Unchecked political interference will undermine ECCC legacy

Thursday, July 22, 2010
Letter to The Cambodia Daily

Unchecked political interference will undermine ECCC legacy

The Cambodia Daily recently reported on the Open Society Justice Initiative report (the “OSJI Report”) that concluded that political interference in the work of the Extraordinary Chambers in the Courts of Cambodia (the “ECCC”) is damaging its legitimacy (“‘Corrosive’ Political Interference at KRT, Group Says,” July 7, 2010). Subsequently, Ms. Della Sentilles of the Documentation Center of Cambodia expressed frustration that the OSJI Report, and others like it, base their evaluations on “speculative examples and on Cambodia’s stunted past” (“OSJI Report Lacks Evidence, Perspective on Khmer Rouge Tribunal,” July 8, 2010). The Cambodian Center for Human Rights supports the OSJI Report, particularly the acknowledgement that political interference is undermining “hope that the ECCC could serve as a model of justice for the domestic courts in Cambodia.”

It is artificial to disregard the history of political interference in the Cambodian judiciary as irrelevant to the ECCC. This history – and current practice – reveals a deeply ingrained political culture that fails to respect the constitutional guarantee of a separation of powers. For example, in the recent highly politicized defamation proceedings against parliamentarian Mu Sochua, the presiding judge at the Supreme Court hearing was Khim Pon, a member of the Central Committee of the Cambodian People’s Party (the “CPP”). The President of the Supreme Court, although he did not preside in the hearing, is Dith Munty, a member of the CPP Standing and Permanent Committees. Indeed, it is concerning to note that two of the adjudicating judges at the hearing of Mu Sochua's Supreme Court appeal –You Ottara and Som Sereyvuth – are a reserve judge for the ECCC Trial Chamber and a judge at the ECCC Supreme Court Chamber, respectively. It is unrealistic to expect judges and other court officials that have participated in a hierarchical system of political patronage to suddenly become immune from high-level political pressure.

Ms. Sentilles argues that regardless of reported political interference at the ECCC, the inclusion of provisions to resolve disagreements and the ‘Super Majority’ safeguard in the ECCC’s internal rules, developed in anticipation of such interference, have “minimized” its effects. However, it is not clear that the ultimate effects of the reported political interference will be minimal. For example, if defence teams are prevented from placing all relevant evidence before the Trial Chamber, particularly the potentially exculpatory testimony that could be provided by witnesses who remain in positions of power, the trial process cannot be considered to have met international fair trial standards. Or, if cases 003 and 004 do advance to trial, the majority of Cambodian judges in all chambers at the ECCC could prevent any politically unpalatable convictions. We need to be speculative to highlight why political interference could be a problem so that remedial action can be taken to address it. If the accused are convicted on the basis of an unfair trial in which potentially exculpatory evidence has been ignored for political reasons, and other suspects are not fully investigated and tried due to RGC pressure, it will be too late to do anything about it.

It is time to abandon the ‘free pass’ implied by comments referencing Cambodia’s troubled past. Political interference is not an issue of resources, capacity, or training. The failure of the United Nations and international staff at the ECCC to take a stronger stand and speak out about political interference is undermining the ECCC’s demonstration effect and its ability to leave a positive legacy for the wider Cambodian justice system. The importance of the ECCC’s mandate for national reconciliation and the potential of the court to contribute to understandings of justice in Cambodia are too great to deflect criticism of its independence with Ms. Sentilles’ caveat that the ECCC is “in large part an experiment in international law.” Ms. Sentilles argues that linking political interference at the ECCC to “rampant” interference in the domestic judiciary risks undermining the public legitimacy of the court. On the contrary, I would suggest that the biggest threats to the legitimacy of the ECCC are political interference and the failure of the international community to speak out against it.

Ou Virak
President, Cambodian Center for Human Rights