by Stan Starygin
Although one of prior report on this blog named Michiel Pestman as the person who was denied a swearing-in ceremony by the Bar Association of the Kingdom of Cambodia (BAKC), it was in fact another ECCC defense attorney, Victor Koppe, whose license to practice law in Cambodia is now in abeyance. The Cambodian Daily reported that Mr. Koppe was informed by the Appellate Court that his application would be considered at an unspecified date in the future ("Bar Delays Dutch Lawyer's Admission"). BAKC pointed out that the reason for this delay -- or possible rejection altogether -- of Mr. Koppe's application is the fact that he had signed a document and therefore acted as a lawyer without having been formally sworn in by the Appellate Court. Mr. Koppe doesn't deny the BAKC's allegation pertaining to the signing of a document but argues that since he felt that "the swearing-in [was] rather a formality" he chose not to wait until after the formal procedure was conducted and start acting as a lawyer prior to that. He doesn't believe his application should suffer from this action and refers to the content of a motion he had filed jointly with Michiel Pestman just a few days ago and which presents a peremptory challenge of Judge Ney Thol. He was quoted as saying that "of course they [BAKC] are basing themselves on a technicality but it's the background that is important". Which of these arguments is more important, all things considered, is in the eye of the beholders in who in this case are numerous and who hold disparate and irreconcilable opinions on the matter.
This situation presents quite a predicament for all involved and those interested in the comings and goings at the court. First, it is plain to see how Victor Koppe might have a point arguing the the Appellate Court's most recent action is linked to his and Michiel Pestman's motion to move Judge Ney Thol. This is not the first time the BAKC is acting in support of powers that be as it has been accused of partiality numerous occasions in the past. All Cambodia and tribunal watchers have a fairly good idea about what had happened and how this refusal to swear Koppe in had transpired. Second, regardless of what triggered the current impasse, the BAKC's argument is clear and, on the face of it, flawless. Koppe's technically argument is not only untenable but goes against the grind of the practice of law. It usually used to be laymen's prerogative to refer to particular provisions of the law which they subjectively perceived as unimportant or not going to the fact of a case as they saw them calling them with a pejorative created for this purpose, 'technicality'. If lawyers start referring to certain provisions of legla procedure as 'technicality', that's how we will know the legal profession is in trouble and needs to be rescued. Which argument should have the upper hand is in the eye of the beholders who are in this case numerous and who hold disparate and irreconcilable opinions.