Shifting Burden of Proof: From Victims to Government of Political Violence

SHAME ! SHAME ! SHAME ! How unspeakably shameful and unspeakably infuriating that we -- our dignity, our present, our future, OUR NATION, our people -- should suffer the FLAGRANT ignorance and FLAGRANT stupidity of our government and judiciary! It is one thing for someone who doesn't know how to read and write to not know how to read and write; we have a different understanding and expectations of them - lack of resources, lack of opportunities; we do not hold them morally bankrupt. Many times, to the contrary, we admire their simplicity and honesty.

But for people - public officials, REPRESENTING US -- people, who hold themselves to be "educated" to play stupid and ignorant -- this would be laughable if not for the very real, serious spill-over consequences into public life and development of Cambodia.

The context has changed by the many misused billions of U.S. dollars pouring into Cambodia to give us a better facade, a better designer suit, but the bloody dirt and grime, the bloody paranoia and deceit, the bloody elevation of ignorance and anti-intellectualism of Khmer Rouge mentality continue to lead us backward into Cold War destruction. The Khmer Rouge leadership claimed ignorance or "I have no choice" for the killings; do current officials in the government, in the judiciary, in parliament, not use the same line of argument, "I have no choice"? I was forced to kill; I was forced to lie; I was forced to inform on my neighbor, etc.

Silence/inaction in the midst of wrongdoing is already considered morally bankrupt; how much more to be the hands to execute the unjust (even if lawful) order, to aid and abet?! What are the sorry excuses of the Svay Rieng Court to be either this incompetent or criminal (in knowingly convicting the villagers and opposition leader Sam Rainsy) or both? "I have no choice; if I don't do it, I will lose favor with the powers that be? I will lose my Lexus? I will lose my position?"

What the Khmer Rouge Tribunal is telling us is that no matter how difficult the choice, we are all held INDIVIDUALLY RESPONSIBLE for our choices! If we are to consider the degree of difficulty of the Svay Rieng Court to those of KR cadres, the degree is one of comfort and less of life and death.

SHAME! SHAME ! SHAME ! Unless we mature as individuals and as a people, expect more of this stupidity and ignorance and anti-intellectualism to be the norm. And weep. Weep for yourself, weep for our children. Weep for the death of Khmer dignity and Khmer nation.

The article below was first published in June 2008 in The Phnom Penh Post as part of the Voice of Justice columns.

SHIFTING BURDEN OF PROOF:
From Victims to Government of Political Violence

On June 2, the Cambodian Human Rights Action Committee (Chrac), Nicfec and Comfrel held a press conference on political violence during the pre-campaign period, and questions arose as to how we know that these cases of violence were related to politics. Do we have proof?

These are legitimate questions and the response requires us, first of all, to distinguish between what one knows and what one can prove, and related, to understand the term "burden of proof".

In law and in politics, as in life and in love, what we know can be different from what we can prove. The opposition commune chief was beaten unconscious: was he beaten for his political affiliation or for a personal vendetta or as a result of violence in the course of a random robbery? The victim, his family and neighbors believe (or know) the violence occurred because of his political stance, but how do they prove it? The government denies their charge or claim.

In current Cambodia, we see this scenario repeat itself over and over again, with only the names, location and context changing.

What is the "burden of proof?

In law and philosophy, the term "burden of proof" refers to the onus (duty, obligation) to establish (demonstrate, prove) a disputed charge or allegation for it to be accepted as true (or reasonable to believe). Simply put, the burden of proof is the responsibility of proving a fact in dispute.

Normally, the burden of proof rests on the person who asserts, not who denies. That is, the necessary of proof lies with he who complains. The principle that it should be this way is commonly known as the "presumption of innocence". If "he who asserts must prove" then the plaintiff has the burden in a civil case, and the prosecutor in a criminal case.

This allocation of burden is correct and as it should be.

Additionally, the less reasonable a statement or allegation seems, the more proof it requires.

Current burden on victims

Currently in Cambodia, when there is violence against opposition activists, the victims cry "politics!" and the government decry against it, claiming instead that it was random violence or personal vendetta. The victims carry the impossibly heavy burden of proving that it was politically motivated. It is impossible because the perpetrator hardly ever states his motivation; it is heavy because of the high threshold of non-existent visible proof, unlimited possibilities and motivations which could be and are posited, as well as a culture of fear and lack of investigative resources.

Cambodians, who read or hear of the repeated patterns of these incidents, intuitively know that these acts of violence are politically related, their knowledge framed and informed by their personal experience and acute understanding of their society, even if the victims cannot prove the case.

These cases provide a dissonance and disconnect between public knowledge and proof.

Hence, to maintain the burden of proving it was political on the victims is to invite and encourage further political violence and impunity of the perpetrators and powers-that-be. It is to play a pretend game of life when everyone knows otherwise.

Shifting burden to government

We need to shift the burden. We need to shift the responsibility of proof which is currently on the victims to the Government. We need to make it the Government’s duty to prove it was not political.

The exceptions to this general principle that "he who asserts must prove" can be had through a statute expressly placing the burden on the Government... "it shall be for the Government to prove..."

However, the shifting of burden through a statute must be limited (e.g., to the elections period) in order for it to be fair and reasonable.
Sample Statute
Six months prior to and three months after the July 27 national elections, any violence perpetrated on a known political activist (it does not matter which political party) will be considered a prima facie [automatically/ "on its face"] political case, and it shall he for the Government to prove that [the murder, the threat, the intimidation etc.] is not political. The Government shall compensate the victim or his family [US$100,000 for murder, etc.].

If the Government is serious about stemming political violence and would like to proactively erase the high suspicion and distrust of the public, and conversely build public confidence and communicate that life is sacred by giving token compensation, this Statute is very reasonable and necessary. However, if it would like the public to continue to be cynical, suspicious and fearful, then the Government should maintain the status quo and continue to parrot "personal vendetta; random violence" speech.

Other random matters

The arrest of opposition journalist Dam Sith is a deeply, deeply shameful, flagrant disrespect for the rule of law, due process and free expression, and adeeply, deeply shameful display of brute power that has no place at the table of civilized people and civilized nations in a globalized community of 2008. Has defamation not been de-criminalized? Moreover, what is the falsehood to be legally charged? In defamation, truth is a defense.

Generally speaking, we see that the ancient Greek, Anarchus, was very prophetic of Cambodia when he wrote: "Written laws are like the web of a spider, and will like a spider web only entangle and hold the poor and weak, while the rich and powerful will easily break through them." (I highly recommend US Ambassador Joseph Mussomeli's speech of March 20, 2008 from which this quote is taken.) Or a more modem version of this: "For my friends, whatever they want. For my enemies, the law."

Theary C. SENG, a member of the New York Bar Association, former director of Center for Social Development (March 2006—July 2009), founder and Board of the Center for Justice & Reconciliation (www.cjr-cambodia.org), founding adviser of the Association of Khmer Rouge Victims (www.akrvc.org), is currently writing her second book, under a grant, amidst her speaking engagements.