on [the tribunal law controversy],"
Leuprecht said. "What we now have to look into is [whether] the law promulgated
is in line with the agreement of last summer."
Both Leuprecht and Corell declined any specific comment on the tribunal law pending
receipt of official translations.