The defense for Brother Number 2 Nuon Chea have joined victim lawyers at the Khmer Rouge tribunal in attacking the court’s procedural rules, saying they are unconstitutional and may require review by the Constitutional Council.
Crucial to the court’s operations, the rules govern nearly every aspect of the Khmer Rouge tribunal’s work and were adopted in a yearlong process fraught with internal disagreement.
However lawyers for both victims and the defense say the rules have been progressively revised to limit the rights of victims and defendants appearing before the court.
Civil party lawyers on Oct 13 asked the court’s Pre-Trial Chamber to reconsider an August decision in which it stated that the internal rules were a higher authority than the recently adopted Criminal Procedures Code, which now applies in other Cambodian courts.
Recent changes to the rules have limited defendants rights of appeal and, unlike the procedures code, do not allow victims to join a case once trial has started or to appeal against final orders by the tribunal’s co-investigating judges, which either indict or release Khmer Rouge suspects.
In their pleading filed Oct 28, Nuon Chea’s lawyers said that the tribunal does not have the power to create its own laws and that by attempting to do so it risked becoming a rogue within the Cambodian legal system.
“[T]he rules were neither promulgated nor endorsed by the National Assembly,” lawyers Son Arun, Victor Koppe and Michiel Pestman wrote.
“[Q]uite simply, the rules do not have the force of law in Cambodia, and their treatment as such amounts to a constitutional violation,” they said.
“Such disregard for established Cambodian procedures threatens to transform the [tribunal] from a domestic tribunal into a feral one,” they added, noting that “feral” is defined as “having reverted to the wild state, as from domestication.”
The lawyers said the court should either apply domestic procedures before the rules or refer the rules to the Constitutional Council for review.
In an Oct 24 response to the civil parties, prosecutors defended the court’s right to put its own rules ahead of domestic procedures, calling the rules a “special law for this special, internationalized tribunal.”
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