SPEAKING
FREELY Trying time for Cambodia's
judiciary By Verghese Mathews
Speaking Freely is an Asia Times
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their say. Please click hereif you are interested in
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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 mathews@iseas.edu.sg.
(Copyright 2006 Verghese Mathews.)
Speaking Freely is an Asia Times
Online feature that allows guest writers to have
their say. Please click hereif you are interested in
contributing.
