When the Court of Appeal issued its verdict Tuesday in the case of preservationist Moeung Sonn, it managed to stun observers already resigned to a likely upholding of the lower court’s verdict. During those six minutes, though, the court did not simply maintain Mr Sonn’s guilt, it demonstrated it could sentence a man on charges for which he was not tried.
Rights workers and observers this week called the change of charges in the case of Mr Sonn unethical at best—at worst, a flagrant violation of international code. But whether it is illegal is less clear. There are no overt provisions in the court procedure code addressing whether charges can be changed after a case is argued and legal experts have been stymied by the move.
To fully understand the case it is necessary to look back to 2009, when Mr Sonn first uttered the words that would launch multiple court cases and send him fleeing abroad. In June 2009, the government filed charges of disinformation and incitement against Mr Sonn for criticizing a new lighting scheme at Angkor Wat.
As president of the Khmer Civilization Foundation, he had raised concerns about the project during press interviews and in a letter to Prime Minister Hun Sen, claiming the new lights were ugly and the heat they generated could damage the temple.
In an unusually rapid sequence of events, Mr Sonn’s trial was heard just six weeks after the suit was filed and the sentence was handed down the same day.
He was charged with dissemination of disinformation, but the charge of incitement was dropped. During this month’s appeal hearing, Sok Sam Oeun, Mr Sonn’s attorney, asked for an overturn of the 2009 conviction arguing that his client had no intention to criticize or blame the government. Instead, the court on Tuesday upheld the previous conviction but changed the charges to incitement.
Outside observers condemned the recent development as one more misstep in a case that should not have existed in the first place.
“Any court decisions should reflect the spirit of freedom of expression as enshrined in the Constitution, and not another way around,” said Chea Vannath, an independent political observer. “At the long range, using the court to shut down public opinions, ideas and views does not bring prosperity to the country, or promote dignity of its people.”
Phil Robertson, deputy director of Human Rights Watch’s Asia Division, slammed the judicial system, accusing them of caving to outside pressure.
“Unfortunately, this appears to be yet another instance of a ‘devil take the rules’ approach of the Cambodian judicial system, doing whatever it takes to secure a conviction that those in power want,” he said in an email.
“Convicting a person of a charge for which they were not tried makes a mockery of legal due process and is totally contrary to all the international human rights conventions which Cambodia has ratified.
The judge should have sent the case back down to the lower court for re-trial instead of making a decision of convenience that clearly violates the defendant’s rights.”
Among the conventions to which Cambodia is a party, the International Covenant on Civil and Political Rights addresses the issue in no uncertain terms. Ratified by Cambodia in 1992, the ICCR says that when criminal charges are filed, the person charged is entitled “To be informed promptly and in detail…of the nature and cause of the charge against him [and] to have adequate time and facilities for the preparation of his defense.”
But complicating matters is the fact that lawyers themselves seem uncertain where Cambodian law stands on this. There is nothing in the 2007 Code of Criminal Procedure that explicitly addresses this issue, though it does note charges are to be brought by the prosecutor. Elsewhere in the code, the Court of Appeal is given permission to “requalify the offense” but whether entirely new charges can be applied after the case has been argued is not clear.
Run Saray, executive director of Legal Aid of Cambodia, a NGO that provides legal services to poor members of society, noted that under previous codes, the action would be a clear violation, but he was not clear whether the same held true for this one.
Ou Virak, president of the Cambodian Center for Human Rights, which has been monitoring this trial, said if the court found no validity to the charges on which Mr Sonn was convicted, they should have dropped them and allowed the prosecutor to re-file the case.
“Changing a charge without apprising the lawyer is not proper. It should have dismissed the charge completely and the prosecutor would have the option to bring the new charge,” said Mr Virak. But he too admitted it was not clear whether the move was illegal.
“The fact that the judges dismissed the disinformation charge shows they probably did not find him guilty of disinformation,” he added.
Government lawyer, Pal Chandara, defended the court’s decision to change charges noting the original suit he filed in 2009 did include a charge of incitement. “This is the right of the Court of Appeal.”
“It’s fair for the court [to do this] because it strengthens the rule of law,” he continued.
The Ministry of Justice, for its part, sees nothing particularly problematic with the move.
“There’s nothing wrong with the procedure, because it is the judge’s right,” said Prom Sidhra, secretary of state at the Ministry of Justice, noting that Mr Sonn could appeal the decision in accordance with the law.
Mr Sam Oeun said Thursday he would be doing just that. “I think the court has no right to change the charges.”
“For me, I believe this is so, but it’s the decision of the court. That’s why I will file an appeal to the Supreme Court—to interpret this action.”