International observers of the dispute over Case 003 (and Case 004 by analogy and extension) might be quick to dismiss the National Co-Prosecutor’s refusal to participate in Cases 003 and 004 and her current silence on the matter as yet another act of subservience of the Cambodian judiciary to the executive. While the Cambodian judiciary is notorious for such subservience and the Cambodian executive is equally notorious for exerting the pressure with great frequency, this situation is more complicated than a mere executive interference into the province of the judiciary.
The first question which needs to be answered is what law governs the ECCC proceedings. The law on the establishment of the ECCC (ECCC Law + ECCC Agreement) states that it is the Cambodian law with 3 exceptions spelled out in the law. The judicial officer-created (with no legal authority to do so) ECCC Internal Rules reverberate this pronouncement, at least in letter. The second question is whether under the Cambodian law, the Department of Public Prosecutions is part of the judiciary. Comparative analyses of civil law jurisdictions show that in most cases departments of public prosecutions are a part of the judiciary. Cambodia was established as a civil law jurisdiction and has not been altered significantly enough since to conclude otherwise. Therefore, theoretically, the Cambodian system should have followed the lead of the rest of the countries the judicial systems of which were established on this basis, with the exception of France. This, however, did not happen. The UN Special Rapporteur on Human Rights notes (2010) the ongoing dispute between the Ministry of Justice and the Supreme Council of the Magistracy. In what is much more than a mere contretemps between the two entities, the Ministry of Justice insists on following the French model which places the Department of Public Prosecutions within the executive; the Supreme Council of the Magistracy counterpoints by arguing that “since the prosecutors are judges and judges are independent under the [Cambodian] Constitution, they [the prosecutors] should come under the control of the Supreme Council of the Magistracy. These two irreconcilable positions are the reason for the stalemate in the enactment of a constitutionally-mandated statute defining the role of the prosecutors. In the absence of a law clarifying the matter, there is no legal basis to argue either way. But, there is a way to argue persuasively (albeit without a legal basis) by examining the 100 years of operation of the French model-based judicial system in Cambodia. If undertaken, the development of this argument will take time and academic effort, whereas in the meantime it is a free for all. The executive happens to be the far stronger part of the “all” and to the victor belong the spoils. For reasons of legitimacy, the executive might argue the Ministry of Justice’s position which is sound, even if without legal grounding. If a subsequent statute places the Department of Public Prosecutions within the executive, the leadership of the executive will be able to legally enjoin the prosecutors, as it is done in a great number of other countries, be they civil or common law. The last question to answer is whether the Cambodian executive has broken the law by directing the National Co-Prosecutor not to participate in Cases 003 and 004. The answer to this is simple: it is impossible to break that which does not exist.