Memorandum of Legal Advise for Prince Ranariddh by Bora Touch, Esq.

A message from Bora Touch, Esq.

Dec 16, 2007

You might find my Memorandum of Legal Advise [see below] regarding the current legal matter of HRH SKP Norodom Ranariddh interesting (or at least the citations/authorities). It covers two main aspects of the Khmer law of breach of trust and royal pardon (and its history). The latter, the pardon part, might become relevant to the Khmer Rouge trials in the future, when the issue of pardon comes up.

I would like your critical comments if you have time.

HRH SKP Norodom Ranariddh granted his express authorisation for the release of the Memorandum.

I am NOT a supporter of the Prince or the Prince's politics, far from it.

Yours Humbly.

Bora Touch Esq
Sydney Australia.
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Click here to read the original Memorandum in PDF format, including all the relevant notes

Private & Confidential
27 May 2007
Bora Touch Esq

MEMORANDUM OF ADVICE
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Executive Summary:

The conviction of HRH Prince Norodom Ranariddh under the beach of trust provision (s.46 of the Transitional Law) has no legal basis.

The Presidential Decree or Kret no. 28 1988 is unconstitutional and it does not survive by virtue of the transitional provision 158 of the 1993 Constitution. The law that is applicable to HRH Norodom Ranariddh is the Khmer Penal Code of 1956, especially article 191(1). Under this law, there is no requirement for the convict to have served two-thirds of his sentence and there is no requirement for His Majesty to consult anyone before His Majesty grants amnesty or pardon.

I have been asked by HRH Prince Norodom Ranariddh (through H.E. Julio Jeldres, Official Biographer of His Majesty King Father of Cambodia) to provide legal advice on the following two issues:

(1) whether an appeal by Prince Ranariddh against the verdict and judgment of 30 March 2007 of the Phnom Penh Municipal Court has reasonable prospects of success; and

(2) whether the Kret/Decree no 28 of 1988 by Pratean krom praksarotth or the President of Council of State is valid and, if so, whether pardon or amnesty of Prince Ranariddh can be based on that Kret or Decree.

Whether an appeal has reasonable prospects of success

1. On 30 March 2007, HRH Norodom Ranariddh was convicted by the Phnom Penh Court for Breach of Trust under s. 46 of the Transitional Law (1992).

2. At issue in relation to the appeal is whether HRH Prince Norodom Ranariddh’s conduct in deciding to sell and selling the Phnom Penh FUNCINPEC Headquarters 2005 infringed s. 46 of the Transitional Law (1992) relating to breach of trust.

3. In 2005, HRH Prince Norodom Ranariddh decided to sell the FUNCINPEC Head Office, a decision which conformed with article 8 of the Party Constitution.

4. On 14-15 November 2005, a FUNCINPEC extraordinary congress was convened. It approved the proposed sale and the proposed change of the location of the Party headquarters.

5. A Commission of Construction (for the new head office) was created and composed of Prince Norodom Sirivuddh, the then Secretary-general of the Party, Mr. Chhim Seal Leng, Mr. Kong Vibol, Mr. Keo Khemara, Mom Buneang and Mr. Chea Chanboribp. The Commission was charged with the sale contract negotiations and signing of the sale contract.

6. The sale price was $US3.6 millions, of which $1.2 million had been deposited into a account by the purchaser. The rest of money is still with the purchaser Mr. Ly Chhuong. In the contract of sale, Prince Norodom Ranariddh is named as the owner of the land.

7. No evidence was presented to the court to support the allegation that HRH Prince Ranariddh misappropriated any of the sale proceeds.

Appeal from Phnom Penh Court to the Court of Appeals.

7. The time to appeal is two months from the date of the Judgment of 30 March 2007 . The Appeal must therefore be lodged before 30 May 2007. The appeal is a trial de novo (new determination of both facts and law)

Facts do not make out breach of trust

8. Under s. 46, the crime of “breach of trust” occurs where a moveable property has been handed over to the accused under a contract for a particular purpose, but the accused has misappropriated it.

9. The facts and evidence (or their lack thereof) do not constitute a breach of trust at all. The complainants/Nhek Bun Chhay’s group did not hand any property to Prince N. Ranariddh. The handling of the sale and proceeds were exercised according to the internal rules of the party. The Party Head Office is real property or immoveable property and, accordingly, has nothing to do with the breach of trust provision. See further discussion below.

Breach of trust in French Law (copied into Khmer law) applies only to moveable property

10. Of the 287 articles of the Khmer Penal Code of 1911, 158 articles were directly copied from the French Penal Code of 1810. As a result, Breach of Trust (or abus de confiance) found in Article 408 of the French Penal Code of 1810 was copied verbatim and appears as article 255 of Khmer Penal Code 1911.

11. The wording in French of article 408 of the French Penal Code 1810 and article 255 of the Khmer Penal Code 1911 and article 46 of UNTAC transitional law are basically identical.

“Quiconque aura détourné ou dissipé au préjudice des propriétaires, possesseurs ou détenteurs, des effects, deniers, marchandises, billets, quittances ou tous autres écrits contenant ou operánt obligation ou décharge, qui ne lui auraient été remis qu’a titre de louage, de pépot, de mandat, de nantissement, de prét á usage. ou pour un travail salarié ou non salarié, á la charge de les rendre ou représenter, ou d’en faire un usage ou un emploi déterminé, sera puni des peines [portées en l’article].

12. Article 408 of the French Penal Code appeared earlier in article 267 of the Kram Promataond Khemara, Khmer Penal Code (1909).

13. As such, s.46 of the Transitional Law (1992) which was 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) .

14. S. 46 of Transitional Law translated in English as follows:

“Any person misappropriated to the detriment of the owner, possessor or holder 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 using them in a specific way...”

15. As mentioned above, 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 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.

16. 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. The Cambodian Government has now copied the new French section into s.3131-1 of the Draft Penal Code of Cambodia which is now being debated in the National Assembly

17. S. 46 provides that 6 types of contracts are susceptible to breach of trust. They are contracts 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).

18. Like s. 408 of the French Penal Code and s. 255 of the Khmer Penal Code of 1911, 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.

19. Like s. 408 of the 1810 French Penal Code, s. 267 of the Khmer Penal Code 1909 and article 255 of Khmer Penal Code 1911 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.

20. The Joint Instructions of Ministry of Justice and the Supreme Court of 8 August 2005 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”.

21. 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 “property” referred in s. 515(2) means “only sangharem (cholana wathu)” or moveable property . According a former of the Phnom Penh Court, Judge Hing Thirith, the definition for “property” being only moveable one in s. 46. Judge Hing Thirith’s Dictionary has the approval of the late CPP Minister of Justice Chem Snguon .

22. The breach of trust provision of the French law only applies to moveable property. In addition, failure to pay housing (immoveable) rent (thlai chhuol phteh, acholana wathu) do not violate the breach of trust section either .

22. As it is identical to the French law, the Cambodian law of breach of trust equally only applies to moveable property.

23. For the reasons set out above, the Phnom Penh Court has completely erred in that it had no legal basis for convicting HRH Prince Norodom Ranariddh for breach of trust.

Presidential Decree or Kret no 28 of 1988

24. At issue is whether or not the Decree or Kret no.28 of 1988 on Pardon/Amnesty of the Council of State survives the transitional Article 155 of the 1993 Constitution and is constitutional. Can the Decree/Kret no.28 be used in relation to HRH Prince Norodom Ranaridhh’s pardon/amnesty or is pardon/amnesty governed by other law(s)?

25. In 1988, the Council of State issued a Decree or Kret 28 of 1988. The Kret contains 9 articles setting out criteria for pardon and deduction of term of imprisonment. The relevant article to Prince Ranaridhh’s case is article 2 which stipulates that a convict may be entitled to pardon after having served two-thirds of the fixed term of imprisonment.

26. The power of issuing decrees or kret was invested in Council of State under article 60(2) of the 1982 Constitution of the People’s Republic of Kampuchea.

28. The modern Khmer practices of issuing reach kram (ordonnance), reach kret (royal décret), kret (decree/décret) and kret-chbab (décret-loi/decree-law) and Anukret (décrets d’application/sub-decree) and praka (circulars) has its roots from the French tradition.

29. After the French Revolution, the French Parliament alone had the power to pass laws (les lois). The French Constitution of 1791 prescribed clearly that statutory law was superior as the expression of national sovereignty. Law was the expression of the general will and the task of making law was given to the Parliament ; the executive could only implement the law (statutory law or loi) and was not allowed to make law, but only proclamations consistent with the law for the purpose of ordering or encouraging their execution. The King was not given legislative power.

30. The French Constitution of 1799 provided that the government could make règlements and ordonnance necessary for the implementation of the law. The French Constitution of 25 February 1875 of the Third Republic also provided that the president “shall supervise and ensure the implementation of the loi ”.

31. Up until 1958, the executive could not make law; it could only make supplementary règlements. The French executive was not independently allowed to make decrees and accordingly, it was not allowed to issue decrees with the force of law, such as Kret no. 28 of 1988.

32. Even in circumstances where the French Parliament delegated legislative power to the executive, France always maintained that the power of amnesty or pardon rested with the Parliament which maintained the power to make laws in respect of amnesty or pardon.

Decree power under the French 1958 Constitution.

33. Décrets are issued by the President of France or Prime Minister after the “Council of State” has been consulted. By Article 21 of the French Constitution 1958, the power to make the regulations provided for in article 37 is vested in the Prime Minister. Décrets en Conseil desministres are signed by the President under article 13 of the 1958 Constitution.

34. There are two classes of décrets: (1) those enacted under the pouvoir reglementaire or regulation-making power conferred by article 21 of the 1958 Constitution – decrets autonomes, also called règlements autonomes (autonomous regulations), and (2) those which are enacted at the request of the legislature for the purpose of implementing Acts of Parliament – décrets d’application, also called règlements d’application.

35. Unlike the Khmer 1993 Constitution, the French Constitution 1958 provides both the Parliament and the Executive with law-making power. Domains of law-making competence are specified in articles 34 and 37. Further, under article 38 of the French Constitution, the Executive may ask Parliament for permission during a limited period to legislate even in a domain usually reserved for parliamentary legislation by means of a blanket loi d’habilitation or Enabling Act. The Executive/the President then proceeds by way of issuing Ordonnances. Under the Third and Fourth Republics (that is, before 1958) these instruments were called “décret-loi ” or decree-law.

36. The Executive power to issue decrees or decree-laws which the have the force of law has always been expressly sanctioned by the French constitutions and, if they relate to matters normally within the competence of the Parliament, by the so-called Enacting Acts.

37. Although there has been a widespread practice of issuing decrees or ordonnances in France occurred since 1934, it has always been the legislature which legislated in relation to amnesty or pardon. Under the (current) Fifth Republic, amnesty or pardon is governed by Organic Law of 1958

The Khmer practice.

38. The modern usage of the “decree” or décrets in French (kret, reachkram), “Decree-law” or (Kret chbab) or décrets-loi or Ordonance in French, has its roots in the French legal tradition. Like Kram, the Khmer term “kret” is from the Sanskrit term “kretya” or Pali “kechha ” meaning law. Before and during Angkor, the (Hindu) legal term “vra sasana” or “raja sasana” was often used. But in modernity, it means “decree” or legally equivalent to the French “décret”. Traditionally, all powers, including the legislative power, were in the hands of the king . The King made laws by way of or under the name of Reach kret or reach kram or royal ordonnances.

39. Under the 1947 Constitution, the power to make or vote laws was exclusively vested in the Parliament . As such, after the promulgation of the 1947 Constitution, the practice of issuing royal decrees or reach krams or reach krets having the force of law should have ceased, but the traditional royal power continued long after the 1947 Constitution became effective. Even under the current 1993 Constitution, the practice of issuing royal decree is legally unsettled. Since 1993, the King has still issued autonomous (unconstitutional) royal decrees.

40. Under the Royal Ordonnance on Commission of Pardon or the Commission de Grâce of 11 August 1901, the King had the power to grant pardon or amnesty.

41. In 1926, the French Superior Residence pointed out that Cambodia did not have law on the pardon or amnesty. Two years later, when the Khmer Penal Code of 1911 was revised, pardon or amnesty provisions were inserted into the Khmer Penal Code (1929) . These articles were significantly revised under the Penal Code (1956). See detailed discussion further below.

42. All Khmer Constitutions since 1947-1993, except those of the Khmer Rouge and People’s Republic of Kampuchea and State of Cambodia, require acts of Parliament for amnesty or pardon not Executive decrees. For instance, under the first Kingdom 1947-1970, the King or the head of state determined pardon/amnesty. Parliament enacted law for amnesty/pardon. Under the Khmer Republic 1970-1975, the President determined pardon/amnesty. the Parliament enacted law on Amnesty or pardon. Under the second Kingdom, the King determines on amnesty or pardon . The law that governs royal amnesty/pardon is to be a parliamentary law.

43. Kret no. 28kr of 1988 was issued by the President of the Council of State when the 1982 Constitution was in force. According to this Constitution, the Parliament determined amnesty/pardon. The relevant article of the Constitution does not, however, say whether an act of Parliament was needed to be enacted by Parliament. Article 60(8) of 1982 Constitution provided that the Council of State determined the amnesty/pardon. There is therefore overlap between the functions of Parliament and the Council regarding pardon and amnesty. This is not a mere oversight because the same provisions were enacted under the State of Cambodia Constitution 1989 which provided that the parliament determined on amnesty/pardon. Council of State “determines amnesty/pardon”.

44. In contrast, under both 1982 and 1989 Constitutions, “only the parliament had the power to make laws/chbab” Contradicting themselves, both constitutions, however, provided that the Council of State promulgated laws and issued krets/decrees. The communist Vietnam’s constitutional practices would help explain this behavior as the People Republic of Kampuchea adopted them.

45. In this regard, the 1982 Constitution did not exactly adopt the wording of the 1946 Constitution of Vietnam, but the Standing Committee of Assembly was assigned to the Council of State, that is, under the 1982 Constitution, the Council was the Standing Committee of the National Assembly . However, what was different from the Vietnam’s 1946 and 1992 constitutions was that the 1982 Constitution expressly gave exclusive law-making power to the National Assembly .

46. Since the power to make law was an exclusive power of the Parliament and the Kret no.28 of 1988 was meant to be a law, as it dealt with human dignity and freedom, by enacting the kret (with the force of law), the Council of State violated even its Constitution (1982) and the kret is therefore unconstitutional.

47. More importantly, Cambodia has had a law on Amnesty and pardon since 1929 which was repealed by the Khmer Penal Code of 1956. The Penal Code of 1956 now governs pardon and amnesty affairs. The Kret no 28 of 1988 is therefore not only unconstitutional but also irrelevant.

The hierarchy of laws in Cambodia – the place of decrees vs acts of Parliament.

48. The issue of whether the Kret is constitutional aside, in the legal hierarchy in Cambodia (or Vietnam and France), Krets/decrees are inferior than an act of Parliament/statutory law. In this case, relevantly, the Penal Code 1956 takes precedence over any decree, including Kret no 28.

49. According to the Ministry of Justice, amnesty is different from a pardon or grâce in that the amnesty is a legislative intervention (by way enacting legislation) rather than being the power of the King or the Executive. It goes on to explain that the effect of amnesty would to be to nullify or abolish the criminal acts that took place before amnesty becomes effective. Amnesty is usually granted by statute which sets out direct regulations, dates and the type of crimes that fall within the amnesty. If the amnesty take place after a conviction, the amnesty retroactively abolishes the conviction. Clear from this is that it is legislative intervention, as opposed to an Executive Decree, which effects amnesty. This may explain why the Kret 28 has been ignored in the Ministry of Justice’s discussion of the amnesty and pardon powers.

50. In its discussion of the provisions of pardon and amnesty and their history, the Ministry of Justice referred exclusively to provisions of the Penal Codes of 1929 and 1955. It did not refer to the Kret 28 as, constitutionally, it is not relevant .

51. Furthermore, since 1993, Kret no. 28 of 1988 has not been referred as a basis of authority for the Royal Decrees for Pardon. Only the 1993 Constitution has been referred to as such authority.

52. According to Article 158 of the 1993 Constitution, laws and standard documents remain in force until they are amended or repealed, except those provisions which are incompatible with the spirit of the 1993 Constitution.

53. Kret 1988 is not a law or a standard document and thus it is not relevant to the application of Article 158 of the Constitution (as amended). Even if Kret 1988 were to be characterized as a “standard document”, as it is unconstitutional, it is not enforceable. The Penal Code 1956 prevails in any event.

54. The applicable and legitimate law is the Penal Code of 1956. This Code is applicable because of Article 158 of the 1993 Constitution. This has been confirmed by the CPP Minister of Justice, H.E. Ang Vong Vathana. According to the Ministry of Justice, “Pursuant to article 158 of the 1993 Constitution as amended in 1999 and 2003, laws promulgated under different Governments such as Sangkum, Khmer Republic, People’s Republic of Kampuchea which became State of Cambodia are still in force” so long as “their provisions are not contrary to the spirit of the Constitution”. The laws that are still in force, the Ministry states, “include the Code of Criminal Procedure 1962. Criminal Code of 1956.”

Relevant articles of the Criminal Code of 1956

55. Article 191 of Khmer Criminal Code states “both kinds of clemency…[luhleah toh & banthoey toh, or Pardon and Commutation] is the royal prerogative”. Article 191(1) provides that “if His Majesty wishes to grant royal pardon to a single convict, His Majesty can do that any time of the year, no matter if the conviction is of felony or of misdemeanor [bot ukretth ru machhem), [procedure of which] is stipulated in article 179 ”.

56. Article 179 of the Penal Code prescribes (although this article is more relevant to granting royal pardon to a group of convicts as opposed to a single convict) who may file the petition for royal pardon. Those who can file a petition for royal pardon are: the convict himself, his legal spouse and a relative of the convict. According to Article 179 of the Penal Code, “if His Majesty wishes, He could wait to see reports from Prison wards about the convict’s behavior before He grants royal pardon”. In other words, His Majesty does not need to see any report before He grants pardon. He also (obviously) has the right to deny any application and not to grant pardon.

57. Clearly under article 191(1) of the 1956 Penal Code, there is no requirement at all for a convict to have served two-thirds or any part of his sentencing before His Majesty can grant royal pardon.

58. The requirement for convict to have served at least two-thirds or one-half of his sentence applies only to the case where royal pardon is for multiple convicts at one time . According to article 179(2), in the case of “His Majesty granting royal pardon to multiple convicts (ruamknea chreoun neak), the initiatives are the duty of the administrative authority who, according to conditions and procedure stated under articles 181 and 182, files the petition on behalf of the convicts of misdemeanor or felony who have served 2/3 or a half of his sentence.”

59. The Penal Code of 1956 (article 191(1) does not require His Majesty to consult with anyone, including the Prime Minister before He grants a royal pardon or amnesty if the royal pardon is granted upon the request of one convict.

60. Finally, it is important to note that the term loeklaeng toh should only be used on official request for royal pardon or public statements. The following terms should not be used: anukruoh toh, or sanduh toh, or luoh lea toh as they may cause some complication because the convict’s conviction and sentence may be subject of amnesty or pardon but the criminal records remain. This would pose a problem for those who wish to run for a public office.

Touch Bora Esq.
Lawyer
27 May 2007