ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Tuesday, April 1, 2014

The Cambodia Daily: The Face of the New Blatancy of Misrepresentation

The Cambodia Daily article below does not keep us on pins and needles for a misrepresentation: It opens with one. The very title of this article, “ECCC Aims for Legacy with New Criminal Procedure Code,” is misleading as there is no new criminal procedure code in Cambodia, with the 2007 Criminal Procedure Code (CPC) remaining in force and without amendment. What did happen was that the Cambodia Office of the United Nations High Commissioner for Human Rights (‘OHCHR’) put out an annotated version of the CPC, which, while potentially a worthwhile effort, is not a legislative product but rather an academic one. Hence, calling that product “New Criminal Procedure Code,” as the Daily does in this article, is misleading at best.

The article, however, does not stop at a single misrepresentation. It goes on to assert, without reference, that “[t]he Khmer Rouge tribunal […] tends to apply [the CPC] more rigorously than domestic courts.” One would, naturally, imagine that there would a study that informed such a bold and purportedly discerning assertion. I had not seen such a study and I knew that it did not exist at the time I read this article for I follow the field very closely. But, there are always unpublished works of young scholars and smaller publications that might be off my radar (although I make every effort to sensitize my radar to them as size does not necessarily speak to the quality, so far as I am concerned). Not one to jump the gun, I chose to hold judgment until all the facts were in. As such, I contacted the listed author of the article, Lauren Crothers, for an explanation. Not being in Cambodia, I emailed Lauren Crothers asking to provide substantiation for this assertion. Replying immediately, she informed me that the impugned sentence had not been penned by her and that it was added during the editorial process, thus, asking me to wait to hear back from the colleague who did the editing. Not having heard from anyone, I emailed the Daily again. This time a reply came from a Julie Wallace who informed me that “the Daily does not have the resources to respond to every specific reader complaint individually,” and inviting me to write a letter to the editor on the subject. I replied by asking the same question – name the source that informed the impugned statement. Julie Wallace did not reply to that email. Nor did she reply to the subsequent email in which I requested that the Daily run a retraction of the impugned sentence for absence of substantiation.  

Now, this is not an exercise of picking on the Daily’s amateur reporting. The issue is far more significant than that. We know for a fact that there are high-ranking officers of the Cambodian government who read the Daily. The Cambodian government has always maintained a position that Westerners criticize it no matter what it does. The Cambodian government is hard to sympathize with as it does deserve the bulk of that criticism and much more. However, this does not mean that everything that the Cambodian government does should be painted black by association with that for criticism is substantiated and well-warranted. As such, each instance of criticism must be well-substantiated to ensure its credibility and therefore weight. To obtain substantiation the speaker must do his or her due diligence. In this article, the Daily did not do its due diligence which produced an unsubstantiated (anything reasonably credible would have worked as substantiation for me or at least an attempt at such; the Daily had none to offer) statement that happens to be wrong (could have as easily gone the other way but I trust we are all in agreement that journalism must be a little more scientific than a crapshoot). This statement is based on nothing other than the Daily’s perception that everything the Cambodian government does is inexorably less than what the UN does (through the Khmer Rouge tribunal in this case). In this case, the truth is that the Cambodian courts are staffed with beady-eyed bureaucrats who will not accept any argument unless it is based on black letter of the law that is clear beyond the shadow of a doubt and that is not subject to interpretation (it goes without saying that all bets are off when money or political pressure enters the judicial process) and which I call ‘textualism on steroids.’ I have spent countless hours trying to get the Cambodian judges to see ways of interpreting the law and while we have had some interesting discussions, I do not believe that I have been able to sway them much away from their firmly-held position – if it is not typed into the statute in boldface it does not exist. Watching them apply the CPC from the day of its adoption in 2007 has left me with absolutely no doubt that they are rigorous. On the contrary, the ECCC, on numerous occasions, has flouted the CPC from the very day of its inception in 2006 (Starygin, Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (ECCC): Setting an Example of the Rule of Law by Breaking the Law? (2011) and until this very day.   

The Daily’s presumptuous attitude has been developed by foreign reporters who are in no way qualified to comment on law – let alone Cambodian law – or the administration of justice in that country and who do not believe in sourcing its material, and who approach a very delicate systemic issue (that a number of us have put years into it) as if this was reporting on the Homecoming Queen’s outfit in a school paper. This is preposterously irresponsible as piffle like this undermines the work of serious professionals and institutions by creating a misconception that they endorse this statement (the Cambodian government’s perception is most often informed by association too, which in this case would be “foreigners” or “Americans”) when this statement is nothing more than an incompetent blurting-out of a sound bite by a reporter who left her journalistic ethics at home on that day.

The Daily’s approach to accuracy and journalistic ethics, based on this article, is most regrettable. It is equally regrettable that it does not respond well to legitimate requests for retraction.