An Ultra Vires Argument Is Needed
The DSS did not err stating that the judges have limited authority to add to the rules of procedure applicable within the Cambodian judicial system. In fact such authority is extemely narrow and limited to the pronouncement of Art. 33 of the ECCC Law which enunciates that
"The Extraordinary Chambers of the trial court shall ensure that trials are fair and expeditious and are conducted in accordance with existing procedures in force, with full respect for the rights of the accused and for the protection of victims and witnesses. If these existing procedure do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standards, guidance may be sought in procedural rules established at the international level".
Warranted as the DSS's statement is, it is regrettable that the DSS did not go far enough to declare the Internal Rules of the ECCC as being a product of the Tribunal's judges acting ultra vires as there is no authority enshrined in the ECCC Law which justifies the breadth of the Tribunal's reach in establishing its own rules of procedure and evidence while it is expressly mandated by law to be utilizing the means of the Cambodian Criminal Procedure (CPC) Code to the extent of its capacity and to the extent to which the CPC does not conflict with the rules established at the international level.