KR Law Is Wrong, Experts Are Worse
by Bora Touch, Lawyer, Syndey, Australia
On 12 February 2001, the Constitutional Council decided to send the KR Tribunal law
back to Parliament, ordering the Parliament to insert a paragraph in Article 3 of the law
disallowing the death penalty. The Council's "rationale" was that Article 3 of the draft law
re-ratified the 1956 Penal Code. The 1956 Penal Code provided for the death penalty in
punishment of certain crimes. This move smacks of delay tactics on the part of people
within the government to stall the process of bringing the alleged KR murderers to
justice. In fact, there is no need to insert any additional paragraph into the draft law as
Article 38 of the KR Tribunal law already generally prohibits the death penalty.
Thus, Article 3 of the
draft KR Tribunal law does not breach the Constitution. In contrast, adding another
paragraph would make the law more confusing and less sophisticated. This is coupled
with fairly bad wording and unsophisticated Khmer defining crimes in the draft law.
Some assertions made by those in the legal profession and in persuasive circles of
Cambodian civil society concerning this issue have been disturbing and flawed.
Dr. Lao Mong Hay
and lawyer Sok Samoeun, among others, were quoted as saying that by extending the statute
of limitation by 20 years, Article 3 of the draft law breaches the principle
of non-retroactivity. Dr. Hay stated that "no civilized nation would accept
retroactivity of law" and added that it would breach the Paris Peace Accords,
Annex 5. Sok Samoeun agreed. Their analysis is incorrect, however.
Extension of the statute of limitation has nothing to do with the principle
of non-retroactivity of criminal law. Article 3 only calls for extension of
time for prosecution; it does not make any non-crimes then a crime now.
Many civilized nations accept extensions of statute of limitations. It is the limitations
period that is in force at the time a person is charged and prosecuted, not when a person
commits a crime, that is relevant. Nothing here makes a new crime or charge retroactive.
Case in point, under the German Penal Code 1871, crimes such as crimes against
humanity and war crimes were punished under crimes such as murder, manslaughter and
unlawful deprivation of liberty. The limitations period for these crimes was between 10
and 20 years. By the Act of 9 August 1954, on the accession of the West Germans to the
1948 Genocide Convention, an article was inserted into the Penal Code as special penal
provision against genocide, which was not a crime in 1871. Because of the constitutional
prohibition of ex post facto criminal laws, the newly inserted genocide article could not
have any retroactive effect. To circumvent this barrier, the German Parliament on 26 June
1969 passed a law which provided that crimes based on the new article, i.e. genocide, did
"not come under the statute of limitation"; and at the same time and in order to prosecute
the Nazi criminals for murder, manslaughter and rape during the Nazi era, the Parliament
extended the limitation period for these crimes from 20 to 30 years. As a result of this
legislative change, the new limitations period for murder and manslaughter entered into
force on 31 December 1979, i.e. 34 years after the fall of the Nazi regime. Because of
the change in the limitations period, Nazi war criminals and those guilty of murder or
manslaughter during the Nazi regime could be lawfully charged.
Another point that these experts misunderstood is that while sympathy for victims of
crime is an important virtue, virtue sometimes has little to do with justice.
For Dr. Hay and Sam Oeun to
support the "right" of victims and prosecutors to appeal an acquittal verdict is tantamount
to advocating Cambodia breach international law, specifically the principle of double
jeopardy stipulated in the International Covenant on Civil and Political Rights to which
Cambodia is a party. Allowing an appeal of this nature would not promote efficacy or
efficiency at the trial level either. It is true that the first instance courts are largely
incompetent in Cambodia, but this would not be a way to redress the problem. Double
jeopardy should be prohibited regardless of the pain victims may feel in seeing an accused
walk free. This principle is designed to ensure that the government does a proper job of
prosecution the first time around and does not get a second bite of the apple. We should
not forget that justice and liberty for the accused is also important.
Finally, the KR Tribunal law does not give its extraordinary chambers the competence
to hear civil suits. Therefore, victims will not be able to commence civil proceedings
against former members of the KR. The victims could try to take action in normal Cambodian
courts, but they would have a statutory limitations problem: under general Cambodian
law the statute of limitations is three to five years for normal civil suits.
Unless the law is changed to accommodate civil suits against the KR, the opportunity
to bring such action has long passed.