And the So-Called ‘Internal Rules’ Bite the Court in the Keister Again

Over years I have said on numerous fora that the document slapped together by ECCC’s judicial brass entitled ‘ECCC Internal Rules’ is unlawfully constituted if applied as a law in and of itself (as opposed to, let’s say, an aide memoire of sorts). This has had very little, if any, effect on the Court who has pigheadedly continued to do precisely that. It is not clear which part of ‘you are not a legislator and this is not a common law country’ the judges have had trouble understanding all this time. Whatever it might be, the ECCC judges have gone even far beyond the ambit of authority common law judges have vested themselves with (this is precisely what happened to US courts – Congress never meant for them to have the authority they gave themselves through Marbury v Madison): common law judges routinely constrain themselves to making law where the legislature hasn’t and striking down laws, in whole or in part, on failing the constitutional muster. The ECCC judges went far beyond that: they legislated on matters the legislature has spoken about in a clear manner that does not lend itself to much interpretation. This scope of judicial authority would be scandalous at common law but it is an absolute outrage in the context of the Cambodian law, the very law that governs the proceedings before ECCC.

This time the Internal Rules were pitted against a clear-cut provision of the Cambodian Criminal Procedure Code (‘CPC’). The incident goes something like this: the defense moved to have the judges of the Trial Chamber who heard Case 002/01 disqualified from sitting on Case 002/02 using a CPC provision for disqualification; the defense demanded that the judges against whom a motion to disqualify was filed immediately recuse themselves, arguing that immediate recusal is required by law in these circumstances; the Trial Chamber refused to apply said provision of the CPC without reasoning, instead basing its position on the Internal Rules and its own prior decision that said that immediate recusal is not required by law; the defense boycotted the proceedings in protest; the Trial Chamber engaged in arm-twisting to get its way, acting as if fighting fire with fire.

Article 559 of the CPC, inter alia, states the following: “[t]he application [for disqualification] shall be notified to the judge against whom it is made [;] [t]his judge shall cease to participate in the investigation or trial.” CPC outlines the rest of the disqualification procedure following this provision thus making it clear that said procedure is effected following the suspension of the judge against whom a motion to disqualify has been filed. As such, the CPC is clear on the matter: judges are subject to immediate recusal on the mere fact of a motion to disqualify. The defense got it right, so where is the beef? Well, legally speaking, there isn’t any but, politically speaking, the Trial Chamber judges do not want to hold on to the Internal Rules they concocted by substituting legislature for themselves and they do not want any possibility of being disqualified as this – unlike it is in ordinary courts – is likely to signal the end of their tenure on this Court and the judges simply won’t let this ‘grave injustice’ of a possibility of a rule of law applying happen. The clarity of the CPC, however, makes it irrelevant what the Internal Rules say or what the Trial Chamber said on the matter before as whatever else these judicial pronouncements may or may not be they are not what the CPC is – they are not law. Therefore, what the Trial Chamber judges are doing is attempting to substitute the non-law that works best for the judges for the law made through the constitutionally prescribed democratic choice.  

The garbage of the ilk of the Internal Rules and prior judicial decisions that keeps coming out of the Court is outrageous and is deleterious to the already squalid state of rule of law in Cambodia.