Following an order last month threatening to sanction defense lawyers at the Khmer Rouge tribunal for publishing legal documents on the Internet, prosecutors have argued that the court should consider liberalizing access to information, according to a document made public by the court Wednesday.
Charging misconduct and interference with the administration of justice, Co-Investigating Judges Marcel Lemonde and You Bunleng last month ordered Michael Karnavas and Ang Udom, defense lawyers for former Khmer Rouge Foreign Minister Ieng Sary, to remove any documents from their website that the court had not already published. The judges said this violated the secrecy of Ieng Sary’s investigation.
Court monitors, who have consistently complained of a lack of transparency at the court, defended the Ieng Sary team, saying the documents that they had published, which concerned the possibility of bias among investigators and their client’s frail health, should be made public.
In an appeal before the Pre-Trial Chamber, the defense said Ieng Sary could waive his right to confidentiality, and that the court’s selective publication of documents amounted to discrimination against the defense.
In a response filed March 27, the tribunal’s international Co-Prosecutor Robert Petit and Cambodian Deputy Co-Prosecutor Yet Chakriya said the order should be sent back to Lemonde and You Bunleng for review and that Karnavas and Ang Udom should be heard before any consideration of sanctioning them.
New guidelines on publishing information may be desirable, they added.
“Inherent in the fundamental right to be heard and to a reasoned decision pursuant to that hearing in a public proceeding is the right of a party to the public disclosure of its submissions before the judicial authority,” the prosecutors wrote. “This allows an independent observer to assess the arguments on the parties on which the judicial body based its decision.”
The prosecutors also noted that the defense had not been given the opportunity to explain themselves before the order was made public.
“The co-prosecutors note that there is no accusatory document on record that identified in detail the offending acts, stated that those acts were done ‘knowingly and willfully’ and how this amounted to interference with the administration of justice,” they wrote.