The Khmer Rouge tribunal’s Defense Support Section has asked the Bar Association to clarify an order issued Friday that places conditions upon lawyers who wish to speak with the media and threatens them with penalties such as disbarment if such conditions are not obeyed.
“The Defense Support Section is currently seeking clarification from the Bar Association,” the court’s legal communications officer, Lars Olsen, wrote in an email on Wednesday.
Since its inception, the Extraordinary Chambers in the Courts of Cambodia (ECCC) has heard one case and is in the midst of a second. Over that time, both international and national lawyers have spoken regularly to the media about their cases and the court itself.
But Friday’s Bar Association edict that lawyers must seek approval from the body before communicating with the media raises questions as to how those at the ECCC could be affected, especially when talking about issues such as corruption and political interference in the court’s proceedings.
Michael Karnavas, the international co-defense lawyer for Khmer Rouge Foreign Minister Ieng Sary, said Wednesday that the edict is “chilling” in its scope and sets a dangerous precedent as to how legal professionals and the media can engage with one another from now on.
“The decision to effectively muzzle lawyers from commenting on cases, especially ones which cry out for transparency and where the application of the law and procedure is suspect and contrived in order to achieve extraneous results, is chilling,” he said in an email.
All international lawyers operating at the tribunal are beholden to the Bar Association of the Kingdom of Cambodia (BAKC), of which they are members. But Mr. Karnavas said he saw the order being used as a means of having lawyers’ opinions “sanitized and stifled.”
“It impacts all lawyers, including the international lawyers who are members of BAKC practicing before the ECCC,” he said.
“It is always dangerous for a free and democratic society when its Bar Association, which should be the vanguard in championing freedom of expression, transparency, and the full and faithful application of the rule of law, abdicated its role and retreats from the moral high ground.”
Legal experts in the country have denounced the Bar Association’s edict as a violation of the freedom of speech.
“This decision could, regrettably, prove useful to ECCC judges (and prosecutors) in restricting any future criticisms of decisions or actions,” Mr. Karnavas added.
The ECCC has been on the receiving end of some serious and inflammatory allegations—among them corruption, kickbacks and political interference—and not just from outsiders.
Despite the fears over the order’s implications for lawyers at the Khmer Rouge tribunal, co-prosecutor Andrew Cayley said that lawyers, judges, prosecutors and civil party representatives have “functional immunity from criminal and civil prosecution for words spoken or written and from all acts carried out by them in the performance of their duties” because of a special agreement in place between the government and U.N.
“Therefore, if any words spoken were deemed to be in contravention of the Cambodian Bar Rules, the agreement should provide protection to the individual from any legal process as long as he or she was acting in the furtherance of their duties,” Mr. Cayley said in an email, adding that international standards “vary significantly” when it comes to how freely lawyers may speak about ongoing cases.
“However, speaking to the press in a manner that assists in the public understanding of the various stages of the legal process is considered a useful and acceptable practice,” he said.
Bun Honn, president of the Bar Association could not be reached for comment on Wednesday.
Former Civil Party lawyer Silke Studzinsky, who resigned from the court last month, said that the Bar Association’s Article 15 in the Code of Ethics—which stipulates that lawyers must not give false information or engage in self-promotion—already “limited the possibility of lawyers to speak.”
“I always said that lawyers have the freedom to express themselves on their cases or clients or court, and of course when it is not violating rules of confidentiality,” she said by telephone from the Netherlands. “Otherwise, it would be a violation of fundamental principles,” she added.
According to Anne Heindel, legal adviser to the Documentation Center of Cambodia, the new order could lead to lawyers speaking out less due to fear of possible reprisals from the Bar Association.
“They’re more likely to be wary and subject to sanctions,” she said, adding that Cambodian lawyers may feel the impact more than their international counterparts at the court.
