The Cambodian Bar Association issued a statement Thursday claiming that the Khmer Rouge tribunal’s draft internal rules violate Cambodian law, and demanding greater control over the process of defending of the regime’s former leaders.
The Extraordinary Chambers in the Courts of Cambodia on Nov 3 called for public comment on the draft rules, which define the roles of judges, prosecutors, defense lawyers, suspects and witnesses appearing in the trials.
Responses are due today, and on Monday all ECCC judges and prosecutors will meet to resolve this increasingly heated debate.
Cambodian Bar Association President Ky Tech in an interview Thursday threatened to file complaints against any foreign lawyers practicing at the tribunal unless his association’s demands are met.
“Foreign lawyers are violating the Cambodian law, they don’t want to cooperate with the bar association,” Ky Tech said.
“If they don’t cooperate, they can’t operate…. We will sue to the government, the ECCC and to the international bar associations,” he said.
In a statement to the ECCC, Ky Tech outlined the bar’s view that only it can approve the list of defense attorneys for Khmer Rouge suspects, oversee lawyers’ training and discipline them for misconduct.
The bar’s statement takes issue with two of the internal rules in particular. One sets up the “Defense Unit,” headed by Principal Defender Rupert Skilbeck. The other allows the co-investigating judges and the tribunal’s chambers to strike a person off the list of approved lawyers for misconduct.
Ky Tech also requested that the Defense Unit change its name to the Office of Defense Support and Cooperation, and said that a foreigner should not head it because the ECCC is fundamentally a Cambodian tribunal.
“This office must be headed by a chief lawyer who is a Cambodian lawyer,” Ky Tech wrote.
Ky Tech also said that unless foreign nations give Cambodians the right to practice law in their countries, no foreigner would be allowed to represent clients at the ECCC.
The statement adds that under bar association law, only the bar can train lawyers and thus should be granted the sole right to approve the content of any training required for ECCC defense lawyers.
On the issue of discipline, Ky Tech said judges should be able to postpone a trial and ask the bar to discipline any unruly defense attorney.
“If we allow judges to punish lawyers, lawyers will lose the right to confront judges and prosecutors in court,” he said.
ECCC Principal Defender Rupert Skilbeck wrote by e-mail that he will have meetings today about the bar association’s letter and declined immediate comment.
Cambodian Defenders Project Director Sok Sam Oeun said some of Ky Tech’s criticisms are valid.
Allowing judges to punish lawyers would be illegal and a violation of the defense’s rights, he said.
He added that Khmer Rouge victims should petition the National Assembly to pass a one-time exception to the bar law, allowing qualified foreign lawyers to practice before the ECCC, in the interest of justice.
But the issues of changing the name and structure of the Defense Unit and not allowing it to train lawyers were groundless, he said.
The Documentation Center of Cambodia also released its comments Thursday. DC-Cam highlighted four issues—witness protection first among them.
“The key to the success of this tribunal will be whether the victims and perpetrators believe they can safely testify,” DC-Cam Director Youk Chhang said by telephone.
DC-Cam praised the inclusion of measures such as witness anonymity and fines for disclosure of protected identities. But it said the rules fail to cover security during the pre- and post-trial stages.
Another concern is the lack of clarity about the statue of limitations for civil law suits. If civil law suits cannot be filed, which DC-Cam says is possible, victim compensation would be ruled out.
DC-Cam also asserts that inconsistencies between ECCC law and the draft rules mean that even if civil suits are allowed and victims win some measure of restorative justice, confiscated assets may be delivered to the state, rather than to victims .
The final concern is the possibility that trials in absentia would be allowed, which DC-Cam asserts would undermine the spirit if not the letter of the ECCC law.
Helen Jarvis, head of the ECCC public affairs office, said the court has so far received more than 10 comments on the rules from people outside the court, plus submissions from within the court itself.
“We expect to receive more [today],” she wrote in an e-mail. All, she added, will be considered.
The judges are scheduled to vote on a final version of the internal rules between Nov 20 and Nov 25.
(Reporting by Prak Chan Thul, Erik Wasson and Erika Kinetz.)