... And Now Completely Off the Rails

Recently the trial court officially went off the rails by granting civil parties’ requests to “ask the accused questions.” All this started a few months ago when one civil party told the court he wanted to ask Khieu Samphan about the fate of his uncle. This is not something that was engineered by the Civil Party Co-Lawyers as a matter of strategy but was something said civil party blurted out while on the witness stand (I will get to civil parties being on the witness stand below). A request like this is understandable given the civil party’s lack of understanding of the criminal process and his lawyers’ failure to explain to him what his function was while in court. This, of course, was bound to happen given the civil parties’ general low level of education and absolute absence of knowledge of the criminal process and given their lawyers’ much less than stellar performance. There was, however, an understanding that the bench would keep nonsense of this type out of the proceedings. To the chagrin of the integrity – and, let’s be honest sanity – of this process the trial court did not do that. Instead, it showed that it got caught off guard by the request. That sounded off the alarm with some of those with a stake in what the trial court does. Those who were alarmed by that development soon proved to be justified as the trial court permitted civil parties to “ask the accused questions” (I use plain language for this as this is the language the trial court has been using and there is simply no legal term for asking questions irrelevant to the proceedings).

 

Let us see what the Trial Chamber could have relied upon in the law as the basis for this order.

 

First, it is important to note that article 312 of the Criminal Procedure Code (‘CPC’) states that “[a] civil party may never be heard as a witness.” This is the exact opposite of what the trial court has done throughout both Case 001 and what has been completed of Case 002, i.e. civil parties have testified in court, were examined and cross-examined, and generally acted as witnesses in every way. By doing so the trial court thus ignored a specific provision of the CPC. Article 129new of the Constitution states that “[t]rials shall be conducted […] in accordance with the legal procedures and laws in force.” By supplanting a clear provision of the CPC with a judicial invention designed to placate the NGOs, the trial court acted unconstitutionally and violated the accused’s right to be tried “in accordance with the legal procedures and laws in force.” Second, under article 318 of the CPC the trial court has a grant of the law to “exclude from the hearing everything [it] deem[ed] to unnecessarily delay the trial hearing without being conducive to ascertaining the truth.” The trial court has not done so. In fact it has permitted the prosecution and the civil parties to parade dozens of witnesses to testify to the same thing (how many witnesses does the trial court need to hear to be satisfied that it is true that on April 17, 1975 the Khmer Rouge expelled the population of Phnom Penh telling the expellees that the expulsion was necessarily to protect them from the American bombing and to let the Khmer Rouge reorganize the city, and telling them that they would be allowed to come back in 3 days’ time?). It is next to impossible to remember when it was last that either the prosecution or the civil parties produced a witness who testified to something novel (some say it is Chhouk Rin’s testimony and I am willing to concede to that with a caveat that there was a big nothing for a long time prior to that and there has been a big nothing since). The redundancy of these witnesses and civil parties-come-witnesses is clear because even the defense has gotten quiet. This should have been a signal to the trial court that no one is contesting the basic facts of the expulsion of the population of Phnom Penh. Yet, the court has kept permitting more and more witnesses and civil parties-come-witnesses to drag out these proceedings. It is not difficult to understand the donors’ frustration with the process – they agreed to pay for a criminal process, not a truth and reconciliation commission which would permit discussions (they are not inquests, just discussions) of disappearance of a single individual or those of the correct understanding of the revolutionary concepts (plus, of course, let us not forget that the Office of Administration promised them, with a stern face, that the process would not go a minute past the 3-year mark). Third, article 321 of the CPC states that “[t]he judgment of the court may be based only on the evidence included in the case file or which has been presented at the hearing.” The questions asked of the accused by the civil parties do not belong in either category as they are neither part of the case-file, nor are they presented as evidence at the hearing simply because they are not subject to cross-examination or any other process, for that matter. Article 325 of the CPC specifically authorizes “all parties” to the proceedings to examine the accused. This includes the civil parties. However, this examination is limited to the charges against the accused contained in the closing order. The trial court has permitted civil parties to ask questions that are neither part of the charges in the closing order, nor can, in and of themselves, be charges of criminal conduct. A good example of this is the recent question about the purpose of self-criticism sessions. Surely, the accused do not stand accused of designing and implementing the policy of conducting self-criticism sessions and do not need to give a lecture on their purpose, as they saw it, in court. Fourth, the law does not provide for such things as “statement of suffering” of civil parties or civil parties’ “asking questions” of the accused. What the law does provide for is the right against self-incrimination. Article 14 (3) (g) of the International Covenant on Civil and Political Rights (‘ICCPR’) states that “everyone shall be entitled to […] [n]ot to be compelled to testify against himself or to confess guilt.” The trial court found a way around it by asking the accused if they would be willing to answer questions from the civil parties. In a fit of idiocy the accused, advised by their attorneys, in principle, agreed. This, of course, tells us everything we need to know about these defense attorneys but the Cambodian Constitution protects persons from incompetent representation by placing the court in the position of guarantor and protector of “the rights and freedoms of the citizens” (art. 128new). Not only did the court fail to guarantee the rights and freedoms of the citizens by permitting the civil parties to “ask questions” of the accused, it actively encouraged this violation. This raises the ubiquitous question of who watches the watchers and the answer in this case is no one. At this stage, instead of doing the watching of the defense attorneys to ensure that their performance passes the constitutional muster the trial court engaged in multiple violations of the accused’s constitutional rights. Fifth, it is unclear if the accused remain under oath while answering these questions. If so, why does the prosecution not challenge such patently absurd statements as Khieu Samphan’s persistent references to the Khmer Rouge as “they” and describing himself as some sort of a privileged guest of theirs (he sought protection of the Khmer Rouge when he fled Phnom Penh and the Khmer Rouge never gave him any important tasks because they thought he had his head in the clouds? Or feet above the ground was it?). Given the amount of evidence to the contrary presented by the prosecution, much of which has not been successfully contested, why is the prosecution not contesting these statements now? It is probably because the prosecution does not know what to do with these “asking questions” sessions. No one does. No wonder as there is no basis for them in the law (and a number of proscriptions) and the trial court keeps making up rules for them as it goes along.

Perhaps, the only way of getting further off the rails would be the ordering of food in and a bunch of incense. The court already owns a stupa, so incense and some fruit are all that is missing. The accused and the civil parties can pray in front of the stupa and then get a little lunch so that the civil parties can ask the accused whatever questions they like. Maybe it would be a good process to undertake under different circumstances; maybe not. But the fact of the matter is that it would have as much to do with the criminal process as this “asking of questions” the court has recently authorized and is now actively engaging in which is to say nothing. This is not what this process was designed to do and this is not what the international donors are paying for. A criminal process was what this process was designed to be and a criminal process is what the donors have agreed to pay for and this is exactly what the court is obligated to deliver, not cater to the musings of the NGOs on what this process is supposed to accomplish and humor those who are trying to turn it into Meet the Press or the Great Rockoff Show.