Cambodian judges at the Extraordinary Chambers in the Courts of Cambodia said Thursday that they will not participate in the Khmer Rouge tribunal if the Cambodian Bar Association is excluded from the court’s administration.
The ECCC’s international judges announced Tuesday that they would seek to exclude the bar if by the end of this month it has not reduced the fees it is seeking to impose on foreign lawyers practicing at the court.
“If [the international judges] make the rules excluding the Bar association, all Cambodian judges will not participate with them,” ECCC Supreme Court Chamber President Kong Srim said on Thursday.
Excluding the bar could be unlawful, he said. “I don’t dare do anything illegal,” he added. “At our tribunal, the ECCC in Cambodia, Cambodian law must be respected as the priority.”
ECCC Supreme Court Chamber Judge Yar Narin agreed.
“It is the agreement of all Cambodian judges,” he said.
ECCC Trial Chamber President Nil Nonn said he would follow Kong Srim’s lead.
“Kong Srim is my boss. If the boss goes anywhere, I go there too,” he added.
The fees sought by the bar, which amount to $4,900 for the first full year of work, could reduce the tribunal’s pool of willing defenders or dissuade others from representing clients for free, conditions that could create unfair trials, the international judges said Tuesday.
The international judges also said that the failure to agree on the fees caused them to decline to call an April 30 plenary session to approve the court’s crucial internal rules.
The judges, however, said that they would review any new proposal by the bar to end the impasse before the end of the month.
Bar President Ky Tech declined to comment Thursday. However, Ly Tayseng, the bar’s secretary-general, said the bar council would likely have no time to meet to discuss the fee issue before the end of the month.
Thursday’s bar entrance examinations, two weeks of subsequent corrections, the upcoming Khmer New Year and oral examinations April 23 and 24 will likely leave the 19-member bar council little time to consider the ECCC’s ultimatum, he said.
“Unless you have a clear reason to convince the bar council, I don’t think the bar council will reverse their position,” Ly Tayseng said. The international judge’s demands are “extremely unreasonable,” he said.
Since the international judges asked March 16 for a reduction in the proposed fees, the bar council had met only once, March 19, but did not discuss the fees, Ly Tayseng added.
Canadian Ambassador Donica Pottie said she met with Ky Tech on Monday to ask him to reduce the proposed fees.
“I urged him to be flexible and reconsider the fees,” she said, describing the meeting as a “calm exchange of views.”
ECCC donor representatives are leaning in the direction of the international judges, she added.
“We as a group tend to respect the international judges’ view that the fees are high enough to be a barrier to equality of arms” between prosecutors and defense lawyers, she said.
Ky Tech provided several reasons for requiring the high fees of foreign attorneys, Pottie said. These include services such as a proposed Cambodian law library to be provided for the use of foreign ECCC attorneys, as well as differences of income between foreign and Cambodian lawyers, Pottie said.
ECCC Trial Chamber Judge Thou Mony said the fees are paltry in comparison to the high UN salaries foreign defenders would likely earn.
“The fees, if compared to their salaries, are not expensive,” he said. “Their salaries are $30,000, $40,000 and $50,000 per month.”
He declined to say if he would boycott the tribunal in the absence of the bar but said the law required the bar’s presence.
Rupert Skilbeck, principle defender in the ECCC’s Defense Support Section, said senior foreign defense attorneys would be paid the UN’s “Professional Grade 5” level, which typically requires 10 years’ experience.
Starting annual salaries at that level range between $73,975 and $79,628 per year, according the UN’s Office of Human Resources Management. Employees also receive country-specific, cost-of-living bonuses.
Foreign ECCC defense lawyers will likely be paid a daily rate based on the annualized salary as there is no guarantee a defender will work for a full year, according to tribunal spokesman Peter Foster.
Skilbeck said discussions with the bar were ongoing despite the week’s public disagreements.
“We’re still discussing ideas and concepts,” he said. “We’ll keep doing that as quickly as we can with an eye to the tribunal’s need to move forward as quickly as possible.”
ECCC Co-Investigating Judge Marcel Lemonde said the comments from the Cambodian judges were to be expected.
“It’s no surprise. The position of the Cambodian judges is not the same as that of the international judges,” he said, adding that a quick resolution to the disagreement was essential.
“The international judges are certainly not willing to accept another delay,” he said.