Hun Sen: Sanctioned by the ECCC?

The Noun Chea defense team’s request for investigation under Rule 35 of the Internal Rules of this Court had been a hot-potato issue for quite some time until the Trial Chamber (TC) ended up at the plate and had to swing the bat at it. Ordinarily, there is a very thin line between law and politics in Cambodia but there never is one when it comes to the Prime Minister whose authority brooks no arguments of the constitutional separation of powers. Cambodian judges are clear on the matter, as well as the fact that their place in the sun depends on the will of the Prime Minister. These judges form a statutory majority on this Court. It is in this environment that the TC had to deal with the defense’s motion in question.

I will start my analysis of the TC’s decision with the Applicable Law section which the TC correctly started off with the constitutional presumption of innocence. However, instead of establishing the constitutional nature of the presumption first and foremost the TC chose to open with a generic statement that the presumption is “a fundamental principle”. This, perhaps, would have been salient if the Cambodian Constitution did not contain the presumption. As this is not the case, the TC's opening achieves nothing other than confusing the status of the Constitution in these proceedings. The Chamber then veered into the presumption being “a component of […] a fair trial” as if trying to bulk up a constitutional right with what might be seen as a constitutional doctrine. Considering expressly spelled-out constitutional rights normally do not require a crutch to move around using such a dubious crutch as a doctrine is very odd and by no means necessary. What happened afterwards, perhaps, defines ‘legal oddity’: the TC corralled the constitutional presumption of innocence into the same pen with the similar rights set out in the European Convention on Human Rights and the African Charter on Human and People’s Rights. Why? Is the Chamber saying that similar rights set out in two regional instruments which have nothing at all to do with Cambodia carry as much weight in these proceedings as a right set out in the Constitution of this country? Now, the TC appears to have been inspired by finding ECtHR cases on point which it immediately cited. However, what is ‘on point’ might be an issue here. Let’s see why. It is this Chamber’s statutory obligation to apply the Cambodian law unless exceptional circumstances exist not to do so. The Chamber found that the Constitution contains a presumption of innocence and showed no reason to resort to the permitted exceptions but sprinted off to the ECtHR to explain for the presumption of innocence under the Cambodian Constitution meant. How would the ECtHR case law be able to explain what presumption of innocence means as set out in the Cambodian Constitution? Is it because Cambodia is not a state party to the ECHR and is therefore outside the ECtHR’s jurisdiction? Why did the TC presume that the presumption of innocence in the Cambodian Constitution and the presumption of innocence in the ECHR have the same content? Because they are called the same thing? So are a BMW M5 and a Daewoo Tico; they both are called 'car'. Their verbal form is the same and a first-year law student can be forgiven to think them one and the same thing but surely the eminent judges of the Trial Chamber of an internationalized tribunal know that establishing that there is a level of similarity which might exist between the two requires a showing based on a rigorous analysis of the elements these two rights (which may come from the history of application and/or the legislative intent) (e.g. a jurist routinely does not take the US case law on the doctrine of exigent circumstance, for example, and apply it to define what an exigent circumstance might be under the Constitution of Slovakia; this is because it is understood that these two jurisdictions have nothing to do with each: they do not have  common ancestry and there is no history of either interpenetration or the US system being the antecedent to the Slovak system). No such analysis was undertaken and the TC plunged headlong into explaining a constitutional right with something said by a court which has no connection to the Cambodian Constitution. One would naturally wonder what happened to the more conventional means of interpretation such as legislative intent, plain text and in this particular case using the means of art. 31 of the Constitution to gain access to the interpretation given to the presumption by the Human Rights Committee, a body to which Cambodia is a state party through a number of international instruments to which it has acceded? This is not a matter of legal opinion but a matter of difference between good legal reasoning and bad legal reasoning. The difference is between treating law as math, as opposed to paperback literature.

The Chamber proceeded by examining the content of R.35 correctly finding that “reason to believe” is the standard the Chamber must satisfy itself of to order any of the sanctions set out in R.35. From here, the Chamber, yet again, throws itself into the abyss of flawed legal reasoning by stating that “[w]here criminal culpability is alleged, the threshold for intervention by a Chamber is higher”. By this the Chamber interprets R.35 as distinguishing between acts listed in R.35(1) which carry criminal sanction and those which, presumably, only carry a civil sanction. The TC then attaches ‘knowingly and willfully’ as the test for criminal sanction and ‘reason to believe’ for civil sanction. This difference would make perfect sense were it not for the fact that this is not what R.35 says. R.35 says that there is a mens rea requirement that for all the acts set out in R.35(1), without differentiating between the type of sanction they may attract, and that requirement is ‘knowingly and willfully’. This requirement is then followed by an evidentiary test which is ‘reason to believe’. Therefore, as a matter of practical application, a judicial body will apply the ‘reason to believe’ test to find out whether the allegation is credible (not unimpeachable but, as the defense argued in its motions, credible) and if so, it must proceed to test the intent by applying ‘knowingly and willfully’ to determine whether the person meant to influence the judicial process in one of the prohibited ways (of course, the sequence of this is regrettable as it appears in R.35 but the judges of the TC were a part of the panel which spent a year drafting these rules between 2006 and 2007 and they only have themselves to blame for the quality of the product). Any allegation, therefore, needs to pass both of these tests to create grounds for sanction set out in R.35(2). Any argument that R.35(1) and R.35(2) are discrete modes of sanction is erroneous for the reason of R.35(2) clearly being linked to R.35(1) by the latter saying “any acts set out in sub-rule 1”. These two relate to each other in the same manner the crime section of an article of a code of law normally relates to the punishment section of the same. The TC entirely misinterpreted that and instead of applying a test set out in its own bylaws, the Chamber launched into a sermon which may be entitled “You Are Just Going to Have to Trust Us”. In a sermon, however, the minister routinely, albeit implicitly, refers to why his congregation should trust God by adducing biblical evidence, i.e. God made a promise and he brought Israelites out of Egypt, God made a promise and he got Israelites to the Promised Land, God stayed Abraham’s hand when he was ready to slay his son and made sure that the injustice did not happen, etc. The TC wants us to believe that it will uphold the presumption of innocence on the basis of any presumption is made up from the hiring requirements for the judges of this tribunal. Of course, the Chamber either expects us not to understand the difference between a hiring requirement and a presumption or it expects us to not know or have forgotten the history of this process and the fact that J. Ney Thol is still on the Court (although he is not a part of this chamber). I would like to assure the TC of the opposite by saying this: we know the difference and we haven’t forgotten. Following this test of the depths of our patience and knowledge the Chamber resurfaces with a finding that it is satisfied that the facts adduced pass the ‘reason to believe’ test and then cuts to a cliffhanger that it may activate the sanctions regime of R.35(2) without testing for ‘knowingly and willfully’ and thus skipping a sine qua non step. The Chamber then buried its head in the sand of ‘criminal liability’. Then the Chamber does something that is outlandish even by the standards of this Court. Stay close to me on this. It is quite a ride. Analyzing the evidence adduced, the Chamber found that such evidence is sufficient to satisfy the ‘reason to believe’ test, then used this and possibly some other evidence to determine that “the context in which these remarks were uttered is unknown and the alleged remarks […] are ambiguous”. Yet, the Chamber later found that regardless of this uncertainty and ambiguity “it is unnecessary to conduct an investigation in order to establish the authenticity of these alleged remarks”. Wow. Why is this? Is it because the Chamber has accepted the remarks as adduced and does not question their authenticity or is it because the Chamber thought that it would not be allowed to conduct an investigation into the matter and that Hun Sen would not appear in court if subpoenaed or cooperate with the Court in any other manner?

All the inadequacies of the decision at hand notwithstanding, I would not want them to incurably detract from the fact that what the Chamber did in this decision is history. This is the first time Hun Sen who has been Prime Minister of this country for close to 30 years has been sanctioned by a court of law. This is not something to sneeze at and something that surely impresses every long-term Cambodia watcher. The Trial Chamber walked a tightrope here and despite being driven into a corner by the Noun Chea defense craftily using a provision the IR drafters never anticipated would be used against this country’s most senior politicians the Chamber did more than it was reasonably expected to do given Cambodia’s political canvass, if not the law. Of course, “a reminder”, given the clarity and gravity of the statement and the Cambodian judiciary’s well-established subservience to the executive, might not be very impressive by international (read: Western) standards, it is nonetheless impressive by Cambodian ones.

Where to from here? The NC defense will celebrate this victory and try to capitalize on it by achieving its ultimate goal: getting the Court to subpoena Hun Sen as a witness. This decision shows that the TC is unlikely to be willing to go down that road and risk seeing the Hun Sen defy a court subpoena. This is exactly what the NC defense wants to see happen. I do not believe that the NC defense believes that exculpatory evidence which benefits their client might come out of the Prime Minister’s testimony in court. What the defense wants is for him to not appear pursuant to the subpoena and for the Court to grant NC remedy for the violation of his right to call witnesses. Given what the Supreme Court did to the remedy for the violation of procedural rights granted to Duch by the TC, one might be inclined to be cynical about this and say, well, what does it matter if we know the SCC will throw it out on appeal? To that I will say, not that fast. The international judge, Judge Motoo Noguchi (whose work is ‘recognized’ below on this forum) is leaving the SCC and will therefore not be there to cast his vote with the Cambodian judges of the SCC. This means that everything will depend on Noguchi’s replacement who may or may not share his views. So, there is still hope for the defense and the battle is not lost before it has even begun now that Noguchi is leaving.

On the technical side of things, for future purposes, the TC will need to re-read R.35 correctly and acknowledge that the only reasonable reading of the Rule is that no sanction is possible without first establishing intent. The current reading of the Rule is untenable and, as such, must go.