By Bora Touch Esq.
Instigated by FUNCINPEC Secretary-General Nhek Bun Chhay, Nget Sarath of the Office of Prosecution of Phnom Penh Court charged HRH Norodom Ranarridh with Breach of Trust under S.46 of the Transitional Law (1992). On 16 February 2007, the Investigative Judge Ke Sakhorn issued a warrant to “bring” the Prince “in”. It was, in essence, an arrest warrant. The charge against Prince Ranariddh is that while he was the President of FUNCINPEC, he sold FUNCINPEC Headquarters in 2003 for $3.6 million and retained (some of) the proceeds. The Prince maintains that most of the sale proceeds are still with the purchaser, the CPP associate tycoon Ly Chuong and the sale was party-approved.
If convicted (no doubt he will be), the Prince will face up to 5 years imprisonment and his political career will be finished. Responding to the charge and potential arrest, the Prince’s lawyer and the Norodom Ranariddh Party (NRP) claim the charges are politically motivated and that the Court is biased, although no legal argument has been provided to support these claims. NRP threatens public demonstrations.
Is the claim of bias justified?
It is not a matter of controversy that the Judiciary is a political tool/branch of CPP. My comments below, however, concern the legality of the relevant law and the charge.
Under s. 46, the crime of “breach of trust” occurs where “property” has been handed over to the accused under a contract for a particular purpose, but the accused has misappropriated it. The term “property” under the past and the present Khmer and French law relating to breach of trust refers exclusively to chattels or moveable property, (cholanak wathu). The FUNCINPEC Headquarters is real property or immoveable property, (a-cholanak wathu) and therefore the sale of it, even if the Prince pocketed all of the proceeds, does not infringe s. 46. In other words, what the Prince is alleged to have done does not fall within the crime of breach of trust.
S.46 of the Transitional Law (1992), drafted by a French judge Gerard Porcell who was working with UNTAC, is a copy of s. 408 of the old French Penal Code (1810), which was significantly revised in 1992/1994. In the old section 408, a list of property and types of contract that could be subject to breach of trust appeared. Under the revised French Penal Code (1994), breach of trust or l’abus de confiance appears in s.314-1 under which the list of property and the types of contract were omitted. Despite this, in applying section 314-1, the French courts still have recourse to the list of property and contracts appearing in section 408. Cambodia copied the new French section into s.3131-1 of the Draft Penal Code of Cambodia: (see Projet de Nouveau Code Penal. Commente et Compare, Ministre de la Justice (in French & Khmer 2005), p.330
S. 46 of Transitional Law states:
It is of note that the UNTAC official Khmer translation from the original French text of section 46 is confusing and incorrect, which has resulted in, in my view, arbitrary and abusive applications of s. 46.
S. 46 provides that 6 types of contracts are susceptible to breach of trust. They are contract of (1) rent (chuol, or a titre de louage), (2) deposit (pjoetouk or de depot), (3), pledge “banhcham or de nantissement (4) Mandate (anatti or de mandat), (5) loan (khchey proe or de prêt a usage. Note: “loan” here is not a monetary loan) (6) paid or unpaid work, kar-ngea roveang niyochik ning niyochok ru min mean roveang niyochok ning niyochik or pour un travail salarie ou non salarie).
Like s. 408 of the French Penal Code, s. 46 provides a list of 5 types of property capable of breach of trust: (1) property (les effects), (2) funds (deniers), (3) merchandises (marchandises), (4) bills (billets), (5) documents containing and establishing obligation or discharge (quittances ou tous autres ecrits contenant ou operant obligation ou decharge). The term “les effects” in the 1810 French Code refers to biens meubles/moveable property: (see also Chambre Criminelle de la Cour de cassation, 21/08/1940, S.1840.1.703; 09/07/1857 D.1857.1.379; and my unpublished article, “The Khmer Breach of Trust Law and its French Connection” (2005)
Like s. 408 of the 1810 French Penal Code, s. 267 of the Khmer Penal Code 1909 provided the same types of contract and of property susceptible to breach of trust. However, s. 515(2) of the Khmer Penal Code 1929 and 1956 did not. S. 267 of the Khmer Penal Code 1909 used the term “wathu” (effects), which usually means moveable property/effect only. Additionally, none of these old Khmer Penal Codes refer to real or immoveable property as being susceptible to breach of trust and only moveable property was the concern of the Codes.
The Joint Instructions of Ministry of Justice and the Supreme Court of 8 August 2005/no.02 provides a useful guide for contracts that might be involved in breach of trust s.46. For example, contract of sale-purchase, of financial loan and of conditional gift do not come under s. 46; the Joint Instructions refer to “property”, “merchandise” and funds but fail to provide a definition for Traop sambath or “property”.
The terms “wathu” or property of s. 515(2) (breach of trust) of the 1956 Khmer Penal Code is not defined. However, according to Judge Hel Sampha of Sangkum reastr niyum, “property” referred in s. 515(2) means “only sangharem (cholanawathu)” or moveable property: (see Hel Sampha, Law Dictionary for Criminal Law, (in Khmer 1966), pp.75. The definition for “property” being only moveable one in s. 46 is found in Judge Hing Thirith, Dictionary of Law, (in Khmer 2004), p.81. Judge Hing Thirith’s Dictionary has the approval of the late CPP Minister of Justice Chem Snguon: id p.2.
It is clear, as demonstrated above, the charge against Prince Norodom Ranariddh for breach of trust has no foundation in law.
Even with the UN present in Cambodia trying to set up the Khmer Rouge tribunal in the face of allegations of lack of independence and political bias of the Judiciary, these charges the Prince have been brought, demonstrating that that the Khmer Court shows no concern about being seen to be a political stooge of the regime.
Bora Touch Esq.
If convicted (no doubt he will be), the Prince will face up to 5 years imprisonment and his political career will be finished. Responding to the charge and potential arrest, the Prince’s lawyer and the Norodom Ranariddh Party (NRP) claim the charges are politically motivated and that the Court is biased, although no legal argument has been provided to support these claims. NRP threatens public demonstrations.
Is the claim of bias justified?
It is not a matter of controversy that the Judiciary is a political tool/branch of CPP. My comments below, however, concern the legality of the relevant law and the charge.
Under s. 46, the crime of “breach of trust” occurs where “property” has been handed over to the accused under a contract for a particular purpose, but the accused has misappropriated it. The term “property” under the past and the present Khmer and French law relating to breach of trust refers exclusively to chattels or moveable property, (cholanak wathu). The FUNCINPEC Headquarters is real property or immoveable property, (a-cholanak wathu) and therefore the sale of it, even if the Prince pocketed all of the proceeds, does not infringe s. 46. In other words, what the Prince is alleged to have done does not fall within the crime of breach of trust.
S.46 of the Transitional Law (1992), drafted by a French judge Gerard Porcell who was working with UNTAC, is a copy of s. 408 of the old French Penal Code (1810), which was significantly revised in 1992/1994. In the old section 408, a list of property and types of contract that could be subject to breach of trust appeared. Under the revised French Penal Code (1994), breach of trust or l’abus de confiance appears in s.314-1 under which the list of property and the types of contract were omitted. Despite this, in applying section 314-1, the French courts still have recourse to the list of property and contracts appearing in section 408. Cambodia copied the new French section into s.3131-1 of the Draft Penal Code of Cambodia: (see Projet de Nouveau Code Penal. Commente et Compare, Ministre de la Justice (in French & Khmer 2005), p.330
S. 46 of Transitional Law states:
“Any person misappropriated to the detriment of the owner, possessor any property, funds, merchandise, or document containing and establishing obligation or discharge, which was handed over to him as rent, deposit, mandate, loan, paid or unpaid work, which he has accepted on a condition of giving them back, of exhibiting them of using them in a specific way.”
It is of note that the UNTAC official Khmer translation from the original French text of section 46 is confusing and incorrect, which has resulted in, in my view, arbitrary and abusive applications of s. 46.
S. 46 provides that 6 types of contracts are susceptible to breach of trust. They are contract of (1) rent (chuol, or a titre de louage), (2) deposit (pjoetouk or de depot), (3), pledge “banhcham or de nantissement (4) Mandate (anatti or de mandat), (5) loan (khchey proe or de prêt a usage. Note: “loan” here is not a monetary loan) (6) paid or unpaid work, kar-ngea roveang niyochik ning niyochok ru min mean roveang niyochok ning niyochik or pour un travail salarie ou non salarie).
Like s. 408 of the French Penal Code, s. 46 provides a list of 5 types of property capable of breach of trust: (1) property (les effects), (2) funds (deniers), (3) merchandises (marchandises), (4) bills (billets), (5) documents containing and establishing obligation or discharge (quittances ou tous autres ecrits contenant ou operant obligation ou decharge). The term “les effects” in the 1810 French Code refers to biens meubles/moveable property: (see also Chambre Criminelle de la Cour de cassation, 21/08/1940, S.1840.1.703; 09/07/1857 D.1857.1.379; and my unpublished article, “The Khmer Breach of Trust Law and its French Connection” (2005)
Like s. 408 of the 1810 French Penal Code, s. 267 of the Khmer Penal Code 1909 provided the same types of contract and of property susceptible to breach of trust. However, s. 515(2) of the Khmer Penal Code 1929 and 1956 did not. S. 267 of the Khmer Penal Code 1909 used the term “wathu” (effects), which usually means moveable property/effect only. Additionally, none of these old Khmer Penal Codes refer to real or immoveable property as being susceptible to breach of trust and only moveable property was the concern of the Codes.
The Joint Instructions of Ministry of Justice and the Supreme Court of 8 August 2005/no.02 provides a useful guide for contracts that might be involved in breach of trust s.46. For example, contract of sale-purchase, of financial loan and of conditional gift do not come under s. 46; the Joint Instructions refer to “property”, “merchandise” and funds but fail to provide a definition for Traop sambath or “property”.
The terms “wathu” or property of s. 515(2) (breach of trust) of the 1956 Khmer Penal Code is not defined. However, according to Judge Hel Sampha of Sangkum reastr niyum, “property” referred in s. 515(2) means “only sangharem (cholanawathu)” or moveable property: (see Hel Sampha, Law Dictionary for Criminal Law, (in Khmer 1966), pp.75. The definition for “property” being only moveable one in s. 46 is found in Judge Hing Thirith, Dictionary of Law, (in Khmer 2004), p.81. Judge Hing Thirith’s Dictionary has the approval of the late CPP Minister of Justice Chem Snguon: id p.2.
It is clear, as demonstrated above, the charge against Prince Norodom Ranariddh for breach of trust has no foundation in law.
Even with the UN present in Cambodia trying to set up the Khmer Rouge tribunal in the face of allegations of lack of independence and political bias of the Judiciary, these charges the Prince have been brought, demonstrating that that the Khmer Court shows no concern about being seen to be a political stooge of the regime.
Bora Touch Esq.
2 comments:
F... YOU!!!!
Dont try to talk law shit to me, try say in human language 9 coomone law)please!
We know he stole1 do you want people law by stopmped him to dead?
About your chalna- akchalna thing! whent land chang to money and money is movable! land achalna change to money is xchalna, Mother fucker is guilty I condemned him to hell!
try to be hornest to your mother shit head! may nature punish the corrupters!
I propose a new entry to the khmer dictionary
Bora Touch Esq. = Royale ass licker
With no commonsense
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