I refer to the report about the Vannak case published in your very fine journal
in the September 12-25 issue.
The decision in the Vannak case is saddening but not at all surprising. To be surprised
by such a blatantly unjust decision shows a nativity about Cambodian "justice."
The simple fact that many, including myself, have pointed out since 1992 over and
over again is that Cambodia does not have a court system. What it has is an extension
of the executive branch acting in a judicial capacity. A court system requires substance
and procedural laws which define their powers, which lay down the substance and procedural
laws by which they are bound. In the case of criminal trials, a court is bound by
the law defining crimes (a penal code), a criminal procedure and an evidence law.
Furthermore, an appeal court acting under a law relating to appeals is also an essential.
Without these, a fair trial is not possible. To expect judges to make their own rules
for dispensing justice may be a good children's game, but that is not what is meant
by a court. To say that international experts were surprised by this exposes a rare
degree of ignorance of the Cambodian "legal" system. Why be surprised,
for instance, if stones do not fly or pigs do not act like elephants. As early as
January 1993, Yasushi Akashi declared in a decree issued by him appointing a special
UNTAC prosecutor that Cambodia does not have an independent judiciary. Does anyone
claim that things have changed for the better since then? International experts would
do well to point out the actual nature of the Cambodian "system of justice"
and by helping and urging that fundamental reforms be made. This was never easy;
and under present circumstances it will even be harder. However, to follow the easy
path of expressing [surprise at] this or that case is to create illusions about the
system and to mislead the Cambodian people.
As for Vannak, he should be released immediately as the whole process is just a farce.
- Basil Fernando, Executive Director, Asian Human Rights Commission.