Disorder in the court

MAR 4, 2000
Reprinted with permission from The Cambodia Daily

The Justice Ministry keeps a list of all its judges that at first glance is relatively straightforward. Separated by province and listed by rank, Cambodia's roughly 120 judges fall neatly into place.

But a closer look reveals a complexity that reflects the country's turbulent times over the last few decades.

Under the "Education" category lie at least a dozen different types of schools a Cambodian judge might have attended, depending on what regime he studied under. And while about half of the judges on the list were appointed after the last national election of 1998, some of the appointments date back to 1982, just years after the Khmer Rouge regime was toppled and the country began to rebuild under watchful Vietnamese communists.

At the head of one section might be a judge who can wax on for hours about the divergent legal systems that have spanned Cambodia's many regimes, with an acute sense of how communist law, usually in the form of decrees passed down from high officials, differs from Western law, which has dominated Cambodian policy since 1993, when the country held its first democratic election and drafted a constitution.

Yet not too far away from him on the list might be another judge who never studied law and whose provincial court today is so corrupt that middlemen have set up shop to help people get more for their bribery money.

These stark contrasts are not lost on those keeping a keen eye on Cambodia's judges. Considering up to a dozen judges could be selected to preside over the country's most important trial ever -- a tribunal that would apply international law to Khmer Rouge leaders allegedly responsible for more than one million deaths from 1975-79 -- critics fear too few are up to the challenge.

The capacity of Cambodia's judges, or their ability and training, certainly is one concern, says one representative of Human Rights Watch, a US-based rights monitoring group.

"But I think the 1998 elections showed that even with highly qualified, senior people, including expatriates and dual citizens, there is still an enormous pressure -- and in some cases outright threats -- exerted from the top" that leaves them too open to political bias.

When a handful of judges were asked how many of their peers would be capable of serving on a Khmer Rouge tribunal, the highest number they gave was 15.

The lowest, five.

Moreover, every one of them said no matter how far away from Phnom Penh they were, they felt the pressure of Prime Minister and ruling Cambodian People's Party vice president Hun Sen's order to re-arrest criminals whom he alleged were set free by corrupt courts.

Says Chum Samban, deputy chief judge in Svay Rieng province: "To do this Khmer Rouge trial fairly, you will have to find judges who are both experienced and independent -- in other words, those who are not involved with the political party."

'One of the good guys'

Inside Kandal Chief Judge Hy Sophea's humble, stuffy office, people mill about with questions and complaints. Above the din can be heard the judge's cool voice, as he answers them one by one.

Meticulously signing documents in two types of ink, his wide face easily breaks into a thoughtful smile when asked about how many types of law he has studied -- French, Vietnamese, American -- and how much of an effort he has made to keep up with Cambodia's changing regimes.

Mention his name to most legal reformers, and they will tell you Hy Sophea is "one of the good guys," a judge who is dedicated to bettering his understanding of law.

For him, making the enormous paradigmatic shift away from Vietnamese socialist law -- which, when he studied, was more akin to executive policies such as bans on public protests than statutes passed by lawmakers -- meant years of training that continues to this day.

According to the US State Department's recent report on human rights, Vietnam's courts to this day exercise "unchecked power," and judges issue decisions according to the Communist Party's wishes, despite some efforts to establish a more independent judiciary.

Hy Sophea studied law under that same system, in addition to 12 years of primary and secondary education before Cambodia fell to the Khmer Rouge. He studied for one year in Phnom Penh and then went to Vietnam, where he studied law until 1991. After he returned to Cambodia he took some 600 hours of Western legal courses over the years and has taught at the Faculty of Law since 1995.

While he easily can dissect the details of various statutes, he maintains that the shift of Cambodian judges from one legal system to the next will not happen overnight -- and that even he still applies socialist principles in cases where new laws are not clearly defined.

"Before, Cambodia favored socialist law, and now we favor democratic law," Hy Sophea says. "But of the two laws, neither one has a firm hold. We take theories from both and apply them as our limited economic and human resources allow."

In other words, in the absence of clear policy, it's best to apply laws that are the most fair to the complainants, he argues.

Sok Sam Oeun, a legal reformer and executive director of the Cambodian Defenders Project, says this is the very problem that will keep even the best of judges from making a difference. Even people like Hy Sophea will be limited in their efforts to reform by incomplete laws, he says.

A group of laws considered by legal analysts as crucial building blocks for true democracy in Cambodia -- basic penal, criminal-procedural and civil codes, and laws dealing with the duties, organization, salaries and discipline of judges, prosecutors and clerks -- remain stalled in drafting committees awaiting final passage.

For instance, Cambodia needs a law forbidding judges from reading case dossiers long before a case is heard, Sok Sam Oeun says, which only allows them to make rulings arbitrarily.

"Many of Cambodia's judges were trained in socialist regimes and know only socialist legal concepts, where the state's interest is more important than the freedom of the people. Most of them to some extent were trained this way, and it will take a lot of undoing to change that."

Unfortunately, Sok Sam Oeun says that for every Hy Sophea who tries to follow still incomplete laws, there are many others too tied to the old ways. While a handful of the country's top jurists graduated from the same class in Vietnam as Hy Sophea, few have taken the steps that he has to further their knowledge of the law.

When Sok Sam Oeun looks at the Justice Ministry's list, he can only shake his head.

In the more remote provinces like Preah Vihear, Prey Veng and Ratanakkiri, a number of judges have just between five and nine years' primary and secondary education, according to the list. In Koh Kong province, judges' education is as low as three and four years.

A few judges, too, have been hit by recent scandal.

In Mondolkiri, a judge recently was suspended for his involvement in a logging scandal.

Even the seemingly more established judges in Phnom Penh have come under fire. The Supreme Court recently disallowed the release from prison of a drug suspect, even though it had acquitted him for a lack of evidence. In Phnom Penh's Municipal Court, the chief judge and the chief prosecutor recently were suspended and replaced in a sweep by the government's executive branch to root out corruption that eventually led to Prime minister Hun Sen's re-arrest order.

And few can forget the June trial of Nuon Paet -- a former Khmer Rouge rebel sentenced to life for ordering the kidnapping and murder of three Western tourists in 1994 -- where the judge raised issues in her final decisions that never were addressed in the trial.

"[The Nuon Paet trial] was a test case for how the country's courts would handle a high-profile trial. And it showed that political influence is still there," said the representative of Human Rights Watch.

Despite the seemingly insurmountable troubles, Hy Sophea is optimistic. He says Cambodia has scads of bright, young law students just waiting in the wings to take the reins as judges and apply new principles.

"I am not a strong man. But we have to try. We have to try hard. If we don't, the next generation of judges will not make it."

'Strongman of the court'

"Prisoners, step forward!" barks Tith Sothy, chief judge in Kompong Cham province.

Seated at the head of his courtroom, he calls five kidnapping suspects to the bench, leaving little doubt who is in charge.

"Does any of you want to change judges?" he asks them. Quietly, they answer "No" in unison.

Militant and authoritative, Tith Sothy is just a few steps down the Ministry of Justice's list from Kandal judge Hy Sophea.

But the two could not be more different if they tried.

"He is the strongman of court," says Chin Bunthan, a lawyer with Legal Aid of Cambodia who is defending one of the accused kidnappers. "He lets very little slip by him without controlling it. He is very strict."

In Cambodia's most populous province where Hun Sen's brother for several years served as governor, rights workers and everyday people say political influences play a big role.

A former teacher who never went to law school, Tith Sothy in 1986 was appointed to his post by the Vietnamese-installed Ministry of Justice. To this day, a handful of his relatives serve on the court.

As Licadho prison monitor Bon Videak puts it:

"The court here is not known as the court of Kompong Cham. It is known as the court of Tith Sothy."

Later, in his office, Tith Sothy begins an interview with a joke about judges taking bribes in Cambodia. The director of what NGOs and legal analysts say is one of Cambodia's more corrupt courts, he cannot deny the charges.

"I cannot tell a lie," he says. "Even I take money from time to time. But only after the case is decided, and sometimes I don't know they are giving me money. Sometimes they are giving me a box, and I think it is a gift."

Tith Sothy even admits the existence in his court of a middle-man who for years allegedly has taken money from families who hoped he would have better success bribing court officials.

During an interview with the middle-man's wife, she maintained her husband's duties were "not illegal, because he knows all the bosses."

Although Tith Sothy denies a direct connection with the middle-man, he says the man "sometimes gives money to court officials" and that Tith Sothy has "warned him to watch himself, but there is no law banning his existence as an adviser to people.

"If a judge is a clever man," Tith Sothy says, "he can find ways to make a lot of money."

Even Tith Sothy's biggest critics acknowledge that judges' salaries are ridiculously low and only encourage wrongdoing.

"You talk about court reform?" he asks. "There is nothing to reform if they don't raise my salary. I can't reform," he says.

A raise in judges' official salaries -- from an average of $15 a month to between $200 and nearly $600, depending on a judge's rank -- is included in the latest judges' law that was approved by Cambodia's Supreme Council of Magistracy, established as the government's top judicial watchdog in charge of judges nationwide. But the law is stalled in committee at the Ministry of Justice, awaiting passage by the Council of Ministers.

In Tith Sothy's mind, everyday people who criticize judges do not have a clear picture of the law. Like children, he says they will always blame their parents, even if their parents are not at fault, he says.

"Everybody wants to win. Right or wrong, they do not understand," Tith Sothy says. "If I really wanted to make people happy, I would have to issue two decisions in every case."

When judges make arbitrary rulings, however, the consequences often go much deeper than just general unrest among the people, rights workers say.

According to Licadho, a Kompong Cham man in 1996 who allegedly was beaten by police and took his case to court eventually killed himself when the court ruled in favor of authorities.

That said, rights groups acknowledge that progress is being made as more NGOs gain a foothold in Kompong Cham's court.

At the kidnappers' trial, one suspect by the end of the day is released for a lack of evidence.

Tith Sothy says this "might make political leaders unhappy" -- referring to the recent court shakeup in Phnom Penh Municipal Court that resulted in Hun Sen's re-arrest order. But he says he must do his best to uphold the law. "I do what I think is my duty. I'm not a good man...but I don't want to be a bad man. I do the best I can."

'I never dreamed'

Further down the Justice Ministry list and further away from Phnom Penh sits Chum Samban, the deputy director in Svay Rieng province, who at first shudders at the idea of granting an interview and says he must first talk to his boss.

A shadowy figure whom local rights workers say they rarely see, the court director is "off in a meeting" and cannot be reached. But Chum Samban finally asks someone to go and "find him" and gets the clearance to speak.

"I want to talk about how we are trying to become more independent," says Chum Samban, who has served in this court since it was first re-established in 1982. "But it's important to have [the interview] approved first....We are not independent here."

As he speaks, he grows less tense and points out his office window toward a grassy area where his family home once stood.

After the Vietnamese overthrew the Khmer Rouge in 1979, he returned to find the home destroyed and abandoned, but he quickly worked to rebuild a life and became the village chief. Three years later, the government recognized his efforts and gave him a job at the court. In 1984, he became its second highest-ranking judge.

"I never dreamed I would be a judge. I always thought I would be a pilot. But all my friends who were pilots ended up dead. So I guess I am lucky," Chum Samban says.

According to the Justice Ministry list, a number of remote provinces have judges like Chum Samban who were appointed in the post-Khmer Rouge, communist era and have little formal training.

At that time, finding trained professionals -- let alone anyone who was willing to leave Phnom Penh to take a post in the still unstable provinces -- was a difficult task, analysts agree.

The high number of early-1980s appointees highlights the larger problem of how to train judges who really aren't judges in the Western sense.

"At that time, a judge wasn't seen to be a trained professional," says Matthew Rendall, a lawyer and legal instructor with the Cambodia Law and Democracy Project. "He was more likely to be someone who was a party loyalist who had raised in the ranks.

"Their role was not to discern laws, but to apply them according to the government's wishes. Many of them even think this new way is strange...that maybe they aren't ready for independence."

Yet Pen Dara, the vocational center manager at the Cambodian Center for the Protection of Children's Rights in Svay Rieng, says the court there is beginning to take action against alleged child traffickers whom she frequently exposes when she removes children from brothels.

Again, she suggests that the increasing number of watchdog groups is helping even the most entrenched judges reform. She says, however, that judges only act in accordance with the law when pressured to do so by NGOs. When dealing with everyday people, "they don't always cooperate...and they probably still ask for money."

"Judges just need to learn more. Some of them never studied the law and have been in place for too long," Pen Dara says.

But Chum Samban defends his experience, saying a newly-graduated law student is no match for years on the bench.

The Supreme Council, which is supposed to be solely responsible for disciplining judges but has only met a few times since it was established in 1993, recently has been considering moves to match old judges with new ones, officials said. According to Justice Ministry Undersecretary of State Y Don, the council's new draft law on judges frequently would rotate judges in and out of provinces.

Matthew Rendall agrees that experience counts for quite a bit.

"Like in Western countries, the best judges are the most experienced. Older people have value in that they know how to solve disputes."

Although it has been suggested that Cambodia might be better off just wiping its judicial slate clean and starting over with newer, more highly trained judges, Matthew Rendall says that is not a feasible solution.

According to Janet King, in-country director of the US University of San Francisco's Community Legal Education Center based in Phnom Penh, changing existing judges' mentalities and training their eventual successors will be a "multi-generational project.

"They're not going to change their mental mindsets by sitting in on a lot of seminars and workshops. This change will take decades," she says.

Few disagree that it will take time for Cambodia's judges to catch up with the country's new, more democratically oriented policies put in place in part to please international donors, who cover roughly half the government's annual budget.

But one Human Rights Watch representative said some reforms can't wait. "There's a lot we can do right now," she said. "We can strengthen the Supreme Council and reform it as a neutral body, independent of the Ministry of Justice and of political parties. Also, we can better ensure judges' safety when they take a strong stance.

"The meager salaries -- there's got to be a way [to raise them]. The government did it for the members of Parliament. And, the government should strictly enforce the law against out-of-court settlements. While it's part of the Cambodian informal system of bargaining, it could be changed in the short term.

"All of this," she argues, "can be changed in the short term."

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