Must Justice be Seen to be Done? Public Scrutiny and Participation in the KRT

Must Justice be Seen to be Done? Public Scrutiny and Participation in the KRT
http://www.krtrial.info/showarticle.php?language=english&action=showarticle&art_id=1773&needback=1
Source: Center for Social Development
By: Holly Telerant & Pen Rany
Posted date: 09-07-2007


Everyone is waiting for the drama of the Khmer Rouge Tribunal (“KRT”) to begin. But what many people do not realize is that, in many ways, it has already begun.
As the judges wrangle over the internal rules and observers worry about the integrity of the court, the prosecutors are already deep in the process of gathering the evidence to make their case, and getting ready to forward their files or dossiers to the investigating judges. Although formal legal process will not actually begin until the internal rules governing the KRT are finalized, the pre-trial stage is already well underway. And because the pre-trial period is the heart of the civil law process on which Cambodian law is based, it is imperative that we understand and there be public scrutiny of this period.
The Heart of the Matter: the Pre-Trial Period
Everyone has been looking forward to seeing the most senior and most responsible leaders of the Khmer Rouge (“KR”) regime publicly tried for their past crimes. However, the public trial is bound to surprise some people when it eventually happens. Anyone expecting the Hollywood-like drama of a senior member of the KR being cross-examined by a quick-witted lawyer is likely to be disappointed. This is because the Cambodian justice system follows the French civil law model. In this system, the pre-trial stage is the lengthiest period of the proceedings, where information is gathered, witnesses are interrogated by the investigating judges, and credibility is determined. What happens at this stage dictates who will be charged, what crimes the will be charged with, and what recommendations the investigating judges will make to the trial judges. Eventually, the accused person(s) will stand before a panel of Khmer and foreign judges, and answer the well-documented charges against them. As we wait in the interim, some of the most important dramas and decisions of this historical trial are taking and will take place behind closed doors.
Civil Law vs. Common Law
Unsurprisingly, legal observers in Cambodia sometimes disagree about the kinds of laws that would best serve the KRT and the Cambodian people. This disagreement is really about a choice between the world’s two major legal systems: civil law (or inquisitorial system, prevalent in Europe), and common law (adversarial system, used in thee UK and its former colonies, e.g., the US). Not all civil and common law systems are the same, but they tend to have general principles in common.
Civil Law advocates believe that their system is the most efficient and fair, because it puts its trust in a neutral investigating judge whose job is not to find the guilt of the suspect, but to find the truth before the public trial begins. To find this elusive truth, the judge plays the role of interrogator, investigator, and decision-maker. The investigating judge evaluates the dossier submitted by the prosecutor, and directly questions parties and witnesses. Both the judges and the prosecutors represent the interests of the State, and work closely together, but it is the investigating judge who decides whether the prosecution has provided enough evidence against the accused for a case to go to trial. If s/he feels a prosecution would not be worth while under the circumstances, s/he has broad discretion to dismiss the case. Thus, the strength of this system lies in the power of the investigating judge, who is ideally neutral and investigates evidence without any bias.
Common Law advocates do not place so much trust in the benevolence of the State. Because the adversarial system questions all “truths” that emerge from behind closed doors, it takes the interrogating and investigating roles away from the judge, and gives them to the parties themselves, to debate in open court. There is an emphasis on openness and equality of arms; the public is able to observe the decision-making process as it happens. There is no investigating judge; the pre-trial period is short.
The public trial is the heart of the process. The parties are much more active, challenging the sufficiency of the evidence and cross-examining witnesses to test their credibility. By making the parties equal in status and by ensuring the evidence in legitimate and gathered in a legal way, the courts can help keep the police and the prosecution honest. The facts and law are debated in public, and the ultimate decision is usually made by a jury selected randomly from the community. The jury decides on the facts of the case, and the judge rules on the law. The judge merely acts as a referee, and has the power to impose the sentence.
Unfortunately, neither system is perfect. The civil law system is faulted for neglecting defendant’s rights, while the common law system in criticized for putting defendant’s rights above the truth. The inquisitorial system is praised of its efficiency, while the adversarial system is criticized for it tendency to draw out the length of the trial by invoking procedural technicalities.
Both systems work best within a structure of true checks and balances, where the judiciary is independent from the influence of State leadership. If judges are given unfettered discretion are in collusion with the State with no external forces to counter-balance that power, the defendant faces extreme vulnerability and potential abuse of State power. While the civil law system may work well in a country like France with real consequences for biased judges, countries that lack such safeguards may do well to follow the adversarial system, which recognizes the imbalances inherent in a government prosecution and opens its evidence and legal process to scrutiny.
Pre-Trial Process: The Need for Public Scrutiny
The KRT was established for the Cambodians for a variety of well-considered reason. Not only was it established to bring the perpetrators to justice, but also so that justice could be seen to be done. It was established to set the historical record straight, to stimulate a national discussion, and to begin a long-overdue process of national reconciliation. It is difficult to achieve these goals if the important pre-trial process is conducted completely in private.
The entirety of the KRT process has a 3-year mandate. It is possible that after years of careful pretrial investigation are completed, the public trial itself will not last more than a few weeks. Unit there exist official KRT internal rules, there is no telling what the trial will look like; under the inquisitorial system, the trial itself will not be the testing ground of the evidence. Although the trial will be public, it is entirely possible that there will be no cross-examination of witnesses and only limited public truth-telling. The disputes over the sufficiency of the evidence and the credibility of witnesses will have been addressed secretly in the pre-trial phase. In some cases, even the identity of the charged persons will remain secret during the pre-trial phase. While the need for the security of defendants and witnesses is clear, this secrecy is beyond mere protection: it borders on suppression of information. This trial will lose its significance if it is conducted out of the gaze.
Some mechanisms are in place to inform the Cambodian public about the progress of the KRT, such as its public affairs office and a number of NGO’s outreach efforts, but it is likely that the bulk of the pre-trial process will take place in private.
All of these issues are more important than usual because this trial is more important than usual. This is a trial about past atrocities, brought on behalf of the Cambodian people – so the people have both the need and the right to watch the trial process as it unfolds. Because a case in the civil law system unfolds almost completely before the public trial begins, it is imperative that the KRT institute some kind of formal public communication at the pre-trial stage. Whether this is through a special public hearing of witness testimony or a statement by the investigating judges summarizing the evidence, the pre-trial process in this momentous case must be transparent and open to public scrutiny.
Public Participation: the Involvement of Civil Parties
One significant way the public can be involved in the KRT from beginning to end is as a partie civile or “civil party” to the case. This idea, provided for in Cambodian law and squarely rooted in French civil law, allows a victim to participate in criminal proceedings as a civil complainant to claim damages from an accused. A victim enters the process by filing a complaint with the prosecutor, and if it is relevant to the charges, a victim may potentially have similar rights to that of the defendant, such as access to the dossier and opportunities to be involved in the investigate process.
Although it is generally agreed that it would be impracticable for the KRT to be used as a forum for reparation claims, the provisions permitting a civil party to be closely involved with the process are currently being considered. This is potentially a major breakthrough for victim involvement in the international criminal trials.
A number of NGOs supports the extension of this civil law mechanism to the victims of the KR. It fits well with the idea that a war crimes tribunal should not only seek retributive justice, as in punishing the guilty, but should also provide an opportunity for restorative justice by allowing victims to participate in the proceedings. It also allows victims to be involved as real parties rather than just outside observers. For those individuals who were personally affected by the KR regime but already feel outside the process, the chance to be a civil party to the case has the potential to engage them at a higher level: to make them part of a distinct group they can identify with, with real interests at stake in the trial, rather than theoretical ones. The opportunity this would provide for better outreach in the provinces and greater engagement with the KRT by the Cambodian people is unsurpassed by any other kind of public participation.
Reconciling the Laws in Cambodia
Cambodian law is a patchwork quilt of different traditions, including aspects of the adversarial and inquisitorial systems. Current laws have been influenced by the various international legal scholars who rotate through Phnom Penh and NGOs, offering funding and advice. Although the French relationship with Cambodia has the deepest roots, the foundations of Cambodia’s relatively recent democracy and much of the content of its legal rights derive from common law norms found in the Cambodian Constitution and international instruments adopted by Cambodia, i.e., the International Covenant of Civil and Political Rights.
Cambodia’s inquisitorial legal system provides clear benefits to the administration of justice, such as efficiency, truth-seeking, and the potential for KR victims to be involved with the KRT process as civil parties. However, it should also consider making its secret pre-trial process more adversarial and more open to public scrutiny. In recognition of the important values the KRT seeks to uphold, it would do well to incorporate the best aspects of both legal traditions.

Holly TelerantCSD pro bono Attorney
Pen RanyCourt Watch Project Manager