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Trial and Error: A Study in Justice

Trial and Error: A Study in Justice

In May 1988 Saing Doeun killed his step-father with an axe. A day later he confessed

to murder and was placed in a Preah Vihear jail where he has remained since.

Frank McKinley of the Cambodian human rights organization, LICADHO has, with the

support of a judge in Preah Vihear, defended Saing in his first trial, six years

after his incarceration. A mis-trial resulted and Doeun has been since released,

but his odyssey represents an attempt in Cambodia to break with the Judicial practices

of the past. The difficulties that have been faced indicate that the creation of

an independent judiciary will depend in part on reforming the relationship of the

court to the police and will not result from simply stipulating independence in the


The trial, the first in Tbeng Meanchey since 1990, was held in a simple wooden building.

The courtroom was dominated by two tables covered with "Kampuchean" blue

tablecloths and mounted on platforms. At an equal height above the courtroom the

judge and prosecutor for the state were seated. At a lower level the defense was

given a table near seating for fifty spectators. Saing sat alone in front of the

judge. Three policemen sat behind him.

Saing is now thirty years old. In 1988 he lived with his step-father, mother, older

sister and younger brother. His step-father was 30 years younger than his 54 year-old

wife (Saing's mother); he had married her when he was 17. The step-father is purported

to have beaten his wife "every day". The younger brother said "sometimes

two or three times a day." On the day that he died Saing's step-father beat

his wife with a stick in a fit of drunken anger. It is alleged that he stepped on

her head and tried to break her neck before staggering off to his hut. Saing testified

that he found his mother in the mud and tried to wake her. She did not respond. Saing

thought that she was dead.

The prosecutor's case depended solely on Saing's confession. He confessed that he

had taken an axe that he had been using to cut fire-wood and had sneaked into the

hut and killed his step-father while he lay in a drunken sleep on the floor.

J. Basil Fernando, a legal scholar originally from Sri Lanka notes that:

Cambodian police "have the option to initiate an investigation into a crime",

but may "stop any investigation, whenever they wish. Whether a case is ever

placed before a court or not is optional. "Where the case is placed before the

court, the police dictate the verdict. The function of the court [has been until

recently] to 'rubber stamp' police verdicts." Saing's confession under previous

Cambodian Judicial practice was enough to convict.

There are two other prisoners in Preah Vihear jail who have never been tried. Khmers

close to the Judiciary in Preah Vihear said that the outcome of the trial held 3

years ago was pre-determined.

LICADHO provided a public defender. This is the first time that Cambodian courts

have opened themselves up in this manner. UNTAC HumanRights Component provided Helen

Fojule, a Nigerian lawyer, as a consultant for the judge, prosecutor and defense.

The defense strategy was two-barreled. It was argued first that the confession should

be disregarded because it was taken at gun-point, and second that Saing had killed

his father in self-defense.

Cambodia operates under a law promulgated by the SNC. It stipulates that "Confessions

by accused persons are never grounds for conviction unless corroborated by other

evidence. A confession obtained under duress ... shall be considered null and void."

Since the entirety of the prosecutor's case was based on the confession, conviction

should have been impossible.

According to McKinley no investigation had been conducted, no report had been written,

no evidence had been obtained, and the police officers who took the confession were

not offered by the prosecutor.

But in the trial, the Judge allowed the confession to stand, and when asked why,

refused to give a reason. She would only say, "I have made my decision."

Kyle Gillespie, UNTAC Human Rights Officer in the province said that the court "tends

to see the police records as the gospel truth."

Saing claims that he gave his confession with a gun pointed at his head. He testified

that he was told at the time, "If you do not tell the truth we will shoot your

ears off, and then we will hang you with a rope."

Saing testified that because he thought his mother was dead, he ran toward the house

shouting for his father: "Why did you kill my mother! Why did you kill my mother!"

At that point, Saing said his father came out of the house with a knife and lunged

at him with it. Saing swung the ax in his hand, striking his step-father in the head.

He then ran off, not knowing what he had done to his step-father.

Saing "had not mentioned the knife in his confession," McKinley said. But

the defense was able to produce two witnesses, Saing's mother and brother who would

testify that they had been told about the knife by Saing the day after the killing.

There were no eye-witnesses to the deadly confrontation. At first the judge indicated

family members were never allowed as witnesses, but later relentedand allowed them

to do so. Saing's mother could not make the hour and a half walk to court.

In the trial the prosecutor starting to question the accused. At one point the judge

asked Saing "Why are you lying?"

The Judge allowed the Prosecutor to read a three page summary statement in which

he asked for conviction. The defense had not been allowed to question the witness

or give a summary statement. After a short recess requested by the defense, defense

moved for a mis-trial. The judge accepted, admitting later that she had made procedural

errors. The second trial was set for two days later, but the parties decided that

an administrative hearing would be held to determine whether Saing should be released.

McKinley said that after the first trial "it was clear that justice would not

obtained in these circumstances." Saing is eligible for release under Article

14 of the transition code which says that if someone is held longer than four months

without trial, they must be released.

Fojule said, "It is not that the judge was unwilling to change court procedures,

but she didn''t understand the provisions of the law and the reasons for the change."

Gillespie said "the biggest problem is that they do not have a clear understanding

of what it means to be 'innocent until proven guilty.'"

Fernando says that "As the judges of Cambodia have no experience at all in functioning

as an independent body ... it may be necessary to provide for a transitional period

of two to five years in which Cambodian judges will work in close cooperation with

foreign legal experts acting as judges, lawyers and legal draughtsmen." But

a "tradition of independence of the judiciary has to be worked out in actual

practice taking place in courts." While all that is being accomplished Saing

is back home with his family.


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