The 1994 law outlawing the Khmer Rouge may be invalid as it may never have been correctly
promulgated, at least not from a legal point of view.
So suggests Dutch attorney-at-law Jan van der Grinten of the law firm Stibbe, Simont,
Monahan, Duhot of Amsterdam in the Netherlands, who is currently volunteering as
a legal adviser to the Documentation Center of Cambodia.
During the past few weeks, van der Grinten has conducted a legal analysis of the
legislative procedures leading up to the promulgation of the 1994 KR law. During
this proces he has unearthed what he believes are errors on the legislators' behalf.
"One could argue that the law didn't come into effect at all," says van
In early July 1994 when the National Assembly was debating the KR law, King Sihanouk
was in Beijing for a medical check-up. At the time, the King declared that he would
refuse to promulgate the KR law, once the Assembly had adopted it. Article 28 of
the Constitution states that the King must sign all laws adopted by the National
However, the King added that he would not block an attempt by the legislators to
amend Article 28 which, if amended, would allow the President of the National Assembly
to sign and promulgate laws.
The Assembly then proceeded to do so and on July 14 the legislators approved an amendment
to Article 28 in the Constitution that allowed the King to delegate the power to
promulgate laws to the National Assembly President.
Next day, July 15, the National Assembly President promulgated the KR law.
But the law makers were moving a little too fast. Article 93 of the Constitution
states that a law only comes into effect in Phnom Penh 10 days after its promulgation.
In the provinces a law only comes into effect after 20 days.
Only laws that are pronounced "urgent" go into effect immediately after
promulgation. The KR law was stipulated urgent, but the amendment of Article 28 was
The National Assembly President therefore used the amendment to promulgate the KR
law, nine days before the amendment could have come into effect. Simply speaking
the National Assembly President did not yet have the ability to sign laws when he
promulgated the KR law.
Another problem with the amendment of Article 28 was that the King didn't sign it.
Loy Sim Chheang acting as National Assembly President did. He basically signed the
amendment that gave him authority to sign and promulgate amendments and laws. To
legitimize this, the National Assembly seems to have passed a Royal Decree to promulgate
the amendment - although the Assembly does not have power to do this.
Thus the King didn't properly delegate this responsibility to the National Assembly
President at the time, and the amendment may have been rendered invalid.
Together, those prodecural errors make it highly questionable, according to van der
Grinten, whether the KR law ever came into proper effect. The KR may never have been
outlawed and there may never have been a six month amnesty period for defecting rebels
- the provision that last month saw former KR commander Chhouk Rin released after
he was charged with and tried for the kidnapping and murder of three foreign backpackers
But the doubt about the KR law's validity affects more than Chhouk Rin's case. Van
der Grinten points to much bigger cases - for instance against KR top leaders Ieng
Sary, Khieu Samphan or Nuon Chea - where the possible absence of the 1994 KR law
would be felt.
"In case the crime of genocide or crimes against humanity can not be proved,
they would always have had this. Proving membership of the KR is a very light burden
of evidence," says van der Grinten.
The 1994 law does not apply to a possible future KR tribunal that will only deal
with the period 1975-79. But if a genocide case fails at the tribunal, the alleged
perpetrator could always be tried under the 1994 law in an ordinary court.
According to van der Grinten, there is, however, one weak point to the above analysis.
Article 30 of the Constitution states that in the absence of the King, the President
of the National Assembly assumes the duties of Head of State. That could mean that
the Assembly President already had the ability to promulgate laws.
"But it is important to note, that neither the King nor the National Assembly
pointed to Article 30 when the King refused to promulgate the KR law. All parties
supposed that the ability to promulgate laws was the exclusive power of the King.
They therefore agreed that it was necessary to amend Article 28 to enable the National
Assembly President to promulgate laws," points out van der Grinten.