Archive for May 12th, 2008

Week 559 – 2008-05-11: “Justice must not only be done, but must be seen to be done”

Posted on 12 May 2008. Filed under: *Editorial*, Week 559 |

The Mirror, Vol. 12, No. 559

The past week has presented the reading public again with many references to legal affairs, to the rule of law. A closer look at the different references reveals that there exist quite different conceptions as to the question what this means, and and how the role of law in society leads to a society where the rule of law is established.

The general expectation connected with this concept is, of course, that the rule of law – so that government and other decisions are made according to written law and its rules – helps to uphold public order, because he rules are applied consistently to all, the law enforcement agencies guarantee that life in society will be kept orderly and predictable, providing the reasons for their decisions based upon the law to the public. And if a law is violated, the police and the courts will take care of such cases.

Obviously, this does not always work well. The many direct appeals to the Prime Minister – for example – by people in the provinces who feel that their land rights have been violated, and they cannot find assistance by the organs of the state on the local level and therefore come to Phnom Penh – are not only a sign of confidence in the Prime Minister, that such actions will help them to achieve justice. They are also a sign of a lack of trust in the functioning of the legal system, unless a stronger authority intervenes from above.

The reported announcement of the Prime Minister, “ If Any Transportation Company Overloads and It Has Been Fined Twice, Its License Will Be Canceled,” confirms in a way indirectly that the normal procedure of fining does not work well in cases of overloaded trucks. Would the punishment be severe and expensive, a company would not run the risk of being fined a second time. And would the law – and its enforcement – lead to an even higher fine for second or third time violators, no special action by the Prime Minister would be necessary to cancel the licenses of the violators. Effective standard laws and their timely and strict enforcement would take care of problems created by overloaded trucks. This is in the spirit of Article 130 of the Constitution: “Judicial power shall not be granted to the legislative or executive branches.” Once a law is established, it is not expected that the executive intervenes again; law enforcement should take care of it effectively.

These general assumptions are, unfortunately, at present not easily accepted by the public as being valid.

During the present week, calls were made to let the courts do their work, in relation to two cases needing solutions – and in both cases there is the possibility that their timely solution might have some consequence for the forthcoming National Elections in July.

One is the controversy around the sale of the former headquarters of Funcinpec and the role of Prince Ranariddh, who is at present abroad, exactly because this pending legal case. Even the US ambassador is reported to have called for a clarification by Prince Ranariddh returning and by court action, well before the National Elections in July. To actively participate in the election campaign would require to be back in the country and to have the allegations of illegal actions moved out of the way.

The other controversy relates to the court case of the Minister of Foreign Affairs, who was head of the prisoners’ committee in the Boeng Trabek camp for Cambodians returning from abroad to the country during the early stages of the Khmer Rouge government, against the president of the Sam Rainsy Party. Both sides are said to be calling for witnesses who are at present detained by the Extraordinary Chambers in the Courts of Cambodia [ECCC], the Khmer Rouge tribunal.

It is even reported that the former head of the Tuol Sleng prison – Kang Kek Iew, also known as Duch – will be summoned as a witness on 16 May 2008, and also, that Mr. Sam Rainsy hopes that Duch will put the blame on Mr. Hor Namhong for having sent prisoners from the Boeng Trabek camp to be killed at the Tuol Sleng prison. The former King was not successful in a similar court case some years ago at a French court – so there is public interest to see to which result the Cambodian court will come.

One newspaper comment is, however, surprising in its expectation and argumentation, that Mr. Sam Rainsy will definitely loose the case, when it says that it cannot be expected that Duch would act to be Mr. Sam Rainsy’s witness, because it would be “useless for Duch to engage himself” while he himself is facing serious charges. Such an opinion seems to assume that witnesses in court think first of all if it is “useful for them” what they say, and not just to contribute to finding the truth.

That the ECCC will be able to provide justice for the countless victims of the Khmer Rouge regime is difficult to imagine, but there is still the hope that the Khmer Rouge trial will help to find out more about the painful historical truth. Even this hope is made subject to doubt by such an opinion, that statements to the court may be made more in terms of what is “useful” for those who speak – and not first of all whether or not it is true.

An opinion related to the Extraordinary Chambers in the Courts of Cambodia, expressed the expectation, in the Cambodia Daily of 7 My 2008, that the court should provide more access to information, pointing to a fundamentally important aspect of social satisfaction with the rule of law: “Justice must not only be done, but must be seen to be done.”

Law enforcement and its transparent implementation for the public needs to be further developed.

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