Clerks Going Outside the Law, Experts Say

Clerks in Cambodia often exceed their powers, questioning people in court cases and sometimes even negotiating settlements, according to legal experts and lawyers.

Under the law, these practices should nullify cases investigated in such a manner.

Busy judges sometimes delegate the task of interviewing suspects, witnesses or victims, said Diep Kulam, model court project manager for Legal Aid of Cambodia.

“Sometimes the judges ask the questions, but mostly the court clerks ask the questions by themselves,” Mr Kulam said yesterday. “The law does not allow them to do that, because the law says only the judge can [do interviews].”

Mr Kulam also said clerks occasionally negotiate settlements in cases.

“Sometimes in the civil case, the court clerk…invites the two parties to meet and negotiate,” he said yesterday. “By the law, only the judge can negotiate the case. The court clerk cannot.”

Such negotiations “may be related to corruption,” Mr Kulam said, or may be because the judge has “a lot of work” and passes along the task of negotiating a settlement.

“I suggest that the court clerk not do like that,” he said, pointing to the vulnerability of defendants in such situations.

He added that many Cambodians go along with clerk-led negotiations because they are unfamiliar with the law.

Sok Sam Oeun, executive director of the Cambodian Defenders Project, also said clerks frequently exceed their legal powers.

“It is common in practice,” he said on Monday. He added that such practices are “wrong in principle” and can damage “the reputation of the judiciary.”

They should also nullify cases investigated in such a manner, according to the Criminal Procedure Code. Article 252 says that “the rules and procedures stated in the following articles…are mandatory and shall be complied with, otherwise the activities shall be null and void.”

Among the listed articles is 128, which says a “clerk cannot perform the duties of the investigating judge himself.”

Clerks are tasked with assisting judges, and with keeping court records, according to the law. This typically includes taking notes during interviews by judges.

Justice Minister Ang Vong Vathana and Justice Ministry spokesman Bunyay Narin could not be reached for comment yesterday.

CPP Lawmaker Chea Chamroeun recently filed a complaint accusing a Phnom Penh Municipal Court clerk of impropriety in a lawsuit against a businesswoman, according to Nach Try, his attorney in the case.

Mr Try declined to discuss specifics of the case, but he said “it is wrong if the clerk acts on behalf of a party in negotiations.”

He and other lawyers acknowledged that clerks sometimes exceed their authority.

A clerk has a specific role, explained Tha Thavrak, a lawyer who previously represented the defendant in the lawsuit filed by Mr Chamroeun.

“A clerk is trained differently from a prosecutor and judge,” said Mr Thavrak. “He can only take notes for the prosecutor and judge, but now [clerks] are working on behalf of one side, and it has become the practice.”

“If it is true what has been claimed by Chea Chamroeun, by law the clerk must be wrong,” he added.

According to Voice of America, Mr Chamroeun alleged that Court Clerk Hong Bunhuor tried to act as a middleman for Ing Rithea, a Phnom Penh businesswoman who Mr Chamroeun sued last month for $1 million.

The clerk allegedly proposed that Mr Chamroeun accept a lesser, undisclosed amount or face problems moving his case through the court, according to the US-funded radio service.

Kim Sophorn, the inspection official at the Ministry of Justice, said Friday that his department had questioned the clerk, Mr Bunhuor, over the complaint.

“Mr Bunhuor denied the accusation,” he said. The complaint, he added, was made “against Mr Bunhuor for using harsh words to him and acting as a negotiator in the case.”

Kea Chhay, the current lawyer of Ms Rithea, maintained that clerks can negotiate compensation, but only if a guilty verdict has already been handed down.

“Relating to the compensation, the clerk and the prosecutor can negotiate, but my client has not been found guilty, so they cannot do it yet,” he said.

But Mr Sam Oeun said a settlement negotiated by a clerk would be like the result of mediation by any third party: it would have no legal standing.

“In fact, the clerk has no power on that,” he said.

Mr Chamroeun and Ms Rithea could not be reached for comment. Mr Bunhuor declined to discuss the details of the case.

 

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