Friday, May 19, 2006

Trying time for Cambodia's judiciary

By Verghese Mathews

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Most Cambodians had never heard of Dame Silvia Cartwright until she was recently appointed by the United Nations as one of the international judges for the forthcoming Khmer Rouge tribunal.

Dame Silvia, current governor general of New Zealand, is one of 13 international judges set to have an important impact on the lives of the Cambodian people and the country's fractious politics. Snippets in the mainstream media and online chat areas speak highly of her distinguished career as a lawyer, a jurist and a High Court judge - the first woman ever to be appointed to that high post in New Zealand. Mention is also been made of her prominent role in the fight against discrimination against and abuse of women - a particularly popular cause in Cambodia.

There are 12 other international judges and prosecutors from Asia, Europe and North America, all nominated by the UN, about whom also very little is known inside Cambodia.

There is increasing curiosity about the international judges, who will join their Cambodian counterparts in the first trial of this nature in Asia's history. In sharp contrast, rather harsh words have been reserved for at least one of the 17 Cambodian judges and prosecutors chosen by the highest local judicial body, the Supreme Council of the Magistracy headed by King Norodom Sihamoni.

This reaction is neither unexpected nor surprising. The UN and human-rights groups have repeatedly asked hard questions about the ability of Cambodia's judiciary to achieve an impartial and credible verdict in what will surely be a politically charged trial. After nearly seven years of negotiations, it is a remarkable achievement that a part-Cambodian, part-foreign, nationally administered tribunal has finally reached this point.

Since the tribunal's genesis in 1997, when then co-prime ministers Prince Norodom Ranariddh and Hun Sen wrote to the UN secretary general for assistance in establishing a trial to bring the preparators of crimes committed during the ultra-Maoist Pol Pot regime to justice, the path to a credible format has been long and hard.

What is probably long forgotten is that the prime reason the co-premiers sought UN assistance in the first place was not merely that the crimes had an international dimension or relevance, but more because of the explicit admission that the Cambodian judiciary had neither the expertise nor the resources to conduct such a complex trial.

Some background to the crimes the tribunal will examine is instructive. Under the Khmer Rouge regime, most of the judiciary either died or were killed, along with an estimated 1.7 million other Cambodians. The more fortunate escaped the clutches of the regime and resettled in foreign countries. The net result was that when the Khmer Rouge was finally ousted from Phnom Penh in 1979 by invading Vietnamese forces, the newly installed Cambodian government had to build a new judiciary in essence from scratch.

That was necessarily a painfully slow process for a cash-strapped and inadequately trained government that was simultaneously working to build education, public health and administrative infrastructures. Invariably, the few remaining trusted community elders and senior party officials were chosen by the new government's politburo to carry out primary judicial functions. Though, at least in the early years, the main objective of the emerging judiciary was to ensure the political and social stability of the fledgling, Vietnamese-appointed regime.

This was how the current Cambodian judiciary came into being some 27 years ago. In the interim, law students were sent overseas for training, particularly to Vietnam in the initial years, and gradually an adequately trained coterie has taken its place inside the judiciary - though critics contend there are still some from an earlier era that would be better suited in retirement than on the bench.

Detractors point out that the Cambodian judiciary is not among the more respected institutions in the country. This, unfortunately, is so. However, there are those who counter that it is grossly unfair to paint the whole institution with one broad brush because of a few bad apples.

Where the tribunal is concerned, given its multinational structure and emphasis on transparency, the Cambodian judges will invariably come under greater scrutiny and will be benchmarked against some of the world's best international judges. The hope is that the tribunal's experience will contribute to and accelerate the Cambodian judiciary's maturity.

The tribunal - officially known as the "Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea" - is popularly known by its shorter name, the Extraordinary Chambers or, even shorter, the ECCC.

The ECCC will have the power to try suspects charged with committing crimes under Cambodian and international laws, including genocide, crimes against humanity, and war crimes, in addition to murder, torture and religious persecution.

The ECCC will have two chambers, the first being the trial court made up of three Cambodian and two international judges. For a decision to be reached, the principle of a "super-majority" will apply, that is, four of the five judges must support the verdict. This means that every decision must have both Cambodian and international support.

The other chamber, the Supreme Court, which will function as an appeals chamber, will be composed of four Cambodian and three international judges, and will require five judges to uphold an appeal decision. If a super-majority decision cannot be achieved at either of the courts, the accused will be released as not guilty.

If an accused is found guilty, the maximum sentence will be life imprisonment, as Cambodia has abolished the death penalty. Likewise, in a country where government pardons and royal amnesties are very common, the government has agreed that neither will be granted to persons who are found guilty.

Moreover, the court will only try crimes committed between April 17, 1975, and January 6, 1979 - representing the three years, eight months and 20 days the Khmer Rouge were in power. Only those "most responsible for serious crimes" will be tried - a number provisionally envisaged to be fewer than 10. The actual trial is expected to begin early next year, though prosecuting judges are expected to start work from the middle of this year.

The Cambodian people have waited for nearly a generation for these trials. While there will be different expectations of the proceedings, there must surely be some unspoken pride that the trial is conducted in Cambodia, where the crimes took place, under Cambodian and international law, and with Cambodian judges side-by-side with esteemed international judges, including the likes of Dame Silvia Cartwright.

Verghese Mathews is a former Singaporean ambassador to Cambodia, and is a visiting research fellow at the Institute of Southeast Asian studies, Singapore. He may be contacted at


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