Friday, April 27, 2012
Appeal Judgment of the ECCC Supreme Court Chamber in Case 001: More on the Summary of the Appeal Judgment and in Greater Detail (In Several Parts): Intro
TWO AND A HALF WEEKS AGO THE SUPREME COURT PUT OUT THE FULL TEXT OF THE APPEAL JUDGMENT IN CASE 001. I COMMENTED ON THE SUMMARY OF THE JUDGMENT WHICH WAS PUBLISHED IN FEBRUARY. I AM USING MY COMMENTS ON THE SUMMARY BELOW AND ADDING INSERTS BASED ON THE FULL TEXT OF THE JUDGMENT. THE INSERTS APPEAR IN RED (LET'S SEE HOW WE DO ON COLOR) UPPERCAPS THROUGHOUT THE TEXT WHICH WILL BE PUBLISHED ON THIS FORUM IN INCREMENTS AND THEN IN A MORE CONGEALED AND SIGNIFICANTLY SHORTER FORM AS A LAW REVIEW ARTICLE. THESE COMMENTS ARE THOSE OF AN OBSERVER AND DO NOT REFLECT THE OPINIONS OR AGENDAS OF ANY INSTITUTION.
Delivering its judgment on the appeal in Case 001 the Supreme Court Chamber (SCC) struck down the Trial Chamber (TC)-ordered remedy for the violation of the fundamental rights of the accused through illegal imprisonment prior to the establishment of the ECCC.
In finding in this manner the SCC disregarded every possible shred of applicable fact and law. The SCC’s decision to quash the remedy does not have as much as the narrowest reed to stand upon: it is undisputed that the accused had been detained between 1999 and 2007 on the orders of the Military Court and in violation of the Cambodian law and for the sole reason of expectation of the establishment of the ECCC (otherwise, there was absolutely no reason for his 8-year long detention and no obstacles for his timely prosecution); there is documentary evidence that the accused was transferred (not released and then re-arrested) to the ECCC from the Military Court which amounts to uninterrupted custody (just because a suspect or accused is moved from the jurisdiction of one national court to that of another does not interrupt what is known as ‘government custody’); there is no question that the Cambodian Criminal Procedure Code (CPC) clearly and unequivocally provides for remedies for the violation of what the CPC terms as ‘mandatory rules’; the observance of statutorily prescribed limits of detention is but one of these mandatory rules; there is abundant case law which makes it clear that the added procedural rights (which stem from the ICCPR) require that there is a remedy for the violation of the procedural rights applicable to a person’s deprivation of liberty in pre-trial detention (anyone familiar with the particulars of the presumption of innocence as set out in the ICCPR and the Cambodian law would be able to see that it is clearer than daylight).
SCC, singlehandedly, managed to overturn the last 2 decades of very difficult human rights work of many dedicated foreign and local individuals who grind this work bit by bit through the unreceptive and often flat-out undignified attitude of the Cambodian government (Hun Sen’s insults thrown at the OHCHR Representative immediately come to mind but the high-profile nature of these insults blots out the indignity suffered by the scores of officers of the NGOs like ADHOC, LICADHO and many others who stand by those whom the government wants jailed with the key thrown away). Jailing people and throwing away the key is what the Cambodian government has done for decades before, during and after Democratic Kampuchea with a handful of individuals opposing this and the rest of the Cambodian society merely standing on the sidelines and gazing thinking ‘thank God it wasn’t me’. SCC pulled the rug from underneath these individuals’ feet today and left them absolutely nothing to stand on. By defying the legal and factual realities the SCC told the Cambodian government that it was correct about keeping Duch in detention with no reasonable prospect of finality other than the establishment of the ECCC and the beginning of the proceedings. SCC also told everyone in Cambodia from its high pulpit that so long as the Cambodian government needs to detain a person it has full discretion to do so which is not hindered by any law. It also told the Cambodians and the observing outsiders that the government owes them nothing for illegal detention that no matter how many international jurists will be on the Court the Cambodian government will go scot-free and will be validated in its approach after much bluster which will amount to one thing: the Cambodian government cannot be wrong, even if both the law and the fact are against them. The bluster and the incendiary oratory we have seen and continue seeing in the other two Chambers do not amount to much more than mere entertainment for those of us who are wired in a way which seeks stimulation in this type of processes; the SCC is the least televised Chamber but, by the end of the day, it is the only one that matters as it can overrule the other two. And it did so today.
Some of the incidents we have seen throughout this process are entertaining and funny. DC-Cam Deputy Director’s LLM from Notre Dame and knowledge of the law from underneath a palm tree is funny. What the SCC did today isn’t funny. It is a black day for human rights in Cambodia. SCC has managed to do what only science fiction writers had been able to do before: they created a time machine. With that time machine they took us back to the time before 1992 when officers of the UNTAC Human Rights Department yanked persons out of prisons who were locked up there without a process, without a possibility or timeline for release. The UN officers of the UNTAC showed that it could be done. This time the UN paid to create a court that would take these achievements away. It’s a shame. The Cambodian government has every reason to open champagne tonight and the human rights advocates have every reason to pack their bags. That’s provided they have a place to run.
Why does this feel like August, 1979 happening again and yet somehow different? Ah, yes, because the foreigners who came to validate the PRT actually believed in the government they came to validate. Oh, yes, and none of them came from Japan (Japan was not shouldering half the cost of the proceedings at the time; perhaps, packing the SCC with a mix of Japanese and Singaporean judges would have been ideal: they would have been seen as foreigners and yet would have acted as locals in pursuance of the concept of 'Asian values' rather than that other concept ... what do we call it again? ah, yes, human rights).
As Leonard Cohen said in one of his songs, "everybody knows that the war is over; everybody knows that the good guys lost". Whoever the good guys were in this case.
Appeal Judgment of the ECCC Supreme Court Chamber in Case 001: More on the Summary of the Appeal Judgment and in Greater Detail (In Several Parts): Part I
Defense’s challenge on basis of the personal jurisdiction of the Court: under Cambodian law jurisdictional matters are raised through what is known as ‘interlocutory questions’. The court of first instance can issue a separate judgment on interlocutory questions or bundle it with the judgment on the merits as the TC did. If issued separately and if it terminates the proceedings, the judgment on the interlocutory question can be appealed separately and immediately; in all other cases it loses its separate identity and becomes appealable as a matter of law and as part of the judgment on the merits. The SCC dealt with such an interlocutory question – without referring to it as such -- challenging the TC’s finding that the Court had personal jurisdiction over the accused was raised by the defense. Tacitly agreeing with the prosecution’s position that the appeal of the interlocutory question was “untimely”, the SCC found that “a fair trial demands that the Accused has the right to raise an objection to a patent or latent lack of jurisdiction that could vitiate the trial at whatever time s/he decides safeguards his/her interest”. It is a touchy rights sentiment (particular in light of what is to come) but it isn’t the law. Here’s the law: “if the Court of Appeal [SCC is two for price of one: the Court of Appeal and the Supreme Court of this process] considers that the appeal has been filed after the time limit or that the appeal is not submitted in the correct manner, the Court of Appeal shall decide that the appeal is not admissible”. The use of ‘shall’ (italicized by me) is particularly indicative here which is distinct from ‘may’ which would have accorded the SCC discretion but which isn’t part of the governing text. There is nothing in this rule of the level of requisite awfulness which would have permitted the SCC to go rule-shopping to the international level. With this said, ‘vitiate’ is a good and highly underutilized word and writing this section of the Summary was worth it even if it was for the sole purpose of rectifying this inequity (otherwise, art. 404 could have just as well been used; this is actually the law and the purpose of whatever that other paper is was to supplement the law, not to replace it; besides the defense had every reason to be familiar with this rule). THE FULL TEXT OF THE JUDGMENT SHOWS THAT THE SCC, YET AGAIN, IGNORED THE CAMBODIAN CRIMINAL PROCEDURE. THIS IS EVIDENT FROM THE FACT THAT AT NO POINT IN ITS DISCUSSION OF “ERRORS CONCERNING PERSONAL JURISDICITON” DID THE CHAMBER ACKNOWLEDGE THAT IT IS NOT SUBJECT TO JUDICIAL REVIEW AND THAT “CONFLICTS OF JURISDICTION BETWEEN SEVERAL COURTS OF THE SAME DEGREE SHALL BE DECIDED BY THE PRESIDENT OF THE HIGHER COURT” FOR WHICH DECISION THERE IS NO APPEAL (ART. 290) (THIS MEANS THAT THE PRESIDENT DECIDES IN HIS ADMINISTRATIVE RATHER THAN JUDICIAL CAPACITY). IF THE SCC FELT THAT THIS RULE WAS REPUGNANT TO “THE PROCEDURAL STANDARDS ESTABLISHED AT THE INTERNATIONAL LEVEL”, THIS SHOULD HAVE BEEN DISCUSSED INSTEAD OF SIMPLY INVENTING ANOTHER RULE TO REPLACE THE LAW WITHOUT DISCUSSION. CONFLICTS OF JURISDICTION ARE, HOWEVER, DISTINCT FROM “LACK OF JURISDICTION” FOR WHICH CASSATION TO THE SUPREME COURT IS EXPRESSLY PERMITTED (ART. 419) (SCC EVENTUALLY FOUND ITS WAY TO VERY MUCH THE SAME CONCLUSION WHILE ESCHEWING CAMBODIAN LAW LIKE THE PLAGUE) ALTHOUGH WHAT REMAINS A GRAY AREA IS WHETHER IT IS A PREREQUISITE THAT THE LOWER COURT’S JURISDICTION HAD BY THEN BEEN CHALLENGED OR WHETHER A PARTY CAN CHALLENGE IT FOR THE FIRST TIME DURING THE CASSATION. SCC’S FINDING THAT “CAMBODIAN PROCEDURE IS SILENT ON THIS DISTICTION OF JURISDICTIONAL DEFECTS” WOULD HAVE BEEN ALTERED, HAD THE ABOVE ARTICLES OF THE CPC BEEN TAKEN INTO ACCOUNT.
IN THE FULL TEXT OF THE JUDGMENT, THE SCC MADE AN ENTIRELY UNGROUNDED FINDING BY, VERY MATTER-OF-FACTLY, STATING THAT “FRENCH LAW [COULD] BE USED TO INTERPRET CAMBODIAN LAW”. CONSIDERING THIS IS BY NO MEANS A MATTER OF SETTLE LAW OR PRACTICE IN CAMBODIA, PERHAPS, SOME SORT OF AN EXPLANATION OF THIS ASSERTION WOULD HAVE BEEN MOST APPROPRIATE. BUT THEN THE SCC WOULD HAVE HAD TO REVISIT “SUPPORTING” CLEARLY ARTICULATED AND FOR THAT REASON UNAMBIGUOUS CONSTITUTIONAL RIGHTS WITH … WAIT FOR IT … ENGLISH LAW (FT. 79). LET’S PRESUME THAT THE CHAMBER HAD NO ACCESS TO THE RELEVANT RIGHT’S (PRESUMPTION OF INNOCENCE) HISTORY IN CAMBODIA. LET’S PRESUME IT HAD NO ACCESS TO THE CONSTITUTIONAL TRAVAUX PREPARATOIRES (WHICH HAVE NEVER BEEN PUBLISHED AND WHICH ARE HARD TO OBTAIN IN CAMBODIA). LET’S PRESUME THE CHAMBER DOES NOT REALIZE THAT CONSTITUTIONAL INTERPRETATION IS ONLY CONSTITUTIONALLY PERMITTED TO THE CONSTITUTIONAL COUNCIL. LET’S PRESUME THAT THE AUTHORITY GRANTED BY THE CONSTITUTION TO THE CONSTITUTIONAL COUNCIL TO THE EXCLUSION OF OTHERS CAN BE SOMEHOW OVERCOME (I WOULDN’T KNOW HOW BUT THIS COURT HAS OVERCOME A NUMBER OF THINGS BY DECLARING HOW SPECIAL IT IS) AND, IF THAT HAPPENS, THAT THE SCC IS NOT AWARE THAT THAT OPEN A 4-LANE SPEEDWAY OF CONSTITUTIONAL INTERPRETATION THROUGH CAMBODIA’S INTERNATIONAL OBLIGATIONS. LET’S PRESUME ALL THAT BUT ENGLISH LAW? OF THE 1930S? SERIOUSLY? LET ME TRY TO GUESS WHY. IS IT BECAUSE CAMBODIA AND THE UK HAVE NEVER HAD ANY CONNECTION HISTORICALLY? IS IT BECAUSE THE UK AND CAMBODIA FOLLOW COMPLETELY DIFFERENT AND OFTEN ANTAGONISTIC LEGAL SYSTEMS? OR IS IT BECAUSE THE BRITISH BILL OF RIGHTS OF 1689 WAS NOT THE BASIS FOR THE PRESUMPTION OF INNOCENCE AT THE CAMBODIAN CONSTITUTIONAL CONVENTION OF 1992-93? “GOLDREN THREAD OF ENGLISH CRIMINAL LAW”? “PROSECUTION MUST PROVE THE GUILT OF THE PRISONER [BEING] PART OF THE COMMON LAW OF ENGLAND”? WELL, GOOD FOR THE ENGLISH, I SUPPOSE. WHAT IS IT DOING IN A DECISION ISSUED IN THIS COUNTRY?
I NORMALLY DO NOT COMMENT ON THE DOCUMENT CALLED THE INTERNAL RULES BUT I CAN’T HELP COMMENTING ON THE FACT THAT THE SCC ENTIRELY INVENTED WHY RULE 89(1)(A) SHOULD NOT BE READ IN THE MANNER A PLAIN-TEXT READING OF IT WOULD SUGGEST. IT IS COMPLETE FICTION WHICH MASQUERADES AS A LEGAL REASONING.
FINALLY, SCC MISREAD “THE RIGHT TO HIS CONVICTION AND SENTENCE […] REVIEW BY A HIGHER TRIBUNAL ACCORDING TO LAW” OF THE ICCPR WHICH IS READ AS GIVING IT AUTHORITY TO ACT PROPRIO MOTU ON THE ISSUE OF PERSONAL JURISDICTION. THE CHAMBER GAVE US NO REASON TO BELIEVE THAT IT REVIEWED THE APPLICATION OF THIS ARTICLE OF THE ICCPR WHICH EXPLAINS THE RASHNESS OF THE APPROACH TO ITS TEXT. THE RELEVANT CASE LAW SHOWS THAT WHILE THERE IS A RIGHT TO JUDICIAL REVIEW, THERE IS NO RIGHT TO JUDICIAL REVIEW OF EVERY SINGLE FACET OF THE TRIAL WHICH IS NEATLY TUCKED AWAY IN THE “ACCORDING TO LAW” ELEMENT OF THE RIGHT.
IT IS NOT DIFFICULT TO SEE HOW ONE MIGHT SEE THE QUALITY OF THE DEFENSE’S APPEAL AS SUBSTANDARD WHICH IS REGRETTABLE BUT UNSURPRISING CONSIDERING THE DEFENSE HAS MANAGED TO MAINTAIN THIS LOW QUALITY STANDARD THROUGHOUT THE PROCEEDINGS. THE PROSECUTION DECIDED TO ACT AS A LAW PROFESSOR AND TO INSTRUCT THE DEFENSE ON HOW APPELLATE ARGUMENTS ARE STRUCTURED. THE SCC CORRECTLY SLAPPED THE PROSECUTION ON ITS HANDS AND MOVED ON TO THE SUBSTANCE ESSENTIALLY SAYING ‘THEY ARE NOT PRESENTING IT RIGHT BUT WE KNOW WHAT THEY ARE SAYING’. SCC’S HANDS-OFF APPROACH IS UNDERSTANDABLE BUT IT GETS THE INSTITUTION WHICH HIRED DUCH’S LEGAL TEAM OFF THE HOOK, THE DEFENSE SUPPORT SECTION; IT WOULD BE INTERESTING TO FIND OUT HOW THE DSS MANAGED TO LET PERSONS THROUGH WHOSE WORK IS SEEN AS SUBSTANDARD BY MANY? OF COURSE, DSS’ ENTIRE MANAGEMENT WHO HIRED MOST OF THESE LAWYERS IS NOW GONE, THE HOW REMAINS A VALID QUESTION (DID DUCH REALLY CHOOSE KAR SAVUTH AS HIS LAWYER FROM A LIST OF CAMBODIANS LAWYERS PRESENTED TO HIM OR DID KAR COME ATTACHED FROM THE MILITARY COURT? KIND OF AN IMPORTANT CONSIDERATION WHICH GOES TO THE HEART OF THE RIGHT TO CHOOSE ONE’S OWN COUNSEL).
Further, SCC came up with a creative interpretation of the meaning of “senior leaders and those most responsible” which they found to be “not dichotomous” arguing that DK’s senior management belongs in the both categories. THE FULL TEXT OF THE JUDGMENT SHOWS THAT THE SCC RELIED FOR THIS ARGUMENT ON A STUDENT PAPER WRITTEN BY A SEAN MORRISON (IT IS, PERHAPS, INDICATIVE THAT THIS IS THE AUTHOR’S ONLY PUBLICATION OF ANY KIND ON THE ECCC AND THE ONLY PUBLICATION AS SUCH). WHEN THIS PAPER WAS FIRST MADE AVAILABLE PUBLICLY IN 2008 (BEFORE ITS PUBLICATION), I THOUGHT IT ARGUMENT WAS FLAWED BUT I THOUGHT IT WAS AN INTERESTING RESURRECTION OF A BY THEN VERY OLD AND FLEETING ARGUMENT WHICH THE AUTHOR DOUBTLESS ARRIVED AT WITHOUT ANY KNOWLEDGE OF THIS ARGUMENT HAVING BEEN MADE SOME 7 YEARS PRIOR. THAT THE SUPREME COURT WOULD RELY ON THIS ARTICLE AS WHAT APPEARS TO BE THE MAIN BASIS OF ITS ARGUMENT IS NOT ONLY SURPRISING BUT SHOCKING ON VERY MANY LEVELS. IT IS ALSO VERY PERPLEXING AS TO WHY THE CHAMBER THOUGHT IT WAS OKAY TO SUBMIT ARGUMENTS AGAINST ITS “NOT DICHOTOMOUS” CONCLUSION PURPORTEDLY IN SUPPORT OF THIS CONCLUSION WHICH IT RESOURCES FROM THE RECORD OF CAMBODIAN PARLIAMENT (FOR WHICH I COMMEND THE CHAMBER AS ONLY THOSE WHO HAVE TRIED TO GET ANYTHING FROM CAMBODIAN PARLIAMENT KNOW HOW BUMPY THAT ROAD IS) AND OTHER MORE ACCESSIBLE LITERATURE? IT IS PARTICULARLY INTERESTING THAT MORRISON IS THE ONLY ONE WHO HAS EVER ADVOCATED THE NON-DICHOTOMOUS APPROACH TO “THE SENIOR LEADERS AND THOSE MOST RESPONSIBLE”. SCC THEREFORE ACCEPTED THE MINORITY VIEW ON THIS -- THE VIEW OF ONE STUDENT -- AND DISREGARDED THE VIEWS OF THE REST INCLUDING THE UN, THE RGC AND THE NUMEROUS SCHOLARS WHO HAVE SPENT MORE THAN A COUPLE OF MONTHS WORKING ON AND RESEARCHING THE ISSUE. I REALLY DON’T KNOW WHERE TO FROM HERE. TAKING ITS OWN ADVICE THE CHAMBER WOULD HAVE DONE WELL BY TAKING A SECOND LOOK AT THE INTERPRETATION ARTICLE OF THE VIENNA CONVENTION. OF COURSE, THIS IS ONE OF THOSE RARE OCCASIONS WHEN A LITTLE FIELDTRIP TO THE OTHER TRIBUNALS IS WARRANTED. THE ICTY STATUTE, FOR EXAMPLE, ESTABLISHES THE COURT’S PERSONAL JURISDICITON AS “PERSONS RESPONSIBLE FOR SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW COMMITTED IN THE TERRITORY OF THE FORMER YUGOSLAVIA SINCE 1991”. THE LANGUAGE IS NOT THE SAME BUT WHAT ARE THE SIMILARITIES? LET’S GO BACK TO MIDDLE SCHOOL GRAMMAR. WE HAVE AN ADJECTIVE (SERIOUS) AND AN ADVERB (MOST). WHAT COMMON FUNCTION DO THESE TWO PARTS OF SPEECH HAVE? THEY MODIFY. MODIFICATION IS ESSENTIALLY COMPARISON WHICH MEANS THE DRAFTERS OF THE ICTY STATUTE AND THE DRAFTERS OF THE ECCC LAW ON ESTABLISHMENT PRESUMED COMPARISON, I.E. IF THERE ARE GOING TO BE ‘SERIOUS VIOLATIONS OF HUMANITARIAN LAW’ THIS IMPLIES THAT THERE ARE GOING TO LESS SERIOUS ONES OR NOT SERIOUS ONES AT ALL AND THE COURT WITH NO JURISDICTION OVER THE 2ND AND THE 3RD (IT DID PROSECUTE DUSKO TADIC IN VIOLATION OF THIS JURISDICTION AND BECAUSE THE COURT COULDN’T GET ANYONE ELSE AT THE TIME); SIMILARLY IF THERE ARE GOING TO BE ‘MOST RESPONSIBLE’, THERE ARE GOING TO BE THOSE LEAST RESPONSIBLE AND THE GREAT IN-BETWEEN. ICTY HAS BEEN GOING AT IT FOR 20 YEARS NOW, WHY NOT TAKE A LOOK TO SEE HOW THEY HAVE DONE IT AND DO THE EXACT SAME THING (MAYBE WITH THE EXCEPTION OF VIOLATING THE PERSONAL JURISDICTION AND MAKING A MOCKERY OF THE PROCESS BY ARGUING THAT TADIC WAS ONE OF THE GREAT YUGOSLAV WAR CRIMINALS THE ICTY WAS SET TO PROSECUTE; SCC CITED SCSL AS REALLY EXPLAINING WHY ICTS VIOLATE THEIR OWN PERSONAL JURISDICTION; IT STARTS WITH “IT IS INCONCEIVABLE THAT AFTER A LONG AN EXPENSIVE TRIAL …” WHICH IS ANOTHER WAY TO SAY THAT DONORS WANT A BANG FOR THEIR BUCK)???? AND, OF COURSE, IT WOULD BE FAIR TO NOTE THE CHAMBER’S EFFORT TO THIS EFFECT BUT ANY VALUE IT HAS IS THAT OF AN OVERVIEW OF ADMINISTRATIVE PROCEDURES IN THE ICTY CHAMBERS, RATHER THAN AN ANSWER TO THIS QUESTION: IF PERSONAL JURISDITION IS A POLICY MATTER WHICH IS NONJUSTICIABLE AT ICTY, WHY DID THE TRIAL CHAMBER OF THE ICTY NOT SAY SO IN ITS VERY FIRST CASE, TADIC? WITHOUT SATISFACTORILY ANSWERING THIS FOUNDATIONAL QUESTION, EVERYTHING ELSE IS JUST FLUFF. WHAT IS THE PERSONAL JURISDICTION OF THIS COURT THEN? THERE ISN’T ONE? OR IS IT ANY WHO WAS PART OF THE KHMER ROUGE BY WHATEVER DEFINITION (THE INTERNATIONAL CO-PROSECUTOR WOULD LOVE THIS ONE AS THIS WOULD EXTEND THE LIFE OF THIS COURT UNTIL THE LAST PERSON WHO LIVED DURING THE PERIOD DIED AND THAT’S A LONG TIME)? LAST ON THE SUBJECT, I BELIEVE THE DRAFTERS HAD SUFFICIENT COMMAND OF ENGLISH AND WOULD HAVE SAID “SERIOUS OFFENDERS” IF THEY HAD MEANT TO CREATE A VERY GENERIC CATEGORY. THEY DIDN’T DO THAT. MAYBE BECAUSE THEY THOUGHT THAT ANY OF THE OFFENSES WITHIN THE COURT’S SUBJECT-MATTER JURISDICTION WERE SERIOUS (WHICH IS THE WAY A REASONABLE PERSON WOULD SEE KILLING AND TORTURE) AND IT WOULD HAVE BEEN REDUNDANT TO CREATE A CATEGORY THAT INCLUDES ALL ALLEGED PERPETRATORS. INSTEAD, THEY CHOSE THE LANGUAGE OF ‘THOSE MOST RESPONSIBLE’ AND THERE IS NO REASONS TO BELIEVE THAT THEY USED MOST FOR RHETORICAL PITH BUT THERE IS REASON TO BELIEVE THAT THEY MEANT TO LIMIT PROSECUTIONS TO A SMALL GROUP OF MOST RESPONSIBLE.
UNFORTUNATELY, THE ‘MOST RESPONSIBLE’ NONSENSE SPILLS ON TO ‘SENIOR LEADERS’. IN SUPPORT OF ITS FINDING THE SCC CITES A SINGLE STATEMENT EXTRACTED FROM THE PARLIAMENTARY RECORD AND LEFT OUT HUNDREDS WHICH DO NOT WORK FOR THIS ARGUMENT. WHAT THE CHAMBER IS MISSING HERE IS THAT THE AUTHORITY OF THE STATE TO PROSECUTE IS CONSTRAINED BY THE LAW; THE STATE’S AUTHORITY NOT TO PROSECUTE IS LIMITED BY NOTHING UNLESS THERE IS A COMPLAINT FROM A VICTIM (WHETHER IT IS LATER WITHDRAWN OR NOT). CONSIDERING THE NATURE OF THIS PROCESS, THE CAMBODIAN STATE HAS ALWAYS HAD THE AUTHORITY TO DETERMINE WHOM TO PROSECUTE AND EVERYONE INVOLVED IN THE PROCESS KNOWS THAT THE CAMBODIAN STATE KNEW EXACTLY WHOM THEY MEANT WHEN THEY SAID ‘SENIOR LEADERS’ IN THE ECCC LAW.
HAVING ASSERTED THAT ‘MOST RESPONSIBLE’ AND ‘SENIOR LEADERS’ ARE NONJUSTICIABLE POLICY CATEGORIES THE CHAMBER TURNS AROUND IT SAYS THAT THE PROSECUTORIAL DISCRETION REGARDING THIS “POLICY” CAN BE “REVIEWED” BY CHAMBERS (OF COURSE, HOW ELSE DO YOU SHOW “UNSOUND PROFESSIONAL JUDGMENT” BUT BY REVIEWING THE ENTIRE PROSECUTORIAL SUBMISSION OR THE INVESTIGATING JUDGE’S CLOSING ORDER?). THIS IS VERY GOOD STUFF. HERE IS WHAT THIS MEANS. ACCORDING TO THE SCC, THESE TWO CATEGORIES ARE NONJUSTICIABLE WHICH SHOULD MEAN THAT THE PROSECUTOR AND THE INVESTIGATING JUDGE HAVE UNTRAMMELED DISCRETION DETERMINING WHO BELONGS IN THESE CATEGORIES. BUT, THE CHAMBER BLUNDERS ON, THE CHAMBERS HAVE THE AUTHORITY TO REVIEW THE PROSECUTOR AND INVESTIGATING JUDGE’S ACTIONS REGARDING THEIR EXERCISE OF THIS UNTRAMMELED DISCRETION. LADIES AND GENTLEMEN, IF CAN BE REVIEWED, IT IS NOT UNTRAMMELED. HERE’S THE BEST PART: BECAUSE THESE TWO CATEGORIES ARE NONJUSTICIABLE NO ONE HAS STANDING TO CHALLENGE THE PROSECUTOR AND INVESTIGATING JUDGE’S EXERCISE OF DISCRETION REGARDING THEM WHICH LEAVES US WITH THE BENEVOLENCE OF THE CHAMBERS ACTING PROPRIO MOTU TO CHECK ON THIS UNTRAMMELED DISCRETION. GREAT STUFF. AND FINALLY, SCC COULD NOT KEEP ITSELF OUT OF THE FRAY. IT REALLY WANTED TO SAY WHAT IT THOUGHT ABOUT THE PROSECUTION AND INVESTIGATING JUDGES’ CHOICE AND THIS IS HOW IT SOUNDED: “THE ASSESSMENT THAT IT [TC] NONETHELESS CONDUCTED DEMONSTRATES THAT THE CASE OF THE ACCUSED FALLS SQUARELY WITHIN THESE INVESTIGATORIAL AND PROSECUTORIAL POLICY CRITERIA”. IF THE CHAMBER THOUGHT THIS WAS A POLICY, HOW COULD IT ASSESS ITS APPLICATION IF IT IS BY ITS NATURE NONJUSTICIABLE? IF IT IS NONJUSTICIABLE, WHY ASSESS THE CONTENT OF ITS APPLICATION? WHICH PART OF ‘NONJUSTICIABLE’ AM I MISSING HERE? CAN THIS ALL BE RE-WRITTEN? CAN THIS BE DONE BEFORE THE CAMBODIAN VILLAGES CRACK COPIES OF THIS JUDGMENT DELIVERED TO THEM IN HARD COPY (I WILL GET TO THIS LATER IN THE ANALYSIS BUT CONSIDERING ITS UNPRECEDENTED ASSININITY, WHY BOTHER TRANSLATING IT INTO KHMER? WHY NOT DISTRIBUTE IT IN ENGLISH TO THE EXACT SAME EFFECT – NO ONE WILL UNDERSTAND A WORD IT? WHAT HAPPENED TO THE OUTREACH PROGRAM AND SIMPLIFICATION AND RE-WRITING SUMMARIES OF COURT DECISIONS IN A MANNER ACCESSIBLE TO AN AVERAGE CAMBODIAN? BUT THAT’S A WHOLE OTHER BALL OF WAX)?
Not how the drafters or anyone else involved in the pre-production process conceptualized it but fair enough. This is nicely followed by the Vienna Convention’s treaty interpretation test which is all good and kosher. And then after what looked like a prelude to a kosher meal the SCC puts bacon on the table: “the term ‘most responsible’ cannot be a jurisdictional requirement for many reasons, including: the notion of comparative responsibility is inconsistent with the ECCC Law’s prohibition of a defense of superior orders” for which reason the “term ‘most responsible’ should be interpreted as a nonjusticiable policy guide for the Co-Investigating Judges and the Co-Prosecutors in the exercise of their discretion as to the scope of investigations and prosecutions”. Complete bacon (I don’t think we will be able to eat off these plates even if we bury them first). First, yes, the prosecution and the investigating judges do have discretion regarding whom to prosecute (I wouldn’t call it ‘policy’, though, at least not when it comes to the investigative judges). But, if the SCC is guided by the CPC this discretion is far from untrammeled for the prosecution (the investigating judges are a check on that discretion). The accused has the right to challenge this discretion once the matter advances to the trial phase of the process at which point the accused gains access to a nice little abovementioned tool -- objections on the basis of interlocutory questions. If this tool was not the drafters’ way of permitting the accused to challenge the court’s jurisdiction, among other things, what does the SCC think it was put here for? To put this matter outside the justiciability frame by essentially calling jurisdictional challenge a political question (for a while there I secretly hoped that those plates could still be re-used but it is not looking good now). RELEGATING PERSONAL JURISDICTION TO THE LEVEL OF POLICY INEXORABLY MEANS THAT IT CANNOT EVER BE CHALLENGED BY THE ACCUSED WHICH RENDERS ITS VERY EXISTENCE POINTLESS. IT IS ENTIRELY UNTENABLE AND COUNTERINTUITIVE TO BELIEVE THAT THE DRAFTERS WOULD HAVE PUT PERSONAL JURISDICTION AT THE TOP OF THE JURISDICTION LIST AND INTO THE LAW ON ESTABLISHMENT IF THEY HAD MEANT FOR IT TO BE A MERE GUIDELINE (SCC, ONCE AGAIN, OFFERS “SUPPORTING” DOCUMENT WHICH SPEAK AGAINST IT: YES, THE GROUP OF EXPERTS DID SAY “A GUIDE” AND “ANY PERSON” BUT THE DRAFTERS REJECTED THIS IDEA AND DID EXACTLY WHAT THE GROUP OF EXPERTS SAID THEY SHOULDN’T DO! AND NO THE TRAVAUX IS NOT CONSISTENT THE LAW ON ESTABLISHMENT NOT JUST ON THIS BUT ON MOST OTHER MATTERS). FOLLOWING THE SAME LOGIC, DOES THIS MEAN ALL OTHER TYPES OF JURISDICTION ARE A MERE MATTER OF GUIDANCE FOR THE PROSECUTORS AND THE INVESTIGATING JUDGES? IF NOT, THEN IT DEFIES THE DRAFTERS’ LOGIC WHO DID INTEND THIS DISTICTION; IF YES, THEN WHY NOT PROSECUTE OFFENSES BEFORE AND AFTER 1975-79 AND COMMITTED IN AND OUTSIDE CAMBODIA? THIS IS A VERY UNFORTUNATE LOGIC WHICH UNDERPINS A VERY UNFORTUNATE RULING. The accused in this case did not suggest that no court had jurisdiction over him; he merely suggested that this Court didn’t. The Court is under orders from the law to determine whether the accused’s challenge is meritorious. While it had always been understood that ‘most responsible’ was a time-bomb and legal experts discussed ways of diffusing it before the inception of the Court, this drafting inadequacy is not the accused’s fault (the Chamber can write a review article or tell the drafters in person how it feels about what they had drafted but they can’t pin this on the accused). The right answer to this question, therefore, is the presumption of innocence and in dubio pro reo as its constitutional constituent element, not the attempt to esotericize (normally, I have no quarrel with things esoteric but there has to be a group of people, no matter how insular, which can decipher it (if this was written in code, maybe the full text of the judgment will shed light on this) the founding law’s prohibition of the defense of superior orders proffered here. On the whole, the SCC’s opinion that the drafters would put ‘senior leaders and those most responsible’ in the title of the founding law of this Court and its personal jurisdiction articles just so that it serves as a nonbinding policy guideline is preposterous. The Vienna Convention test says “manifestly absurd”. So, there it is.
THIS CONCLUDES MY ANALYSIS OF THE JUDGMENT UP TO CHAPTER IV. MORE LATER.