Cambodian attorney Say Bory, now representing former Khmer Rouge head of state Khieu Samphan before the Extraordinary Chambers in the Courts of Cambodia, has traveled from one sanctum of Cambodian history to another.
He served in then-Prince Norodom Sihanouk’s government in the 1960s, studied law in Paris, returned to Cambodia under the wing of Son Sann’s faction in 1992, helped write Cambodia’s Constitution, was the founding president of the Bar Association of the Kingdom of Cambodia and a member of the Constitutional Council, and now serves as an adviser to retired King Sihanouk.
Now in private practice, Say Bory keeps his office in a quiet villa in Phnom Penh’s Chamkar Mon district. A lush garden in front bursts with red birds of paradise, peach bougainvillea and orchids hanging in the shade. But this is a thin and recent calm. With influence, inevitably, came exile.
Say Bory, who held a variety of government posts in the 1960s, left Cambodia for Paris in October 1971, not long after Lon Nol seized power. He was 31. He would not return for 21 years.
A refugee, he took on a variety of jobs in business and politics, including, he said, working as a legal counselor for housing for former French President Jacques Chirac when he was mayor of Paris.
Evenings, he studied law at the University of Paris 1 Pantheon-Sorbonne, eventually earning a doctorate.
Say Bory said he did not know renowned attorney Jacques Verges—now his partner on Khieu Samphan’s defense team—during his Paris years, except by reputation. “He was a big TV star,” he said of Verges.
Say Bory said he also worked with Son Sann to try and reinstate Norodom Sihanouk as head of state, eventually joining the Khmer People’s National Liberation Front.
In December 1992, after the adoption of the Paris Peace accords, he finally returned to Cambodia.
“I missed my country. I was sad. I just wanted to come back and build up my country,” he said.
After the 1993 national elections, he became minister of relations with Parliament and helped the National Assembly write the Constitution, he said.
He retired in 1995 to become the first president of the Bar Association of the Kingdom of Cambodia. “It was the first step to helping the country get rule of law,” he said.
In 1998, his term was up, and then-King Sihanouk appointed him to the Constitutional Council, where he served until 2004.
In 2005, he became a special adviser to the retired King, and it was in this capacity that he ended up in exile once more, for six months, this time for his opposition to a controversial border treaty Prime Minister Hun Sen signed with Vietnam.
He now recalls the episode with a wry chuckle, calling it a “misunderstanding.”
He emphasizes that he is not defending the Khmer Rouge regime before the tribunal, but a man.
“I detest the Khmer Rouge regime, which has killed my father and my mother,” he said. His father, a veterinarian, and his mother died during the evacuation of Phnom Penh, he said.
“I don’t defend the Khmer Rouge regime, or the regime of Pol Pot,” he said. “I defend the rights and justice for one individual: Khieu Samphan. Only this.”
He maintains that his client is innocent and does not bear individual responsibility for the horrors of the Khmer Rouge. “Khieu Samphan is accused because Khieu Samphan is a member of the Communist Party of Kampuchea. Khieu Samphan is accused because he was head of state of Democratic Kampuchea. He is not accused because he has killed someone or ordered the military to kill someone,” he said.
Say Bory said he has seen no problems at the court so far, save the translation backlog. Khieu Samphan stopped cooperating with the court last month, after Verges dramatically declared at a closed hearing that the failure to translate the case file into French was an offense against both the French language and the defense.
In fact, many documents have yet to be translated into English as well, Say Bory and court officials say.
“It’s the same difficulty for the prosecutors. In the office of the prosecutors, many people speak English. Not all Khmer texts have been translated into English,” Say Bory said.
Lawyers are now sorting through the thick case file to see which documents must be translated in their entirety and which—like a 600-page list of names—can be left aside, ECCC Principal Defender Rupert Skilbeck said.
Say Bory said he sees the ECCC as one more chapter in the unfolding story of Cambodian justice, which he has long sought to bolster.
“The tribunal is important, first of all, to give justice to victims,” he said. “But if the tribunal does not function well, it is quite the contrary. That’s to say, victims won’t find justice, accused persons won’t know justice either, and the Cambodian people will remain frustrated.”