Courts Making Illegal Use of Clerks: Experts
Court clerks throughout Cambodia are unlawfully undertaking the work of prosecutors and investigating judges, according to legal experts, a practice which under the letter of the law should nullify criminal or civil cases whose investigation were conducted in such a manner.
Sok Sam Oeun, executive director of legal aid NGO Cambodian Defenders Project, said by telephone Thursday that since 1994, court clerks have been illegally interviewing suspects, witnesses and victims-work that falls far outside their jurisdiction.
"It's become common in Cambodia," Sok Sam Oeun said, adding that the role of the court clerk is to take notes while a judge or a prosecutor conducts interviews, but more often than not, the clerks are allowed to do the work themselves.
Ny Chandy, Model Court Project manager for Legal Aid of Cambodia, said that because the illegal practice goes against court procedures it should result in the nullification of up to 40 percent of all court decisions.
"Clerks can't do the work of the prosecutors and judges. They only have the role to take notes," Ny Chandy said. "If they do, the whole procedure must be annulled," he said.
"It is illegal and makes it so you can't find justice for the victim or defend the rights of the accused," he added.
According to article 128 of the Criminal Procedure Code, court clerks doing the work of judges is prohibited.
"Regardless of any case, a clerk can not fulfill the duty as the authority of investigating judge," the article states.
Answers from senior court officials varied Thursday when questioned about the longstanding but illegal practice.
Phnom Penh Municipal Court Director Chiv Keng, who also sits on the Supreme Council of Magistracy, Cambodia's top authority on judicial procedure, all but denied that clerks had ever done the work of investigating judges or prosecutors.
"Judges in principal lead the questioning process," he said. "No clerks arbitrarily do the work by themselves."
Municipal Court Chief Prosecutor Ok Savouth confirmed Thursday that his clerks had conducted interviews, but only if ordered by prosecutors to do so.
"They received the list of questions from the prosecutors to do the questioning," he said. "If they question by themselves, it's against the law."
However, Phnom Penh Municipal Court Chief of Clerks for the Prosecution Prak Savouth said Thursday that clerks always conduct interviews by themselves.
"Court clerks are the ones who always do the questioning," Prak Savouth said, adding that clerks do not swear oaths to uphold the laws of the country, as judges and prosecutors must do to hold their positions.
Justice Minister Ang Vong Vathana said he was too busy to speak to reporters Thursday.
According to Justice Ministry Secretary of State Meach Sam On, the practice of clerks conducting interviews is illegal, but due to understaffing, it's a necessary illegality.
"We understand that it is illegal, but it helps facilitate the work of the judges," Meach Sam On said, adding that once a clerk finishes questioning, the judge should verify the clerk's notes for accuracy. Meach Sam On did not explain how such accuracy could be ensured after the fact. He also said that decisions on cases, in which clerks have conducted the questioning, should not be annulled.
"The clerk questions and if the judge refuses to take it, it will be done again," he said.
One foreign resident of Phnom Penh who was summoned to the court over a sensitive civil case recently recounted being interviewed by a young clerk in his early 20s.
He claimed that the clerk became angry with him when the resident refused to participate in questioning conducted by the clerk.
"The clerk had already started filling out the questioning form and then launched into questions of his own," said the resident on condition of anonymity for fear of retribution by municipal court officials.
"When I told the young clerk I would only be interviewed by the person whose name was on the summons-a deputy prosecutor-he responded angrily saying 'this is how the courts work.'"
According to the resident, a second older clerk then entered the office reeking of alcohol. Upon being told that the situation by the young clerk, the older clerk responded in a "surly manner" and told the resident to return in the afternoon, the foreign resident said.
After returning in the afternoon, the older clerk, who like the younger clerk had not identified himself, tried twice to begin the questioning again by opening the case file in front of the resident and asking for comment on the enclosed material. The deputy prosecutor did not turn up after almost two hours wait at which point the resident asked to leave the courthouse.
Ham Sunrith, deputy director of the monitoring and protection unit at local human rights group Licadho, said the power of the clerks has created confusion within the courts, as judges and prosecutors don't get their information about a case first-hand.
Judges and prosecutors "are the ones who have legal skills and the power to make decisions," Ham Sunrith said, adding that without doing the interviews themselves, judges and prosecutors might not fully understand the cases presented to them, and must simply rely on the word of a clerk.
"They may make decisions without understanding the case in depth," he said. (Additional reporting by James Welsh)
Court clerks throughout Cambodia are unlawfully undertaking the work of prosecutors and investigating judges, according to legal experts, a practice which under the letter of the law should nullify criminal or civil cases whose investigation were conducted in such a manner.
Sok Sam Oeun, executive director of legal aid NGO Cambodian Defenders Project, said by telephone Thursday that since 1994, court clerks have been illegally interviewing suspects, witnesses and victims-work that falls far outside their jurisdiction.
"It's become common in Cambodia," Sok Sam Oeun said, adding that the role of the court clerk is to take notes while a judge or a prosecutor conducts interviews, but more often than not, the clerks are allowed to do the work themselves.
Ny Chandy, Model Court Project manager for Legal Aid of Cambodia, said that because the illegal practice goes against court procedures it should result in the nullification of up to 40 percent of all court decisions.
"Clerks can't do the work of the prosecutors and judges. They only have the role to take notes," Ny Chandy said. "If they do, the whole procedure must be annulled," he said.
"It is illegal and makes it so you can't find justice for the victim or defend the rights of the accused," he added.
According to article 128 of the Criminal Procedure Code, court clerks doing the work of judges is prohibited.
"Regardless of any case, a clerk can not fulfill the duty as the authority of investigating judge," the article states.
Answers from senior court officials varied Thursday when questioned about the longstanding but illegal practice.
Phnom Penh Municipal Court Director Chiv Keng, who also sits on the Supreme Council of Magistracy, Cambodia's top authority on judicial procedure, all but denied that clerks had ever done the work of investigating judges or prosecutors.
"Judges in principal lead the questioning process," he said. "No clerks arbitrarily do the work by themselves."
Municipal Court Chief Prosecutor Ok Savouth confirmed Thursday that his clerks had conducted interviews, but only if ordered by prosecutors to do so.
"They received the list of questions from the prosecutors to do the questioning," he said. "If they question by themselves, it's against the law."
However, Phnom Penh Municipal Court Chief of Clerks for the Prosecution Prak Savouth said Thursday that clerks always conduct interviews by themselves.
"Court clerks are the ones who always do the questioning," Prak Savouth said, adding that clerks do not swear oaths to uphold the laws of the country, as judges and prosecutors must do to hold their positions.
Justice Minister Ang Vong Vathana said he was too busy to speak to reporters Thursday.
According to Justice Ministry Secretary of State Meach Sam On, the practice of clerks conducting interviews is illegal, but due to understaffing, it's a necessary illegality.
"We understand that it is illegal, but it helps facilitate the work of the judges," Meach Sam On said, adding that once a clerk finishes questioning, the judge should verify the clerk's notes for accuracy. Meach Sam On did not explain how such accuracy could be ensured after the fact. He also said that decisions on cases, in which clerks have conducted the questioning, should not be annulled.
"The clerk questions and if the judge refuses to take it, it will be done again," he said.
One foreign resident of Phnom Penh who was summoned to the court over a sensitive civil case recently recounted being interviewed by a young clerk in his early 20s.
He claimed that the clerk became angry with him when the resident refused to participate in questioning conducted by the clerk.
"The clerk had already started filling out the questioning form and then launched into questions of his own," said the resident on condition of anonymity for fear of retribution by municipal court officials.
"When I told the young clerk I would only be interviewed by the person whose name was on the summons-a deputy prosecutor-he responded angrily saying 'this is how the courts work.'"
According to the resident, a second older clerk then entered the office reeking of alcohol. Upon being told that the situation by the young clerk, the older clerk responded in a "surly manner" and told the resident to return in the afternoon, the foreign resident said.
After returning in the afternoon, the older clerk, who like the younger clerk had not identified himself, tried twice to begin the questioning again by opening the case file in front of the resident and asking for comment on the enclosed material. The deputy prosecutor did not turn up after almost two hours wait at which point the resident asked to leave the courthouse.
Ham Sunrith, deputy director of the monitoring and protection unit at local human rights group Licadho, said the power of the clerks has created confusion within the courts, as judges and prosecutors don't get their information about a case first-hand.
Judges and prosecutors "are the ones who have legal skills and the power to make decisions," Ham Sunrith said, adding that without doing the interviews themselves, judges and prosecutors might not fully understand the cases presented to them, and must simply rely on the word of a clerk.
"They may make decisions without understanding the case in depth," he said. (Additional reporting by James Welsh)
Thailand, Cambodia Trade Blame on Border Shooting
Thailand and Cambodia issued letters Saturday strongly protesting Friday's armed skirmish in the border area near Preah Vihear temple, with each side blaming the other for starting the incident that left one Cambodian and two Thai soldiers injured.
Foreign Minister Hor Namhong summoned the Thai ambassador Saturday to protest what Cambodia considers a "serious armed provocation" on the part of Thailand, Foreign Affairs Ministry spokesman Koy Kuong said.
"Hor Namhong told the Thai ambassador that Cambodia demands that the royal government of Thailand avoid such incident from recurring in the future," Koy Kuong said.
"Such armed provocation by Thai soldiers could lead to very grave consequences, including full scale armed hostility," warned a letter dated Saturday that Koy Kuong said Hor Namhong handed to Thai Ambassador Viraphand Vacharathit.
The letter states that at 3:30 pm Friday, Thai soldiers entered Cambodian territory near the Preah Vihear temple and fired an M-79 grenade launcher at Cambodian troops stationed there. They returned fire in self-defense and one RCAF soldier was injured, the letter states.
But according to a copy of a Saturday letter from Thailand's Foreign Affairs Ministry to the Cambodian government, Cambodian troops entered Thai territory 1 km west of Preah Vihear temple.
According to the letter, four unarmed Thai paramilitary rangers went to the Cambodian troops to negotiate their withdrawal. As the RCAF soldiers radioed their commander, the Thai rangers overheard him ordering his troops to open fire. The Cambodian troops then fired their guns into the air, prompting the Thai rangers to leave the area.
"[T]he Cambodian soldiers suddenly opened fire at the Thai rangers who were unarmed, prompting the Thai unit stationed nearby to return fire to protect the said Thai personnel in self-defense," the Thai letter read.
"[T]he shooting by the Cambodian troops against the unarmed Thai para-military rangers is regarded as a brutal and aggressive act and is contrary to the spirit of friendly relations between Cambodia and Thailand," it added.
"The incident occurred in Thai territory," said Chaturont Chaiyakam, first secretary of the Thai Embassy in Phnom Penh.
"They returned to the Thai position, and the Cambodians shot them in the back," Chaturont said, adding that two Thai rangers were injured.
Cambodian Council of Ministers spokesman Phay Siphan claimed that the version of events espoused by the Thai Foreign Affairs Ministry was not that held by the Thai military officials stationed at the disputed border. The local Thai commander had met Saturday with RCAF Major General Srey Dek, chief of the Preah Vihear operation, Phay Siphan said, and had apologized after recognizing that his troops were at fault in provoking the incident on Cambodian land.
"Thais locally...asked pardon [of] the Cambodians that it shouldn't have happened like this," Phay Siphan said.
Srey Dek could not be reached for comment Sunday, but Preah Vihear Provincial Deputy Governor Sar Thavy also claimed that the Thai commander had apologized. Thai officials could not be reached for comment concerning the allegation.
But despite their different takes on the incident, both the Cambodian and Thai sides said negotiations on the border dispute would not be affected.
Thai Prime Minister Somchai Wongsawat's is still scheduled to visit Phnom Penh on Oct 13, according to both Chaturont and Koy Kuong.
"The leaders of Thai [and] Cambodian ministries will meet soon to talk about this issue, but I don't think there's any tension now," Chaturont said.
RCAF Region 4 commander Chea Morn said the situation at the temple was stable Sunday.
Thailand and Cambodia issued letters Saturday strongly protesting Friday's armed skirmish in the border area near Preah Vihear temple, with each side blaming the other for starting the incident that left one Cambodian and two Thai soldiers injured.
Foreign Minister Hor Namhong summoned the Thai ambassador Saturday to protest what Cambodia considers a "serious armed provocation" on the part of Thailand, Foreign Affairs Ministry spokesman Koy Kuong said.
"Hor Namhong told the Thai ambassador that Cambodia demands that the royal government of Thailand avoid such incident from recurring in the future," Koy Kuong said.
"Such armed provocation by Thai soldiers could lead to very grave consequences, including full scale armed hostility," warned a letter dated Saturday that Koy Kuong said Hor Namhong handed to Thai Ambassador Viraphand Vacharathit.
The letter states that at 3:30 pm Friday, Thai soldiers entered Cambodian territory near the Preah Vihear temple and fired an M-79 grenade launcher at Cambodian troops stationed there. They returned fire in self-defense and one RCAF soldier was injured, the letter states.
But according to a copy of a Saturday letter from Thailand's Foreign Affairs Ministry to the Cambodian government, Cambodian troops entered Thai territory 1 km west of Preah Vihear temple.
According to the letter, four unarmed Thai paramilitary rangers went to the Cambodian troops to negotiate their withdrawal. As the RCAF soldiers radioed their commander, the Thai rangers overheard him ordering his troops to open fire. The Cambodian troops then fired their guns into the air, prompting the Thai rangers to leave the area.
"[T]he Cambodian soldiers suddenly opened fire at the Thai rangers who were unarmed, prompting the Thai unit stationed nearby to return fire to protect the said Thai personnel in self-defense," the Thai letter read.
"[T]he shooting by the Cambodian troops against the unarmed Thai para-military rangers is regarded as a brutal and aggressive act and is contrary to the spirit of friendly relations between Cambodia and Thailand," it added.
"The incident occurred in Thai territory," said Chaturont Chaiyakam, first secretary of the Thai Embassy in Phnom Penh.
"They returned to the Thai position, and the Cambodians shot them in the back," Chaturont said, adding that two Thai rangers were injured.
Cambodian Council of Ministers spokesman Phay Siphan claimed that the version of events espoused by the Thai Foreign Affairs Ministry was not that held by the Thai military officials stationed at the disputed border. The local Thai commander had met Saturday with RCAF Major General Srey Dek, chief of the Preah Vihear operation, Phay Siphan said, and had apologized after recognizing that his troops were at fault in provoking the incident on Cambodian land.
"Thais locally...asked pardon [of] the Cambodians that it shouldn't have happened like this," Phay Siphan said.
Srey Dek could not be reached for comment Sunday, but Preah Vihear Provincial Deputy Governor Sar Thavy also claimed that the Thai commander had apologized. Thai officials could not be reached for comment concerning the allegation.
But despite their different takes on the incident, both the Cambodian and Thai sides said negotiations on the border dispute would not be affected.
Thai Prime Minister Somchai Wongsawat's is still scheduled to visit Phnom Penh on Oct 13, according to both Chaturont and Koy Kuong.
"The leaders of Thai [and] Cambodian ministries will meet soon to talk about this issue, but I don't think there's any tension now," Chaturont said.
RCAF Region 4 commander Chea Morn said the situation at the temple was stable Sunday.
