A New Article on the ECCC (Excerpts): Setting an Example of the Rule of Law by Breaking the Law?
This paper encapsulates an in-depth examination of the legality of the authority invoked by the Extraordinary Chambers in the Courts of Cambodia (ECCC) to create a set of rules of procedure and evidence known as the Internal Rules (IRs). The law which established the ECCC stipulates that the existing Cambodian procedure must apply at all times unless the criteria for three exceptions are met in which case international procedures on the particular matter apply and grants the ECCC no explicit authority to create rules otherwise. Through the application of a test formed of these three exceptions this paper seeks to determine the instances in which the ECCC acted ultra vires its establishment law by seeking unjustified resort in international procedures and inventing its own procedures to supplant those the application of which is statutorily mandated.
The process of adoption of the rules of procedure and evidence known as the Internal Rules (hereinafter ‘IRs’) commenced shortly after the swearing in of the judges of the Extraordinary Chambers in the Courts of Cambodia (hereinafter ‘ECCC’ or ‘Extraordinary Chambers’) and resulted in a protracted debate which went on for eleven months and evinced a deep rift between the international judges of the ECCC and their Cambodian counterparts. The rift essentially developed around the measure of international standards which would be allowed to enter the canvass of the IRs.
This paper will aver that such measure was intended to be minimal and subject to a narrowly-crafted statutory test. This author will therefore argue that the adoption of procedures which override the existing procedures can only be justified if such procedures have failed the foregoing statutory test. Consequently, it will be maintained that the Extraordinary Chambers has acted ultra vires in all instances where the creation of the new procedures has not been necessitated by the existing ones’ inability to meet the requirements of the test.
I. The Statutory Adequacy Test
The law which established the Extraordinary Chambers stipulates that the proceedings before the Court be held on the basis of Cambodian law:
The procedure shall be in accordance with Cambodian law.
[all Chambers of the Court] shall follow existing procedures in place.
This stipulation is reaffirmed in the ECCC IRs which from the outset restates the language of the foregoing laws:
Now therefore the ECCC have adopted the following Internal Rules, the purpose of which is to consolidate applicable Cambodian procedure for proceedings before the ECCC […].
Foreseeing that the confines of existing Cambodian law might be stymieing for an endeavor such as the Extraordinary Chambers the law establishing the ECCC provides for exceptional circumstances in which the application of international procedural standards is permissible:
Where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may be also sought in procedural rules established at the international level.
If these existing procedures 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 [the Chambers of the Court] may seek guidance in procedural rules established at the international level.
The foregoing regulatory approach to the exceptional circumstances in which resort to international procedures is permissible was expectedly corroborated in the ECCC IRs:
[…] and, pursuant to Articles 20 new, 23 new, and 33 new of the ECCC Law and Article 12(1) of the Agreement, to adopt additional rules where these existing procedures 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.
Prior to resorting to the applicable procedural standards established at the international level therefore the law which established the ECCC mandates that the means of Cambodian law be either exhausted or declared inadequate. The Extraordinary Chamber thus must satisfy a disjunctive statutory 3-prong test and demonstrate the existence of one of the following circumstances: either 1. the existing Cambodian procedure does not deal with the matter in question; or 2. the Cambodian procedure does deal with the matter in question, but there is uncertainty of the interpretation and/or application of the relevant procedures; or 3. the Cambodian procedure does deal with the matter in question, but the manner in which it does so is inconsistent with international standards.
The statutory construction of the statutory adequacy test evinces the legislature’s intent to convey the political consensus of granting primacy to Cambodian law while permitting a narrow window of resort to international standards confined to a set of enumerated circumstances. The permission of resort to international standards raises, consequently, raises a question of the sources of international standards to which the Extraordinary Chambers is thus permitted to turn in case of a necessity justified by the test. The law which established the ECCC answers this question by inserting express references to the source of international standards it stipulates be deemed primary:
The Extraordinary Chambers of the trial court shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights.
Due to the ambiguity of the term “international standards”, as envisaged by the law, it might be submitted that it exceeds the confines of the ICCPR and other relevant statutory instruments of international law, and thus is rendered sufficiently expansive to include such international non-statutory sources of criminal procedure as the rules of procedure and evidence of other international and hybrid tribunals, judicial doctrines relevant to criminal procedure, prominent academic writings, etc.
This construction of the “international standards” clause of the law is problematic due to its expansiveness and diversity which, if unfettered, will, to a large extent, attempt to create a statutory foundation by employing antagonistic legal principles as building blocks which emanate from the foregoing sources. This, consequently, is likely to adversely affect the intended narrow construction of prong 3 of the adequacy test which permits a resort to “international standards” in cases where the Cambodian procedure is inconsistent with such standards. In light of this and given the underlying legislative intent of narrowness of the adequacy test, the only tenable interpretation of the meaning of the “international standards” clause left to a reasonable observer is that of a set of standards for which there is little or no contention at the international level.
The relative ease with which the foregoing resolves the issue of “inconsistency” accentuates the intricacies associated with the finding of a tenable interpretation for the “uncertainty of interpretation or application” clause of prong 2 of the adequacy test.
To attempt to achieve a resolution of the matter at hand it can be postulated that “uncertainty” can be viewed through the prisms of the objective and subjective tests. The objective test customarily entails a reasonable person’s attitude or action vis-à-vis the matter at hand, and is thus imputed to any person who comes into interaction with said matter. Applied to the circumstances of the foregoing “uncertainty of interpretation or application” clause, the objective test will determine whether a particular element of the Cambodian criminal procedure is so framed that it might arouse uncertainty of interpretation or application, if applied by a reasonable jurist. This can be, inter alia, ascertained through a baseline study of the particular suspect procedural element’s history of application designed to determine whether uncertainty of its interpretation or application has arisen in the past in the ordinary courts of Cambodia. The subjective test, on the contrary, routinely concerns itself with the beliefs and perceptions of the very persons who come into contact with the matter at hand, and who in the circumstances of the “uncertainty” clause are the judges of the Extraordinary Chambers. The subjective test therefore must examine whether in the opinion of such judges a particular element of the Cambodian criminal procedure is sufficiently ambiguous to raise concerns about the prospects of its efficacious application. Such concerns, however, cannot be raised by any numbers of judges short of a supermajority to maintain the general statutory rule of judicial decision-making at the ECCC:
The judges shall attempt to achieve unanimity in their decisions. If this is not possible, the following shall apply:
a decision by the Extraordinary Chamber of the trial court shall require the affirmative vote of at least four judges;
b. a decision by the Extraordinary Chamber of the Supreme Court shall require the affirmative vote of at least five judges.
The Extraordinary Chambers was therefore in possession of two foregoing tests whose conjunctive or disjunctive application could help determine whether the Court could satisfy itself with the existence of the circumstances of the “uncertainty” prong of the adequacy test. Barring such satisfaction the Extraordinary Chambers would remain confined to the relevant provision of the Cambodian criminal procedure.
Lastly and following the elected course of reverse order, it is submitted that the “existing Cambodian procedure does not deal with the matter in question” clause of prong 1 was intended to be read in the exact manner in which it appears in the law. The scope of the matters which can be reasonably expected to be addressed in the Cambodian criminal procedure was by no means intended to be elastic, but limited to the matters of procedure a qualified observer would expect to find in a comparable judicial system (i.e. a civil law system). It would thus be abusive of the foregoing principle to attempt to supplement the existing Cambodian criminal procedure with the means of a judicial system alien to it (i.e. a common law system).
This section will examine whether there are unreported discrepancies between a combination of the law which established the Extraordinary Chambers and the Cambodian criminal procedure (hereinafter ‘the statutory means’) and the text of the IRs. To this effect, the subsequent narrative will undertake a bifurcated approach to the said discrepancies into the instances of the use of extrastatutory means to create additional organs of the Court, and the instances of the use of the same to supplant rules established by the Cambodian procedure with those adopted at the international level.
As per the foregoing discussion, the IRs has supplanted the BAKC with the DSS as the main service-provider and rule-setter in the realm of retention of counsel for the purposes of proceedings before the ECCC. In this function and pursuant to the relevant provision of the IRs the DSS has set out its own rules of qualifications of counsel which markedly differ from those of the BAKC. These two sets of qualification rules bear one apparent similarity which is that of differentiating between the criteria which apply to domestic counsel and those which apply to foreign lawyers. Thus, to be admitted to the practice of law under the BAKC rules a domestic applicant must demonstrate the following:
· [that he or she] shall have Cambodian nationality
· [that he or she] shall have a Bachelor of Law degree or a law degree declared equivalent
· [that he or she] shall have a certificate of professional skills of a lawyer [issued] by the Lawyer Training Center. No such certificate shall be required for persons who have received a Bachelor of Law degree and who have been working in the field for over 2 years, lawyers who originally had Cambodian nationality and who have been registered
in the Bar of a foreign country, and those who have received a Doctorate of Law degree.
· [that he or she] shall never have been convicted of any misdemeanor or felony, nor imposed any disciplinary action or administration penalty upon, such as removal from any function or dismissal for any act contrary to honor or any act of moral turpitude [nor] have been declared personally bankrupt by a court.
The foregoing qualifications are, however, insufficient for an applicant to be admitted to the practice of law before the Extraordinary Chambers to effect such admission a domestic applicant must demonstrate the following:
· [that he or she] should not have been convicted of a serious criminal or disciplinary offense considered to be incompatible with defending a suspect, charged person or accused before the ECCC.
· [that he or she] shall be a member of the Bar Association of the Kingdom of Cambodia.
· [that he or she] shall have established competence in criminal law at the national or international level.
The differences between the lawyer qualification rules set out by the BAKC and those established by the DSS become more pronounced when the sets of such rules which apply to foreign counsel are examined. Thus, to be admitted to the practice of law under the BAKC rules a foreign applicant must demonstrate the following:
· [that he or she is] registered by the Bar of a foreign country and [is] authorized by the country of [his or her] origin to practice the legal profession.
· [that he or she] has sufficient qualifications.
· [that his or her] country of origin provides this same possibility to Cambodian lawyers.
The qualification rules set out by the DSS, however, did not build on those of the BAKC, but fully supplanted the latter with the requirement that foreign counsel demonstrate the following:
· [that he or she] should not have been convicted of a serious criminal or disciplinary offense considered to be incompatible with defending a suspect, charged person or accused before the ECCC.
· [that he or she] is a current member in good standing of a recognized association of lawyers in a United Nations member state.
· [that he or she] has a law degree or an equivalent professional qualification.
· [that he or she] has at least ten years working experience in criminal proceedings as a lawyer, judge or prosecutor, or in some other similar capacity.
· [that he or she] has established competence in criminal law at international or national level.
· [that he or she] is fluent in Khmer, French or English.
· [that he or she] is authorized by the Bar Council of the Kingdom of Cambodia to practice before the ECCC.
The foregoing collation of qualification rules set out by the BAKC and the DSS, respectively, evinces that the DSS qualification rules set out for domestic UNAKRT-List lawyers are marginally higher than those set out by the BAKC as requirement for practice before the Cambodian courts; the DSS qualification rules for foreign UNAKRT-List counsel are notably higher than those set out by the BAKC as requirement for practice of foreigners before the Cambodian courts and the DSS qualification rules set out for domestic UNAKRT counsel.
Such discrepancies between the two foregoing sets of lawyer qualification rules are the upshot of the deviations from the BAKC rules introduced to the lawyer selection process by the DSS. As there is no evidence of explicit statutory authorization of such deviations, the grounds for their introduction must be sought in the aforementioned adequacy test. As the existing Cambodian procedure clearly deals with the matter of qualification rules of lawyers and there seems to be no foreseeable uncertainty of the interpretation or application of such rules, it leaves the DSS the harbor of the third prong which authorizes the foregoing of the relevant provisions of the Cambodian procedure if they are inconsistent with international standards. To ascertain whether the resort to the third prong is tenable it is salient to examine the lawyer qualification rules established at the international level.
To this effect, the defense counsel qualification rules of the four currently existing international and hybrid tribunals will be examined and include the qualification rules of the following tribunals: the International Criminal Tribunal for the former Yugoslavia (hereinafter ‘ICTY’), the International Criminal Tribunal for Rwanda (hereinafter ‘ICTR’), the International Criminal Court (hereinafter ‘ICC’), the Special Court for Sierra Leone (hereinafter ‘SCSL’).
The ICTY defense counsel qualification rules have undergone a series of amendments since the Tribunal’s establishment in 1993. Pursuant to the qualification rules set out in the current version of the ICTY Directive on the Assignment of Counsel comprise an applicant must demonstrate that:
· [he or she] is admitted to the practice of law in a State, or is a university professor of law;
· [he or she] has written or oral proficiency in one of the two working languages of the Tribunal;
· [he or she] possesses established competence in criminal law and/or international criminal law/international humanitarian law/international human rights law;
· [he or she] possesses at least seven years of relevant experience, whether as a judge, prosecutor, attorney or in some other capacity, in criminal proceedings;
· [he or she] has not been found guilty or otherwise disciplined in relevant disciplinary proceedings against him [or her] in a national or international forum, including proceedings pursuant to the Code of Conduct, unless the Registrar deems that, in the circumstances, it would be disproportionate to exclude such counsel;
· [he or she] has not been found guilty in relevant criminal proceedings;
· [he or she] has not engaged in conduct whether in pursuit of his profession or otherwise which is dishonest or otherwise discreditable to counsel, prejudicial to the administration of justice, or likely to diminish public confidence in the International Tribunal or the administration of justice, or otherwise bring the International Tribunal into disrepute;
· [he or she] has not provided false or misleading information in relation to his qualifications and fitness to practice and has not failed to provide relevant information;
· [he or she] has indicated his or [or her] ability and willingness to be assigned as counsel by the Registrar to any suspect or accused who lacks the means to remunerate counsel, under the terms set out in this Directive; and
· [he or she] is a member in good standing of an association of counsel practicing at the Tribunal.
The tribunal with which the ICTY is often compared in the literature, the ICTR, has adopted a significantly less inclusive set of qualification rules pursuant to which an applicant must demonstrate that:
· [he or she] is admitted to practice law in a State, or is a professor of law at a university or similar academic institution and has at least ten years’ relevant experience;
· [he or she] speaks one of the working languages of the Tribunal, namely French or English;
· [he or she] agrees to be assigned as Counsel by the Tribunal to represent a suspect or accused;
· [his or her] name has been included in the list envisaged in Rule 45 (A) of the Rules; and
· [he or she] undertakes to appear before the Tribunal within a reasonable time, as specified by the Registrar.
The SCSL, whose statutory prescription has linked it to the Rules of Procedure and Evidence of the ICTR, has, however, adopted a different set of qualification rules than that of the ICTR pursuant to which an applicant must demonstrate that:
· [he or she] speaks fluent English;
· [he or she] is admitted to the practice of law in any State;
· [he or she] has at least 7 years of experience as Counsel;
· [he or she] possesses reasonable experience in criminal law, international law, international humanitarian law or international human rights law;
· [he or she] has indicated [his or her] willingness and availability to be assigned by the Special Court to an Accused or Suspect; and
· [he or she] has no record of professional or other misconduct, which may include criminal convictions.
The ICC, anticipated by many to become a model of criminal justice, has set out the counsel qualification rules pursuant to which an applicant must demonstrate that:
· [he or she possesses] established competence in international or criminal law and procedure;
· [he or she possesses] the necessary relevant experience in criminal proceedings, whether as a judge, prosecutor, advocate or in another similar capacity; the necessary relevant experience as described in Rule 22 must amount to at least ten years.
· [he or she possesses] excellent knowledge of and [is] fluent in at least one of the working languages of the Court;
· [he or she] should not have been convicted of a serious criminal or disciplinary offense considered to be incompatible with the nature of the office of counsel before the Court.
It is important to begin the comparative part of this analysis by noting that the ECCC has thus far been the only international or hybrid criminal tribunal to set out separate qualification rules for domestic and foreing counsel. This is of particular importance to the subsequent analysis due to the foregoing finding which has identified express and vast differences between the two sets of counsel qualification rules established by the ECCC and designed to place a notably heavier burden of qualifications upon the foreign applicants. The qualification rules established by the DSS for domestic counsel therefore are marginally higher than those established by the BAKC, but palpably lower than those established at the international level for the reason of having elected not to set the minimum experience requirement for domestic counsel, the opposite of which is the customary practice of the other tribunals in question, as evinced by the foregoing. This contention, however, is moot for the purposes of this analysis as the counsel qualification rules established by the BAKC equally do not bear an experience requiremnet to practice law before the Cambodian courts. Nor do the BAKC qualification rules require “established competense in criminal law” to represent suspects and the accused in criminal cases. The DSS, however, has chosen not to abide by the principle of non-imposition of such rule enshrined in the Cambodian procedure in which case the Section did not err as most international and hybrid criminal tribunals have set out a requiremen of “established” or “reasonable” competence in some form of criminal law thus justifying the Section’s availing itself of the grant of the third prong of the adequacy test.
On the contrary, no such justification can be found at the international level for the exclusion of professors of law and other legal academics, foreign or domestic, from the ECCC process. In fact the cousel qualification rules established by the BAKC exempt doctorate of law holders from the legal certification requirement in which manner they resonate with the rules established at the international level which allow “university professors of law” and “professors of law at universities and similar academic institutions” to practice law before the respective tribunals as independent counsel or assist such cousel thus creating a healthy preponderance in favor of such practice. The DSS’s opting out of a compliant provision of the existing Cambodian procedure and electing to resort to the relevant minority practice at the international level has effectively rendered the resort to the grant of the third prong of the adequacy test fatal.
Further, the DSS has ignored the BAKC’s quid pro quo rule for qualification of foreign counsel which permits the admission of foreign counsel to the practice of law in Cambodia only if the states of nationality of such counsel grant the same privilege to Cambodian lawyers. It is important to note that in order to determine whether the DSS’s resort to international standards was warranted in this circumstance an acknowledgement of the fact that no other tribunal has placed itself within the purview of a national bar association with the exception of the SCSL. The latter therefore is presently the sole source of authority on the international standard in question. Thus, the DSS’s choice of non-inclusion of the said requirement in its counsel qualification rules is justified by the international precedent established to the same effect by the SCSL which equally had eschewed such requirement. The foregoing demonstrates that in this circumstance the DSS’s resort to the grant of the third prong of the adequacy test was justified by the existence of an international standard to the contrary of the Cambodian procedure.
Finally, the DSS Administrative Regulations has altered the BAKC Statute’s language barring persons found guilty or responsible in virtually any type of legal or administrative proceedings (including personal bankrupsy) to limit such grounds for rejection of placement on the DSS list of counsel to “serious criminal or disciplinary offense[s] considered incompatible with defending a [client]”. There consensus or approximation has been reached on this matter at the international level where positions of different tribunals range from one which bears significant resemblance to the inclusive language of the BAKC to one with a similar content but including a proportionality test which vests the authority of determining whether the particular offense is of sufficient gravity to merit a rejection the applicant’s request of placement on the list of counsel to that which virtually verbatim restates the aforementioned language of the DSS. It is thus posited that the articulation of the international standard, as it presently stands, on the matter in question is inconclusive which renders it inconducive to extraction and placement in a position of primacy in domestic or hybrid jurisdictions vis-à-vis the relevant principles developed to this effect at the domestic level.
The drafting of the ECCC IRs aroused a notable degree of interest among members of civil society who responded to the Court’s call to submit comments and observations on the developing draft. The comments contributed, as result, cumulatively addressed a range of issues of interest to their respective authors, regrettably, eschewing the question of the source from which the Court had derived authority to create such IRs ab initio. This omission might particularly strike a reasonable observer as inconsequential considering the amount of expertise in the area of international criminal justice some of the authors of such comments demonstrated. This expertise, however, failed to result in an observation that all other international and hybrid criminal tribunals derived the authority to establish their respective rules of procedure and evidence from the relevant statutory pronouncements whose authorship and endorsement were not those of the judicial officers of these tribunals. This silence on the part of civil society, by design or omission, has resulted in the broad endorsement of the Court’s most notable action ultra vires the law to date. This upshot of the process of advocacy before the ECCC mounted by the various groups of civil society is particularly unfortunate if seen against the backdrop of these groups’ proclaimed anticipation of this Court’s contribution to the building of the rule of law in Cambodia. Furthermore, it is particularly ironic that while extolling the positive effects the Court is expected to have on the Cambodian system of criminal justice, none of these groups have made a single reference to the existing Cambodian legal procedure in their comments.
This paper sought to rectify these inadequacies of expert participation in the proceedings before the ECCC. To this effect, a thorough statutory test-based analysis of the IRs was undertaken with the intention of identifying every instance in which the ECCC acted ultra vires the law to create the relevant provision of the IRs in deviation from the existing Cambodian procedure. The foregoing narrative reflects the particulars of such analysis which has identified a large number of instances of ultra vires action of the Court for which, in most cases, there is no viable justification which can be found in relevant international standards. It is thus concluded that the Court has created its IRs by altering a significant number of provisions of the Cambodian procedure with no statutory authority to do so and while acting sua sponte.
Besides making this misstep on what was anticipated by many would be the road to the rule of law for Cambodia, the process of creation of the IRs ultra vires the law has had a palpable affect on the Court’s ability to live up to its timeline. Furthermore, it must be noted that the exorbitant consumption of time and resources which were expended to create the foregoing ultra vires rules of the Court are a direct root cause of the ongoing financial constraints which exist at the Court at the time of writing of this. In addition, this has exacerbated the length of detention for at least one suspect and placed the brunt of living in constant anticipation of arrest and detention on the other four suspects. Most important, perhaps, the presently impugned decision of the ECCC to create the IRs has stripped many of those Cambodians who are advanced in years of the opportunity to live to see the conclusion of the most disputed period of their country’s recent history.