There is great deal of confusion both inside and outside Cambodia about the legality

of amnesties or pardons given to former members of the Khmer Rouge such as Ieng Sary

and Chhouk Rin.

In general, an amnesty is given to alleged offenders before their conviction of a

crime whereas a pardon is given to those who have been convicted of crimes. In the

Khmer language, however, there is no distinction between the terms "pardon"

and "amnesty". Both terms are translated in Khmer as loeklaengaouh, literally

meaning "to lift guilt".

Article 27 of the Constitution grants the King the power to "commute the penalty

and to lift guilt". Article 7 of the Law Outlawing the "Democratic Kampuchea"

(DK Law) 1994 repeats this constitutional provision. There is no constitutional power

allowing the King to grant an amnesty to any person not convicted.

Under the constitutional principle, to have the guilt lifted by the King, an accused

person must have been judged guilty of a crime by a court of law.

The requirement that a person be first judged by a court is prescribed in article

38(8) of the Constitution, which stipulates that every person has the right to judicial

recourse when being accused of crime. Article 38(7) states "every accused has

the right to be regarded innocent until being judged guilty by a court of law".

From this principle, no law or individual can declare a person guilty by bypassing

the judicial process.

When the justice system is bypassed by an act of parliament, that law is referred

to by constitutional lawyers as an "act of attainder". Act of attainder

is a breach of the constitutional principle of separation of powers provided in article

51 of the Constitution, as it circumvents or limits the adjudicative power of the

judiciary.

An example of such a law is article 12 of the current Press Law. This article gives

the Information Ministry and Interior Ministry the right to suspend a newspaper's

publication for 30 days, which is a common occurrence in Cambodia.

This law vests in the Executive branch of Government a power to make a decision which

should be in the hands of the court.

It means a press organization or editor could be found guilty without going through

a judicial process.

Article 39 of the Constitution empowers people, in this case the newspapers, to sue

the Government for economic loss for such an illegal conduct.

In 1996, by a Royal Decree, the King pardoned Ieng Sary for two offenses. The first

was Sary's conviction for genocide by the People's Revolutionary Council, the predecessor

of the People's Republic of Kampuchea, and the second was Sary's KR membership offense

under the DK Law.

The first pardon for Sary's genocide conviction is considered by some people to be

a legitimate practice of the King's constitutional power, as Sary was convicted by

a court. However, the trial and the conviction have been dismissed by some scholars

and UN legal experts as a "mere political farce". (One expert pointed to

the fact that the defense attorney at the trial called for the death penalty as evidence

of the trial being less than serious!)

Another aspect of the trial was the genocide crime of which Sary was convicted in

Decree-law 01l. This did not fall within the international definition of genocide

as defined in the Convention on the Prevention and Punishment of the Crime of Genocide

1948. Therefore there is no current legal obstacle preventing Sary from prosecution

now for genocide, crimes against humanity and war crimes.

Sary's second pardon for being a Khmer Rouge member was not a proper act under the

Constitution by the King. This "pardon" was unconstitutional and therefore

not legal because the King, as discussed above, does not have the constitutional

power to give amnesty to any person who has not been convicted by a court of law.

Moreover, article 6 of the DK law expressly prohibits granting amnesty to DK leaders.

In addition, the de facto amnesties granted to Nuon Chea and Khieu Samphan by Hun

Sen in 1998 were not even remotely legal, as the Prime Minister under the Constitution

does not have this power.

Chhouk Rin's recent acquittal based on the six-month amnesty period provided under

the DK law was also not justified by law.

It is conceivable that the DK law amnestying KR members for the crime of being members

of the Khmer Rouge is self-validating, as this kind of crime was not crime before

the DK law was passed.

It is, however, inconceivable for the law to be meant to provide blanket amnesties

for all crimes committed by former members of the KR, including murders, abductions,

and illegal confinement, which have always been crimes even before the passage of

the DK law.

The DK law was passed on July 7, 1994. Article 5 of the law allows an amnesty period

of six months for members of the KR political and military forces to defect to the

Government without being prosecuted for their crimes (crimes of being a member of

the Khmer Rouge).

Nineteen days after the passage of law, on July 26, 1994, Chhouk Rin led the train

ambush which killed 13 Cambodians and illegally confined three foreigners who were

later murdered. On September 15, 1994, Chhouk Rin defected to the Government.

As it appeared, Chhouk Rin's defection was well within the amnesty period. The Phnom

Penh Municipal Court on July 18 this year without any reluctance acquitted Chhouk

Rin on this basis.

In fact, the crimes Chhouk Rin allegedly committed had nothing to do with the DK

law. If the Government was serious about convicting him, it could easily have used

the so-called UNTAC law to prosecute him. It did not.

Even if the DK law was used to prosecute Chhouk Rin, the amnesty given to him for

crimes he had committed is not constitutionally valid. Chhouk Rin has not been convicted.

Thus, for the court to presume that he was guilty of being a Khmer Rouge, or guilty

of the commission of crimes, without a court having judged him so is in violation

of Articles 38(7)and 38(8) of the Constitution.

Article 31 (2) of the Constitution states that all citizens shall be equal before

law and enjoy the same rights. On this principle, giving Chhouk Rin the benefit of

the law's amnesty would result in unequal justice for the 13 victims and their families.

It is inconceivable that a law was meant to give an alleged murderer more advantages

than the 13 victims and their families.

The Constitution is a supreme law to which other subordinate laws, such as the "DK

law", must conform. If laws are passed that go against the Constitution, this

renders the protections of the Constitution ineffective. In addition, the constitutionality

of the whole DK law is in serious doubt as it prohibits people from political affiliation

with certain groupings.

Like Sary's pardon for his second offense as stated above, the amnesty given to Chhouk

Rin is also ineffective legally and, further, goes against the Constitution.

Accordingly, given the provisions of the Constitution, in my view it is only political

interests that prevent Sary and Chhouk being prosecuted and ultimately, given the

evidence as I understand it, being convicted.