A Jail Garb Break-through

Editorial

Stan Starygin


Be the final outcome of Kaing Guek Iev (alias ‘Duch’)’s hearing what it may, there is one dimension that this hearing has already added to the Cambodian judicial process – provided the judges of the ordinary Cambodian courts stick by it once the ECCC closes doors for business – the accused, this time, appeared in court clad in plain clothes rather than the usual for Cambodian courts jail garb.

Strong arguments of prejudice against the defendant's right have been made against compelling him/her to wear a jail garb in several domestic jurisdictions prior. In the United States, for example, the US Supreme Court had to answer the question of compulsion to wear a prison garb in Estelle v. Williams where the Court held that the state's exercise of this type of compulsion prejudiced against the rights of the accused reasoning that (1) it would be prejudicial toward the accused as it would be a “constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment” and (2) that “compelling an accused to wear jail clothing furthers no essential state policy”. The Court, therefore, held that this compulsion goes against the very essence of the Due Process Clause of the US Constitution, however, providing an exception for situations where an accused does not object to wearing the garb, in which case no violation would be committed by the detaining authority. In Thailand, there is a procedural rule which allows an accused to wear plain clothes, however, as a matter of practice, detainees are rarely – if ever – informed of this option which results in the accused almost always wearing jail garbs at trial in Thai courts. In Cambodia, there is no particular rule providing for a possibility of wearing plain clothes to court, if the accused has been detained in pre-trial prior which makes the authority resort to the prison procedure which mandates that garbs be worn at all times and does not mention any exceptions for the time of the accused’s appearance before the judge. At the international level, this issue has been addressed since the commencement of the hearings at the International Military Tribunal (IMT) in 1945 and was resolved in favor of the accused wearing clothing of his/her choosing.