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अल्पसंख्यक तथा सीमान्तकृत समुदायको हक-अधिकार संरक्षण समितिले हालै आफ्नो अवधारणापत्र र प्रारम्भिक मस्यौदा पेस गरेको छ, जुन अल्पसंख्यक तथा सीमान्तकृत समुदायको हक-अधिकार संरक्षणका सम्बन्धमा गरेका विभिन्न प्रस्तावहरूमध्ये एउटा प्रस्ताव समानताको हकसँग सम्बन्धित छ । यस अन्तर्गत खण्ड -३) मा राज्यले नागरकिहरूका बीच धर्म, समुदाय, लिंग वा वर्णलगायत कुनै पनि आधारमा कुनै पनि किसिमको भेदभाव गर्ने छैन भन्ने व्यवस्थ्ाासँग सम्बन्धित प्रतिबन्धात्मक वाक्यांश ध्यानाकृष्ट गर्ने खालको छ, जसमा भनिएको छ, ‘तर आर्थिक, सामाजिक, राजनीतिक, शैक्षिक र स्वास्थ्यमा पिछडिएको समुदाय वा वर्गको पहिचान गरी उनीहरूको संरक्षण, विकास र सशक्तीकरणका लागि राज्यले विगतको उत्पीडनको क्षतिपूर्तिसहित सकारात्मक विभेदका आधारमा कानुनद्वारा विशेष व्यवस्था गर्नेछ ।’ 

समितिको अवधारणापत्र वा प्रारम्भिक मस्यौदामा उपरोक्त प्रतिबन्धात्मक वाक्यांशमा परेको ‘विगतको उत्पीडनको क्षतिपूर्तिसहित’ भन्ने पदावलीले केलाई बुझाउन खोजेको हो प्रस्ट हुन सकेको छैन । यस्तो पदावली दलित समुदायको हकमा पनि प्रयोग गरएिको छ । मौलिक हक तथा अधिकारको विधिशास्त्रमा भने यस प्रकारको क्षतिपूर्तिको प्रावधानले गहिरो अर्थ राख्छ । 

सामान्यतया हरेक समाजमा आर्थिक, सामाजिक, राजनीतिक, शैक्षिक तथा स्वास्थ्यको दृष्टिकोणले पछाडि परेका समुदायहरू हुन्छन् । पछाडि पर्नुका विभिन्न कारण हुन्छन् । एउटा प्रमुख कारण राज्यले उनीहरूप्रति चाहिँदो ध्यान दिन नसक्नु पनि हो । तर, कारण जेसुकै भए तापनि त्यसरी पछाडि परेको कारणबाट त्यस्ता समुदायहरू राष्ट्रको मूल प्रवाहबाट क्रमशः सीमान्तकृत हुँदै जान्छन् । यो प्रक्रियालाई नरोक्ने हो भने मुलुकको जनसंख्याको एउटा ठूलो भागले संविधानले सुनिश्चित गरेको मौलिक हक तथा अधिकार प्रयोग गर्न सक्दैन । त्यस्तो प्रक्रियाबाट एउटा न्यायपूर्ण समाजको स्थापना गर्न सकिँदैन । यी विभिन्न कारणहरूले गर्दा त्यस्ता पछाडि परेका अल्पसंख्यक वा सीमान्तकृत समुदायको पहिचान गरी उनीहरूको संरक्षण, विकास र सशक्तीकरणका लागि सकारात्मक विभेदलाई संविधानद्वारा नै स्वीकार गरी विशेष व्यवस्था गर्ने प्रचलन आज सबै प्रजातान्त्रिक मुलुकमा पाइन्छ । तर, यहाँ प्रयोग भएको ‘विगतको उत्पीडनको क्षतिपूर्तिसहित’ भन्ने पदावलीले संवैधानिक कानुनको त्यस्तो विवेचनाभन्दा फरक अर्थ राख्छ । 

कानुन चाहे देवानी प्रकृतिको होस् वा फौजदारी प्रकृतिको, उत्पीडनका लागि क्षतिपूर्ति भन्नु र मुलुकमा पछाडि परेको समुदायलाई सकारात्मक विभेद गरी अगाडि ल्याउने मनसाय राख्नु अलग-अलग कुरा हुन् । ‘उत्पीडन’ वा ‘क्षतिपूर्ति’ भन्ने शब्दले केवल विषयवस्तुको गम्भीरतालाई मात्र होइन, नयाँ परपि्रेक्ष्यलाई पनि समेटेको हुन्छ । जुन रूपमा लेखिएको छ, त्यस रूपमा हेर्दा उपरोक्त प्रतिबन्धात्मक वाक्यांशले नेपालमा उत्पीडक समुदाय छन् तथा ती उत्पीडकका कारणले गर्दा केही अन्य समुदायहरू आर्थिक, सामाजिक, राजनीतिक, शैक्षिक र स्वास्थ्य क्षेत्रमा पिछडिएका हुन् भन्ने निष्कर्ष दिन्छन् । यदि प्रस्तावित लक्ष्य त्यही नै हो भने अल्पसंख्यक तथा सीमान्तकृत समुदायको हक-अधिकार संरक्षण समितिले आरोपित उत्पीडक समुदाय को हो भनेर उल्लेख गर्नुपर्ने हुन्छ । उत्पीडन कसले गर्‍यो त भन्ने कुरोको टुंगो नलागीकन त्यस्तो उत्पीडक समुदायले राज्यलाई आफ्नो उद्देश्यका लागि प्रयोग गरेको हो वा होइन भनेर टुंगो लगाउन सकिँदैन । यदि राज्य सम्बन्धित छैन भने निश्चित रूपमा यसलाई क्षतिपूर्तिको दायित्व सम्बन्धमा जिम्मेवारी बोकाउन सकिँदैन । जबसम्म आरोप नै प्रमाणित छैन, क्षतिपूर्तिको दाबी कसरी लाग्छ, सोचनीय छ । 

त्यसैगरी क्षतिपूर्तिको कुरा उठाउँदा उत्पीडक यो हो भनेर लेखिदिनु मात्र पर्याप्त छैन । उसले दिएको पीडा केका आधारमा प्रमाणित गरएिको हो, सो पनि हेर्नुपर्ने हुन्छ । ‘विगतको उत्पीडन’ भनेर लेख्दा त्यस ‘विगत’ शब्दले कुन कालखण्डलाई जनाउँछ, उत्पीडन कहाँ गरयिो ? र, कति लामो समयसम्म गरयिो भनेर पनि उल्लेख गर्नुपर्ने हुन्छ । यतिले मात्र पुग्दैन । त्यस्तो उत्पीडन खप्ने आर्थिक, सामाजिक, राजनीतिक, शैक्षिक र स्वास्थ्यमा पिछडिएको समुदाय वा वर्गलाई जातीय रूपमा प्रमाणित गर्नुपर्ने हुन्छ । उत्पीडक भनेको यो यस्तो हो भनेर नलेखी यति विस्तृत तथा पहिचान गर्न नसकिने गरी उल्लेख गर्दा यसले कुनै समस्याको समाधान गर्दैन, बरु नयाँ समस्याहरूको उठान भने गर्छ । वास्तवमा उत्पीडन भएको छ भनेर कुनै अड्डा-अदालतको फैसला वा कुनै अन्तर्राष्ट्रिय ट्राइब्युनलहरूको निर्णय, राष्ट्रिय वा अन्तर्राष्ट्रिय आयोगले हस्ताक्षर गरििदएको प्रतिवेदनलाई किटानीका साथ उल्लेख गर्न सक्ने भए त्यसले एउटा लक्ष्य पूरा गथ्र्यो होला । 

उत्पीडक जाति वा वर्गको पहिचान गर्नुका साथै त्यस्तो जाति वा वर्गलेे लगातार रूपमा राज्यलाई अपहरण गरेर आफ्नो अभीष्ट पूरा गरेको पनि देखिनुपर्छ । यसरी जातिगत रूपमा आरोप लगाउँदा एउटा कसुरदार देखाएर पुग्दैन, त्यसको अविच्छिन्न प्रवृत्ति -ट्रेन्ड) पनि देखाउन सक्नुपर्छ । त्यस्तो प्रवृत्तिलाई स्पष्ट रूपमा देखाउन नसक्ने हो भने कुनै उत्पीडकले त्यस्तो पीडित जातजातिलाई समाप्त गर्न खोजेको थियो भन्ने दाबी फितलो हुन जान्छ । यी तथ्यहरूको अभावमा समितिको प्रारम्भिक मस्यौदामा जे उल्लेख गरएिको छ, त्यो विवादास्पद नै हो भनेर मान्नुपर्ने हुन्छ । 

उक्त प्रस्तावित अवधारणापत्र तथा प्रारम्भिक मस्यौदामा जेसुकै गरी क्षतिपूर्तिको विषयलाई उठाइए पनि यसको परण्िााम प्रस्ट छ । यसले नेपालमा उत्पीडक समुदाय छन्, त्यस्ता उत्पीडक समुदायले लगातार रूपमा अन्य समुदायलाई पीडा दिएका छन् भन्ने बुझिन्छ । तर, त्यस्तो उत्पीडित समुदायलाई संविधानले केवल सकारात्मक विभेद वा समावेशीकरण गरेर मात्र पुग्दैन, त्यस्तो ऐतिहासिक उत्पीडनका लागि क्षतिपूर्ति पनि दिनुपर्छ । र, त्यस्तो क्षतिपूर्तिको व्यवस्थाले मात्र अल्पसंख्यक वा सीमान्तकृत वर्गलाई सशक्तीकरण गर्न सक्छ भन्ने मान्यतालाई स्थापित गर्छ । क्षतिपूर्ति राज्यले दिने भन्नुको अर्थ उत्पीडक वर्गले राज्यलाई यद्यपि कब्जा गरेकै छ भन्ने हो । होइन भने क्षतिपूर्तिको प्रश्न नै उठ्दैन । 

क्षतिपूर्तिको कुरा कतिपय मुलुकहरूमा नउठेका भने होइनन् । तर, नेपालमा यसलाई जुन रूपमा उठाइँदैछ, त्यसप्रति सशंकित हुने ठाउँ छ । जस्तो- क्यानाडाको क्युबेक प्रान्त, संयुक्त अधिराज्यमा स्कट तथा वेल्सका बासिन्दा, स्पेनमा क्याटालान्स र बास्कको विद्रोह, बेल्जिएममा फ्लेमिस समुदायको दाबी, इटालीको दक्षिण टाइरोलमा बस्ने जर्मनभाषी अल्पसंख्यक तथा संयुक्त राज्य अमेरकिामा पोर्टोरकिोको प्रश्न छापामा आइरहने विषय हुन् । यी सबै क्षेत्रहरूमा बस्ने बहुमत समुदायले अलग मुलुक भई बस्ने वा त्यसै मुलुकमा रहे पनि क्षेत्रीय स्वायत्ततालगायतका सामुदायिक स्वार्थका विषयहरू उठाएका छन् । त्यो माग उत्पीडनसम्बन्धी माग होइन । 

त्यसै गरी राज्यले केही खास समुदायलाई कुन रूपमा व्यवहार गर्ने भन्नेबारे पनि विभिन्न मुलुकमा छलफल भइरहेको पाइन्छ । चाहे त्यो क्यानाडाका इन्डियन वा इनुइत समुदाय हुन्, चाहे अस्टे्रलियाका आदिवासी वा न्युजिल्यान्डका माओरी समुदाय हुन्, अल्पसंख्यकका बारे छलफल भएको छ । स्क्यान्डिनेभियन मुलुकहरूमा सामी समुदायका मागहरू, ग्रीनल्यान्डमा इनुइत समुदायका अपेक्षा तथा अमेरकिामा रेड इन्डियन जातिको संरक्षण, यी सबै विषयलाई छलफल गर्न सकिन्छ । हामीकहाँचाहिँ किन पर्याप्त छलफल नभईकन यो विषयलाई प्रारम्भिक मस्यौदामा छिराइएको हो, बुझ्न गाह्रै परेको छ । 

संसारका सबै ऐतिहासिक मुलुकहरूझैँ निश्चित रूपमा नेपाल सम्पूर्ण जातजातिको दृष्टिकोणबाट एउटा भेदभावविहीन न्यायपूर्ण समाज थिएन । पूर्वमा वर्मादेखि पश्चिममा अफगानिस्थानसम्म यस हिमवत् खण्डको भोक, रोग र अशिक्षासँग गहिरो नाता छ । त्यसलाई प्रमाणित गररिहनुपर्दैन । यहाँ हत्या पनि भए, हिंसा पनि भए र राज्यले सबैलाई समान रूपमा आफ्नो प्रश्रय शक्तिको प्रयोगबाट संरक्षण दिन पनि सकेन । राज्यको क्षमता तथा दृढताको अभावमा धेरै जातजातिले अहिलेको मान्यताबमोजिम आफ्नो जातीयता, भाषा, संस्कृति तथा पहिचानको उत्थान गर्ने अवसर पाएनन् । प्रजातान्त्रिक व्यवस्थ्ााको अभावका साथसाथै राज्य संगठनहरूको विकास राम्रोसँग भइनसकेको मुलुकमा त्यो सम्भव थिएन । तर, त्यति कुराले मात्र राज्यलाई उत्पीडक भन्न मिल्दैन । 

उत्पीडनको आरोप असाध्यै गम्भीर प्रकृतिको आरोप हो । यसमा उत्पीडकको नियत निर्मल हुँदैन । त्यहाँ सत्तासीन जातिमा ‘हामीहरू’ र ‘उनीहरू’ भन्ने भावना प्रबल रूपमा हुन्छ । एकअर्काप्रतिको घृणाको कुनै सीमा हँुदैन । त्यसैले एकअर्कालाई सम्मान दिने चाहना पनि हुँदैन । यसै परपि्रेक्ष्यमा भएका पाशविकता, हत्या र आतंकले क्रमशः सम्पूर्ण समाजलाई जेल्छ तथा बलियाबाट निमुखाको उत्पीडनका प्रक्रियाहरू सुरु हुन्छन् । त्यस्तो वातावरणमा यो मुलुक चार जात छत्तीस वर्णको फूलबारी हो भन्न्ो भनाइ पनि राजनीतिक रूपमा व्यक्त गरएिको हुँदैन, न त मुलुकको साझा गन्तव्य नै निर्माण गरएिको हुन्छ । 

आधुनिक नेपालका संस्थापक राजा पृथ्वीनारायण शाहलाई सबै गलत प्रवृत्तिहरूको द्योतक बनाइने गरेको छ, अहिले । विजेता र विजितको कुरो पनि उठेका छन् । उनले गरेको राष्ट्रिय एकीकरण सामन्ती थियो होला तर यो न त मध्ययुगको युरोपमा भएको यहुदीहरूको हत्याको लडाइँ नै थियो, न त हामीले केही वर्षअगाडि देखेको बोस्िनया वा हर्जगोभिनाको जातीय युद्ध नै थियो । यसका निश्चित सैद्धान्तिक आधारहरू थिए । नेपाललाई असली हिन्दुस्तान बनाउने आकांक्षा राजा पृथ्वीनारायण शाह र उनीपछिका शासकहरूमा देखिएको थियो । तर, त्यहाँ कसैलाई जातिगत रूपमा समाप्त गर्ने आकांक्षा थिएन । त्यसैगरी एकीकरणका योद्धाहरू बाहुन मात्र थिएनन् । त्यसमा मगर, गुरुङलगायत अन्य जातिहरूकै प्रमुखता थियो । उनले लडाइँ गरेका अधिकांश बाइसे, चौबीसे, मल्ल वा किराँत राज्यका सेनापतिहरू खस नै थिए । त्यो लडाइँ जातियताको ‘प्लेटर्फम’मा लडिएको थिएन । सैनिक वा राजनीतिक अभियानका रूपमा अरू जातिलाई मास्ने धर्म, संस्कार वा कूटनीति नेपालको इतिहासमा पाउन सकिँदैन । 

पृथ्वीनारायण शाहले नुवाकोटमा चढाइ गर्दा प|mान्स र बेलायतका बीच लडाइँ सुरु भइसकेको थियो र भारतमा मुगलहरूको साम्राज्यलाई बि्रटिसहरूले चुनौती दिन थालिसकेका थिए । उनको एकीकरणको प्रयासलाई जातीय रूपमा हेर्नेले उनको जमानाका मुग्लानका औरंगजेबलगायतका शासकहरू र तिब्बतको तत्कालीन शासनमा चीनका मञ्चुवंशका राजाहरूको क्रियाकलापलाई पनि हेर्नुपर्छ । अमेरकिी वा प|mेञ्च क्रान्तिभन्दा अघिका बीभत्स लडाइँ र रक्तपातलाई पनि बुझ्नुपर्छ । सामन्तवाद नै मानिएता पनि एकीकरणको एउटा राजनीतिक परविेश थियो । निश्चित रूपमा त्यस परविेशलाई चाहिएभन्दा बढी बदनाम गर्नुको परण्िाामहरू यो देशको राष्ट्रवादका लागि सही हुनसक्दैन । 

इतिहासलाई मूल्यांकन गर्दा आजको मापदण्डको आधारमा होइन, उसबेलाकै मापदण्डलाई पछ्याउनुपर्छ । कुरा केवल पृथ्वीनारायण शाहको मात्र होइन । आजको मितिसम्म राजा यलम्बरदेखि सुरु भएका प्राचीन किराँतकाल, उनीहरूपछिको लिच्छविकाल, खस राजाहरू, मल्लराज्य वा त्यस कालखण्डका बाइसे-चौबीसे राज्यहरूमा कहाँ, कुन समयमा, कुन जातिलाई कसले र कसरी जेलनेल, देशनिकाला, जातिहत्या वा आफ्नो क्षेत्रबाट जबरजस्ती निष्कासन गरेको थियो, कसैले लेख्न सकेका छैनन् । कहाँ कतिका चिहान खनिए र कुन जातिले कुन जातिलाई सामूहिक चिहानमा सुताएको छ, त्यो देखाउन सक्ने इतिहासकारहरू हामी पाउँदैनाँै । 

उत्पीडन वा जातीयता दुवै नेपालको राष्ट्रिय विकासका कुनै पनि चरणका लागि अपरििचत शब्द हुन् । त्यसो भए मानवताविरोधी अपराध गरेर आजको अन्तर्राष्ट्रिय मानवीय कानुनलाई उल्लंघन गरेको मानिन सक्ने त्यस्ता कर्महरू के हुन्, जसका लागि क्षतिपूर्तिको कुरा उठाइँदैछ ? खासगरी अहिलेका विवादहरूमा मुछ्न खोजिएको खस जातिलाई पीडाबोध हुने गरी आएको यो क्षतिपूर्तिसम्बन्धी व्यवस्थाले राष्ट्र निर्माणलाई तथा हामी सबै नेपाली भन्ने भावनालाई अवश्य पनि मद्दत गर्दैन । 

वास्तवमा क्षतिपूर्तिका बारेमा कुरा गर्दा अलिकति संवेदनशीलता चाहिन्छ । हल्काफुल्का र सतही कुरा गर्दा संविधानसभाजस्तो ठूलो प्रजातान्त्रिक प्रयोगप्रति जनताको विश्वास हराउँछ । अल्पसंख्यक तथा सीमान्तकृत समुदायको मौलिक अधिकारलाई सुनिश्चित गर्नका लागि संविधानसभाले मुलुकलाई यो विवादास्पद विषयमा मुछ्नु जरुरी छैन ।

संवैधानिक कानूनमा विद्यावारिधि गरेका विपिन अधिकारीले नेपाललाई एक बहुजातीय, बहुभाषिक बहु-सांस्कृतिक तथा समावेशी राज्यका रुपमा परिवर्तन गर्ने संवैधानिक प्रणालीको रुपरेखा सिफारिस गरेका छन्। उनले छलफलका लागि भनी सार्वजनिक गरेको नेपालको नमुना संविधान, २०६६ का कतिपय चाखलाग्दा र सान्दर्भिक धाराहरू यहाँ जस्ताको तस्तै उद्धृत गरिएको छः 

प्रदेश विभाजन 
धारा-६ प्रादेशिक क्षेत्र तथा जिल्ला स्वशासन क्षेत्रे 
(१) नेपालमा देहाय बमोजिम प्रादेशिक क्षेत्रहरू रहनेछन्ः- 
(क) सगरमाथा प्रादेशिक क्षेत्र 
(ख) पूर्वी तराई प्रादेशिक क्षेत्र 
(ग) बागमती प्रादेशिक क्षेत्र 
(घ) अन्नपूर्णा प्रादेशिक क्षेत्र 
(ङ) पश्चिम तराई प्रादेशिक क्षेत्र 
(च) कर्णाली प्रादेशिक क्षेत्र 
(छ) महाकाली प्रादेशिक क्षेत्र 

(२) उपधारा (१) बमोजिमका प्रत्येक प्रादेशिक क्षेत्रमा अनुसूची १ बमोजिमका जिल्ला स्वशासन क्षेत्रहरू रहनेछन्। 

(३) नेपालमा साविकदेखि विद्यमान ७५ वटै जिल्लाहरू जिल्ला स्वशासन क्षेत्रका रूपमा कायम गरिएका छन्। 

(४) राष्ट्र वा राष्ट्रिय सरकारको आफ्नो छुट्टै भौगोलिक क्षेत्र हुने छैन। यसलाई आवश्यक पर्ने भौगोलिक क्षेत्र यसले संसद्द्वारा निर्मित कानूनद्वारा कुनै पनि प्रादेशिक क्षेत्रसँग चाहेबमोजिम प्राप्त गर्न सक्नेछ। 

(५) धारा २३४ बमोजिम तत्काल स्वायत्त हुन नचाहने प्रादेशिक क्षेत्रहरू राष्ट्रिय सरकारअन्तर्गतका क्षेत्र मानिनेछन्। 

(६) धारा ६ बमोजिमको प्रादेशिक क्षेत्र तथा अनुसूची १ बमोजिमको जिल्ला स्वशासन क्षेत्रको सीमा यस संविधान लागू भएको दश वर्षभन्दा अघि परिवर्तन गरिने छैन। 

प्रादेशिक स्वशासन तथा स्वायत्तता 

धारा-१४६ राज्यशक्तिको स्वरुपे 

(१) नेपालको राज्य शक्ति राष्ट्र तथा प्रादेशिक क्षेत्रहरूले यस संविधानमा उल्लेख गरिए बमोजिम प्रयोग गर्नेछन्। 

(२) राष्ट्रले नेपालको एकता, अखण्डता तथा सार्वभौमसत्ता तथा मुलुकको दीर्घकालीन स्वार्थ तथा प्रजातान्त्रिक प्रणालीको संरक्षण गर्नेछ। 

(३) प्रादेशिक क्षेत्रहरूले सम्बन्धित प्रादेशिक क्षेत्रमा बसोबास गर्ने सबै नेपाली जनताको पहिचान, स्वशासन तथा स्वायत्तताको प्रत्याभूति दिनेछन्। 

(४) प्रत्येक प्रादेशिक क्षेत्रले आफ्नो क्षेत्रका जिल्ला स्वशासन क्षेत्रहरूलाई जातीय पहिचान, स्वशासन तथा स्वायत्तताका लागि आवश्यक सहयोग तथा संरक्षण प्रदान गर्नेछ। 

(५) यस संविधानमा व्यवस्था भएबमोजिम स्वशासनका लागि आत्मनिर्णयको अधिकार प्रत्येक प्रादेशिक क्षेत्रको जनतालाई प्राप्त हुनेछ। प्रादेशिक कार्यकारिणी व्यवस्था 

धारा-१४७ क्षेत्रनायकको नियुक्ति 

(१) प्रत्येक प्रादेशिक क्षेत्रमा राष्ट्राध्यक्ष आफैंले प्रमाणित गरी उक्त क्षेत्रको प्रादेशिक प्रमुखको रूपमा एक क्षेत्रनायकको नियुक्ति गर्नेछ। 

(२) क्षेत्रनायकको पदावधि नियुक्ति भएको मितिले पाँच वर्षको हुनेछ। तर, आफ्नो पदावधि समाप्त भइसकेपछि पनि आफ्नो उत्तराधिकारीले पद ग्रहण नगरेसम्म क्षेत्रनायक आफ्नो पदमा बहाल रहनेछ। 

धारा-१४८ क्षेत्रनायकको निर्वाचने 

(१) क्षेत्रनायकमा नियुक्ति हुनका लागि प्रत्येक प्रादेशिक क्षेत्रमा हरेक पाँच वर्षमा वैशाख पूर्णिमाका दिनबाट शुरु भएको सात दिनभित्र राष्ट्राध्यक्षबाट तय गरेको मितिमा क्षेत्रनायकको निर्वाचन हुनेछ। तर, यस संविधान लागू भएपछिको क्षेत्रनायकको पहिलो निर्वाचन डेढ वर्षभित्र राष्ट्राध्यक्षले तय गरेको मितिमा गरिनेछ। 

(२) प्रत्येक प्रादेशिक क्षेत्रको अठार वर्ष उमेर पुगेका सम्पूर्ण नागरिकले बालिग मताधिकारका आधारमा गोप्य मतदानद्वारा क्षेत्रनायकको निर्वाचनमा प्रत्येक पाँच वर्षमा भाग लिन पाउनेछ। 

(३) कुल खसेको मतको पचास प्रतिशतभन्दा बढी मत नल्याई कोही व्यक्ति क्षेत्रनायकमा निर्वाचन भएको मानिने छैन। 

(४) उपधारा (१) बमोजिम भएको मतदानमा कुनै व्यक्तिले पनि ५० प्रतिशत वा सोभन्दा बढी मत ल्याउन नसकेको अवस्थामा सबैभन्दा बढी मत ल्याउने अघिल्ला दुई उम्मेदवारबीच पुनः निर्वाचन गराइनेछ। 

(५) उपधारा (१) बमोजिमको निर्वाचनमा उम्मेदवारी दिने क्षेत्रनायक पदको उम्मेदवारले चुनाव जितेको खण्डमा आफूले उपक्षेत्रनायकको रूपमा नियुक्ति गर्ने व्यक्तिको नाम समेत संलग्न गर्नुपर्नेछ। 

(६) उपधारा (५) बमोजिम नाम संलग्न गर्दा क्षेत्रनायक पदका उम्मेदवार तथा उपक्षेत्रनायक एकै लिङ्ग, जातजाति वा एकै जिल्ला स्वशासन क्षेत्रका व्यक्ति हुने छैनन्। 

प्रादेशिक सभा 

धारा-१६६ प्रादेशिक सभा 

(१) प्रत्येक प्रादेशिक क्षेत्रमा एउटा एक सदनात्मक सभा रहनेछ, जसलाई प्रादेशिक सभा भनिनेछ। 

(२) प्रादेशिक सभा उक्त प्रदेशको व्यवस्थापिका हुनेछ। 

धारा-१६७ प्रादेशिक सभाको गठने 

(१) प्रादेशिक सभामा संसद्बाट पारित गरिएको ऐनबमोजिम निर्वाचित २७ जना तथा क्षेत्रनायकको सिफारिसमा राष्ट्राध्यक्षबाट मनोनीत ८ जना सदस्य रहनेछन्। 

(२) प्रादेशिक सभाका सभासद्हरूको निर्वाचनका लागि प्रत्येक प्रादेशिक क्षेत्रको जिल्ला स्वशासन क्षेत्रलाई निर्वाचन जिल्ला कायम गरी निर्वाचन हुनुभन्दा अघिको राष्ट्रिय जनगणनाबाट निश्चित भएको जनसङ्ख्याको आधारमा ती जिल्ला स्वशासन क्षेत्रको जनसङ्ख्या सभासद् सङ्ख्याका बीचको अनुपात यथासम्भव समान हुनेगरी प्रत्येक जिल्ला स्वशासन क्षेत्रको जनसङ्ख्याको आधारमा सो जिल्ला स्वशासन क्षेत्रबाट निर्वाचित हुने सभासद् सङ्ख्या निर्धारित गरी सो सङ्ख्याका लागि हरेक निर्वाचन जिल्लाबाट पहिलो हुने निर्वाचित हुने निर्वाचन पद्धतिबमोजिम निर्वाचन गरिनेछ। तर, जनसङ्ख्या जतिसुकै कम भए पनि हरेक जिल्ला स्वशासन क्षेत्रबाट कम्तीमा एकजना सभासद्को निर्वाचन हुने व्यवस्था सबै प्रादेशिक क्षेत्रका लागि बन्धनकारी हुनेछ। 

(३) उपधारा (२) बमोजिमको निर्वाचनमा भाग लिने राजनीतिक दलले प्रादेशिक जनसङ्ख्यालाई मध्यनजर राख्दै पूर्ण समावेशिताको आधारमा उम्मेदवारहरूको चयन गर्नेछ। 

(४) उपधारा (३) बमोजिम समावेशिताको आधारमा उम्मेदवारी दिई चुनाव सम्पन्न भए पनि निर्वाचित प्रादेशिक क्षेत्रका सभासद्हरूको स्वरुप समावेशी हुन नसकेको अवस्थामा उपधारा (१) बमोजिम राष्ट्राध्यक्षबाट मनोनीत हुने सभासद्हरूको चयन गर्दा त्यो कमीलाई पूरा गरिनेछ। 

(५) प्रत्येक ६ वर्षमा वैशाख पूर्णिमाका दिनबाट शुरु भएको पन्ध्र दिनभित्र प्रादेशिक सभाका लागि निर्वाचन गरिनेछ। तर, यो संविधान लागू भएपछिको प्रादेशिक सभाको पहिलो निर्वाचन डेढ वर्षभित्र राष्ट्राध्यक्षले तय गरेको मितिमा गरिनेछ। 

(६) उपाधारा (५) मा जुनसुकै कुरा लेखिएको भए तापनि देशमा सङ्कटकालीन स्थितिको घोषणा लागू रहेको अवस्थामा एक वर्षमा नबढ्ने गरी राष्ट्रिय कानूनद्वारा प्रादेशिक सभाको कार्यकाल बढाउन सकिनेछ। 

(७) उपधारा (६) बमोजिम वृद्धि गरिएको प्रादेशिक सभाको कार्यकाल सङ्कटकालीन स्थितिको घोषणा खारेज भएको मितिले ६ महिना पुगेपछि स्वतः समाप्त हुनेछ। 

(८) यस संविधानको अधीनमा रही प्रादेशिक सभाका सभासद्हरूको निर्वाचन एक व्यक्ति एक मतको आधारमा गोप्य मतदानद्वारा कानूनमा व्यवस्था भए बमोजिम हुनेछ। 

(९) १८ वर्ष उमेर पूरा भएको सम्बन्धित प्रादेशिक क्षेत्रमा बसोबास गर्ने प्रत्येक नेपाली नागरिकलाई कानूनमा व्यवस्था भएबमोजिम कुनै एक निर्वाचन क्षेत्रमा मतदान गर्ने अधिकार हुनेछ। 

(१०) प्रादेशिक सभाका सभासद्को लागि हुने निर्वाचनमा उक्त प्रादेशिक क्षेत्रमा मतदान गर्ने अधिकार पाएको कुनै पनि व्यक्ति प्रचलित कानूनको अधीनमा रही सम्बन्धित प्रादेशिक क्षेत्रको कुनै पनि निर्वाचन क्षेत्रबाट उम्मेदवार हुन पाउनेछ। 

(११) प्रादेशिक सभाको रिक्त हुन आउने स्थानको पूर्ति सो स्थान रिक्त गर्ने सभासद्को निर्वाचन वा मनोनयन जुन तरिकाले भएको हो सोही तरिकाले निर्वाचन वा मनोनयनद्वारा गरिनेछ। 

(१२) प्रादेशिक सभाको कुनै सभासद्को पदावधि बाँकी छँदै निजको स्थान रिक्त भएमा बाँकी पदावधिको लागि सो स्थानको पूर्ति निर्वाचन वा मनोनयनद्वारा गरिनेछ। 

(१३) यस धारामा लेखिएका कुराहरूको अधीनमा रही प्रादेशिक सभाको निर्वाचन र सोसम्बन्धी अन्य कुरा राष्ट्रिय कानूनमा व्यवस्था भएबमोजिम हुनेछ। 

धारा-१७२ प्रादेशिक सभाको अध्यक्ष र उपाध्यक्ष 

(१) प्रादेशिक सभाले आफ्ना सभासद्हरूमध्येबाट एकजना अध्यक्ष र एकजना उपाध्यक्षको निर्वाचन गर्नेछ। अध्यक्ष वा उपाध्यक्षको पद रिक्त भएमा सभासद्हरूमध्येबाट निर्वाचन गरी रिक्त स्थानको पूर्ति गर्नेछ। 

(२) प्रादेशिक सभाको अध्यक्षको अनुपस्थितिमा उपाध्यक्षले प्रादेशिक सभाको अध्यक्षता गर्नेछ। 

(३) प्रादेशिक सभाको अध्यक्ष र उपाध्यक्षको निर्वाचन नभएको वा दुवै पद रिक्त भएको अवस्थामा प्रादेशिक सभाको बैठकको अध्यक्षता उपस्थित सभासद्हरूमध्ये उमेरको हिसाबले ज्येष्ठ सभासद्ले गर्नेछ। 

धारा-१७३ प्रादेशिक सभाका कर्तव्यहरू 

प्रादेशिक सभाको कर्तव्य देहायबमोजिम हुनेछन्ः- 
(क) प्रादेशिक कानूनको निर्माण, 
(ख) प्रचलित प्रादेशिक कानून वा विधायिकी नीतिहरूको सम्मिलन, संशोधन वा खारेजी, 
(ग) सामाजिक, सांस्कृतिक, आर्थिक तथा प्रविधिसँग सम्बन्धित विकास कार्यक्रमको प्रमाणीकरण, 
(घ) क्षेत्रनायकद्वारा प्रस्तावित प्रदेशको बजेटको प्रमाणीकरण, 
(ङ) प्रशासनिक इकाइहरूको सिर्जना गर्ने, यसलाई आवश्यक सुधार गर्ने वा खारेज गर्ने, 
(च) क्षेत्रनायकले धारा १६२ बमोजिम राजनीतिक वा अन्य उच्च पदहरूमा कसैलाई नियुक्त गर्ने प्रस्ताव गर्दा सो प्रस्तावलाई सम्पुष्टी गर्ने, र 
(छ) यस संविधान बमोजिम अन्य कार्यहरू गर्ने। 

धारा-१६२ राजनीतिक तथा संवैधानिक नियुक्तिहरू 

धारा १७५ संपुष्टिकरणको सुनुवाईे मा उल्लिखित प्रक्रिया बमोजिम प्रत्येक प्रादेशिक क्षेत्रका प्रादेशिक लोक सेवा आयोगका आयुक्त तथा उप आयुक्त, प्रादेशिक अख्तियार दुरुपयोग अनुसन्धान आयोगका आयुक्त तथा उप आयुक्त, प्रादेशिक महिला आयोगका आयुक्त तथा उप आयुक्त, प्रादेशिक अदालतको मुख्य न्यायाधीश र अन्य न्यायाधीशहरू, जिल्ला स्वशासन क्षेत्र अदालतका मुख्य न्यायाधीश र अन्य न्यायाधीश लगायतका प्रादेशिक कानूनअन्तर्गतका उच्च अधिकृतको नियुक्ति क्षेत्रनायकले गर्नेछ। 

शासनाधिकारको व्यवस्थापन 
धारा-२०५ प्रादेशिक क्षेत्रका शासनाधिकारहरू 
(१) प्रत्येक प्रादेशिक क्षेत्रलाई यस संविधान बमोजिम, अरू प्रादेशिक क्षेत्रलाई वा समग्र राष्ट्रलाई नकारात्मक असर नगर्ने गरी आफ्ना क्षेत्रका सम्पूर्ण विषयहरूमा शासनाधिकार तथा आत्मनिर्णयको अधिकार प्राप्त हुनेछ। 

(२) उपधारा (१) को सर्वसामान्यतामा असर नपर्ने गरी देहायका विषयउपर प्रत्येक प्रादेशिक क्षेत्रको अधिकार कायम हुनेछः- 

(क) प्रादेशिक आन्तरिक सार्वजनिक सुरक्षा, (ख) सार्वजनिक स्वास्थ्य, स्वच्छ वातावरण, अस्पताल तथा औषधालय, 
(ग) सबै तहका शिक्षा, अनुसन्धान, खेलकुद तथा ज्ञान उद्योग, 
(घ) कृषि, सिंचाइ, पशुपालन तथा यसमा आधारित स्थानीय जनजीविका, 
(ङ) प्रादेशिक वनजङ्गल, वन्यजन्तु प्रादेशिक सिंचाइ, भू-क्षय नदी नियन्त्रण तथा सम्पदा संरक्षण, 
(च) खानेपानी तथा प्रादेशिक सिंचाइ, कृषिको व्यावसायीकरण, कृषि ऋण तथा कृषि विकास बैंकहरू, 
(छ) प्रादेशिक भूमिसुधार, 
(ज) प्रादेशिक निर्माण तथा यातायात, भौतिक लगानी तथा नगर विकास, 
(झ) भाषा, संस्कृति तथा धर्म, 
(ञ) पर्यटन विकास, 
(ट) प्रादेशिक उद्योग, व्यापार, व्यवसाय तथा सहकारिता, 
(ठ) प्रादेशिक उत्पादन, आपूर्ति तथा वितरण, 
(ड) प्रादेशिक संस्थानहरूको व्यवस्था, 
(ढ) कम्पनी स्थापना तथा विघटन, 
(ण) फाटका खेलाउने वा जुवाघर सञ्चालनसम्बन्धी व्यवस्था, 
(त) प्रादेशिक सार्वजनिक सेवा, 
(थ) स्वरोजगारको अवसर तथा लोक-कल्याणकारी कार्यक्रमहरू, 
(द) कृषि आयमा कर, कृषि जग्गा-उत्तराधिकारी कर, जग्गा जमिनबाट उठाइने राजस्व, ढुवानी वा यात्रा कर, मनोरञ्जन कर, 
(ध) जाँडरक्सी वा अन्य मदिरा कर, 
(न) प्रादेशिक कारागार, सुधारगृह तथा दण्ड प्रशासन, 
(प) बजार तथा मेला, 
(फ) माथि उल्लिखित विषयहरूमध्ये कुनै विषयसँग सम्बन्धित प्रादेशिक कानूनहरू विरुद्धको अपराध। 

(३) उपधारा (१) र (२) को सर्वसामान्यतामा असर नपर्ने गरी यो संविधान बमोजिम प्रत्येक प्रादेशिक क्षेत्रको देहाय बमोजिमका विषयहरूमा निर्णयाधिकार सुनिश्चित हुनेछः- 

(क) कार्यपालिकीय, विधायिकी तथा न्यायिक शक्तिहरू प्रयोग गर्ने स्वायत्त अधिकार, 
(ख) राष्ट्रिय सरकारको पूर्ण अधिकारमा नपर्ने कुनै विषयका सम्बन्धमा यस संविधान र प्रादेशिक क्षेत्रका ऐनकानून एकअर्कासँग बाझ्िन गएमा सम्बन्धित प्रादेशिक क्षेत्रले त्यस्तो ऐनकानूनको प्रयोगलाई त्यस प्रादेशिक क्षेत्रका सम्बन्धमा संशोधन गर्ने अधिकार, 
(ग) प्रादेशिक क्षेत्रहरूले राष्ट्रिय सरकारबाट उनीहरूको कर्तव्य तथा उत्तरदायित्वलाई निर्वाह गर्न पुग्नेगरी राष्ट्रिय आयको समन्यायिक अंश प्राप्त गर्ने अधिकार, 
(घ) खण्ड (ग) बमोजिम राष्ट्रिय आयको समन्यायिक अंश प्राप्त गर्ने अधिकार कार्यान्वयन गर्दा सम्बन्धित प्रादेशिक क्षेत्रको उपलब्ध स्रोतहरू, स्थानीय आवश्यकता तथा प्रादेशिक जनसङ्ख्याको प्रतिशतलाई ध्यानमा राखिनुपर्ने अधिकार, 
(ङ) आफ्नो प्रादेशिक क्षेत्रको प्रशासनिक आवश्यकता आफैं पहिचान र कार्यान्वयन गर्ने अधिकार, 
(च) स्थानीय प्रहरी तथा नागरिक सुरक्षा व्यवस्था आफैं निर्माण गर्ने अधिकार। 

(४) प्रत्येक प्रादेशिक क्षेत्रमा रहेका आदिवासी जनजातिका सम्बन्धमा यो संविधान बमोजिम उक्त प्रादेशिक क्षेत्रका प्रादेशिकसभाले स्थानीय आवश्यकताअनुसार कानून बनाई निम्न सकारात्मक अधिकारहरू सुनिश्चित गर्नेछन्ः- 

(क) आदिवासी जनजातिहरूको अस्तित्व, मानवअधिकार, आधारभूत स्वतन्त्रता, आफ्नो चलिआएको रीतिरिवाज, परम्परागत कानूनको सम्मान, आफ्नो विषयमा वा आफूलाई प्रत्यक्ष प्रभाव पार्ने विषयमा परामर्श, छलफल र सहभागी हुन पाउने अधिकार, 
(ख) भूमि तथा प्राकृतिक स्रोत-साधनमाथिको अधिकार, शिक्षामा सामान पहुँचको अधिकार, रोजगारीको समान अवसर र पहुँचको अधिकार, ट्रेड युनियन गठन गर्न पाउने अधिकार, स्वास्थ्य एवं परम्परागत उपचार विधिलाई संरक्षण, सम्बर्द्धन गर्न पाउने अधिकार र आदिवासी जनजातिहरूको प्रथा र प्रथाजनित कानूनलाई निरन्तरता दिने अधिकार, 
(ग) अन्य जातिहरूसरह सबै प्रकारको नीति निर्माण गर्ने, निर्वाचित तथा अरू नीति तथा योजना बनाउने निकायहरूमा आदिवासी जनजातिहरूले समान सहभागी हुन पाउने अधिकारको प्रत्याभूतिको लागि उचित संयन्त्र बनाउनुपर्ने, त्यसका लागि सरकारले उचित व्यवस्थापन सहजीकरण र आवश्यक स्रोत-साधन जुटाइदिनुपर्ने अधिकार, 
(घ) आदिवासी जनजातिको जनजीवन, आस्था, विश्वास र निजहरूले भोजचलन गरिआएको कार्यक्रमहरूको तर्जुमा, कार्यान्वयन र त्यसको मूल्याङ्कनमा सहभागी हुन पाउने अधिकार। 

(५) यस संविधान बमोजिम राष्ट्रिय सरकार तथा प्रादेशिक सरकारबीचका शासकीय शक्तिहरू एक-अर्कासँग बाझ्िन गएमा प्रादेशिक सरकारको कानून नै मान्य हुनेछ। 

धारा-२२५ जिल्ला स्वशासन क्षेत्र 
(१) प्रत्येक जिल्ला स्वशासन क्षेत्रको जिल्ला स्वशासन परिषद्को प्रमुखका रूपमा एक जिल्ला नायकको निर्वाचन गरिनेछ। 

धारा-२२८ नगर स्वशासन क्षेत्र सभा 
(१) जिल्ला स्वशासन क्षेत्रभित्रका प्रत्येक नगर स्वशासन क्षेत्रका लागि एक नगर स्वशासन क्षेत्र सभाको गठन गरिनेछ। 

धारा -२२९ गाउँ स्वशासन क्षेत्र सभा 
(१) जिल्ला स्वशासन क्षेत्रभित्रका प्रत्येक गाउँ स्वशासन क्षेत्रका लागि एक गाउँ स्वशासन क्षेत्र सभाको गठन गरिनेछ। 

धारा-२३४ तत्काल स्वायत्त हुन नचाहने प ्रादेशिक क्षेत्र सम्बन्धी व्यवस्था 
(१) यस भागमा स्वशासन तथा स्वायत्तता सम्बन्धमा जुनसुकै कुरा लेखिएको भए तापनि प्रादेशिक क्षेत्रका रूपमा कायम गरिएका तर भौतिक पूर्वाधार, आर्थिक स्थिति, शैक्षिकस्तर, स्थानीय क्षमतालगायत विभिन्न कारणले तत्काल स्वायत्त हुन नचाहने प्रादेशिक क्षेत्रको प्रशासन तथा यस भाग बमोजिमका अन्य जिम्मेवारीहरू राष्ट्रिय सरकारले बहन गर्नेछ। 

अनुसूची १ 
धारा ६ सँग सम्बन्धित प्रादेशिक क्षेत्र तथा जिल्ला स्वशासन क्षेत्र 

धारा ६ अन्तर्गतका प्रादेशिक क्षेत्रभित्र देहाय बमोजिमका जिल्ला स्वशासन क्षेत्रहरू पर्नेछन्ः- 

(क) सगरमाथा प्रादेशिक क्षेत्रः- ताप्लेजुङ, पाँचथर, इलाम, झ्ापा, संखुवासभा, तेह्रथुम, भोजपुर, धनकुटा, सोलुखुम्बु, ‘खलढुङ्गा, खोटाङ र उदयपुर। 
(ख) पूर्वी तराई प्रादेशिक क्षेत्रः- मोरङ, सुनसरी, सप्तरी, सिरहा, धनुषा, महोत्तरी, सर्लाही, रौतहट, बारा र पर्सा। 
(ग) बाग्मती प्रादेशिक क्षेत्रः- काठमाडौं, भक्तपुर, ललितपुर, दोलखा, रामेछाप, सिन्धुली, सिन्धुपाल्चोक, काभ्रेपलाञ्चोक, धादिङ, मकवानपुर, चितवन, रसुवा, नुवाकोट र नवलपरासी। 
(घ) अन्नपूर्णा प्रादेशिक क्षेत्रः- गोरखा, लमजुङ, तनहुँ, मनाङ, कास्की, स्याङ्जा, पाल्पा, म्याग्दी, बाग्लुङ, पर्वत, गुल्मी र अर्घाखाँची। 
(ङ) पश्चिम तराई प्रादेशिक क्षेत्रः- रुपन्देही, कपिलवस्तु, दाङ, बाँके, बर्दिया, कैलाली। 
(च) कर्णाली प्रादेशिक क्षेत्रः- डोल्पा, रुकुम, रोल्पा, प्युठान, जाजरकोट, सल्यान, सुर्खेत, मुस्ताङ, दैलेख, कालीकोट र जुम्ला। 
(छ) महाकाली प्रादेशिक क्षेत्रः- हुम्ला, मुगु, कन्चनपुर, डडेलधुरा, डोटी, अछाम, बैतडी, बाजुरा, बझ्ाङ र दार्चुला। 

(यसको पूर्ण भाग डा.अधिकारीको नेपालको नमुना संविधान, २०६६ मा पढ्न सकिनेछ।)
 

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One of the hallmarks of the Liberian Civil War war which broke out on December 28, 1989 has been the proliferation of armed factions, all of which targeted civilians and were responsible for massacres and systematic human rights abuses, and none of which was fighting for any recognizable cause or ideology.

Since the outbreak of armed violence up to September 2003, tens of thousands of innocent Liberians have been brutally murdered in cold blood by armed factions that fought to have state power by force. The war has also been characterized by the extensive use of child soldiers, boys younger than fifteen years old who were easy prey for all the factions.

The massacres included here are based on sources available on the Internet. There is no guarantee of the authenticity of these details.

Grand Kru – Massacre of September 18, 1998
The security forces in Grand Kru attacked the loyalists of Roosevelt Johnson, the leader of a faction on Friday, September 18, on four locations at about six o’clock local time in the evening.

It was a pre-emptive strike by a column of well-armed troops under the command of Chucky Taylor, the president’s son. In a nation-wide radio statement shortly after the attack, Charles Taylor congratulated his men for what he described as a “surgical operation with precision and swiftness.” This “surgical operation”, however, resulted into a national tragedy in which more than 1000 people were killed.

Two days after the shooting, the government officially announced that only 15 persons lost their lives. Relief workers from the Red cross and the French NGO, Medicin Sans Frontier, reported that they had buried more than 40 bodies. Local hospitals reported that they had more than 100 bodies in their morgues.

The Lutheran Church Massacre
The massacre in the Saint Peter’s Lutheran Church in Sinkor, Monrovia, during the early days of the Liberian-Civil War is also one of the most brutal massacres. This was the largest Lutheran congregation in the country with three services held every Sunday.

During July and early August, over 900 people sought shelter here. On Sunday, July 29, 1990, at about 7 PM, over 200 soldiers from the Armed Forces of Liberia (AFL), headed by an infamous Liberian named Charles Julu, invaded the church, murdered 600 innocent Liberian civilians — mostly Gios and Manos, including many women with children –, and wounded 150 others.

A survivor recounted what had happened: “The soldiers shot the door open, and took all the food they could see inside, and they killed the woman who had the key to the [church’s] warehouse, after raping her. Guards stood at the gate and we stayed inside. Nobody could leave, and then it got dark, and the soldiers came back the same night… There were around 200 [AFL] soldiers who came in. And they began cutting a boy with a knife, and they cut and cut everybody with their knives and machetes.”

Some say the assaulters were people loyal to the late president Samuel K. Doe, himself assassinated by President Charles Taylor’s forces. It is reported that President Samuel Doe stood by and watched as the massacre took place. . One of those who died in the massacre was Taylor’s own father.

There are two mass graves in the church compound even now. Another leader of the massacre, Michael Tilly, had committed numerous acts of grotesque violence before and enjoyed the protection of individuals within the AFL and the government. The AFL’s victimization and murders of civilians was ostensibly meant to discourage recruitment to the National Patriotic Front of Liberia (NPFL).

Cow Field, Duport Massacre
About 48 people (civilians) were massacred and burnt by Paul Vaye, Sam Lartee and other soldiers, whilst they were asleep at their homes on Cow field, Duport Road in the Paynesville area. The perpetrators of these msssacres have yet to be identified, although residents of the areas have pointed fingers at Taylor’s NPFL. They were buried in a mass grave in the Palm Grove Cemetery on Center Street.

The massacre was reported by the News Newspaper on December 19, 1994 Vol. 5 # 151 and mentioned

Harbel Massacre of June 6, 1993
On June 6, a group of armed fighters slaughtered over 500 displaced persons, mostly women and children, at a settlement on the Firestone plantation at Harbel.

Over 600 men, women and children were hacked to death by the NPLF in what became known as the Carter Camp Massacre in Harbel, Margibi County on June 6, 1993. The Armed Forces of Liberia under the command of then C-I-C Dr. Amos C. Sawyer was said to have committed the atrocities because goods looted from the dead were found dumped around AFL positions in Firestone rubber plantations.

A U.N. investigation team, comprised of three eminent international lawyers and human rights advocates, concluded in a September report that the AFL committed the act and cited substantial evidence supporting this finding. AFL soldiers were also caught in possession of property looted from the settlement. The Interim Government and the AFL disputed the U.N. team’s finding, insisting on NPFL culpability.

Three AFL soldiers whom the U.N. report identified as key participants in the massacre were initially ordered held by IGNU but were never actually detained or arrested by IGNU or AFL authorities.

Some other massacres
Massacre in Yarsonnoh, Nimba County in Feb. 1990: A group of AFL soldiers led by Capt. James Celly, Hon. Donzo, Commissioner residing in Ganta, killed 71 persons in Yarsonnoh and burned 52 houses in that town.

Massacre in Ganta,Nimba County in Feb. 1990: A group of AFL soldiers headed by Edwin Voker, Commissioner of Sacleapea Mah, Vakaba Bility and Mr. Biabia entered Karnwee,Nimba County and arrested 18 young men under the guise of being NPFL facilitators. The victims were taken to Ganta and murdered.

Massacre inNimba County in March 1990: Paul Vaye, George Mansuo, Tarkpor Gweh and men assigned with them arrested Moses Duopue, Stephen Daniels and some of their family members and killed them in Tiaplay,Nimba County. They allegedly acted on the orders of the then Maj. Charles Taylor.

Massacre inMonrovia in June 1990: Moses Thomas, Moses Wright, James Chelly, George Dweh and Tailey, in consultation with President Doe, massacred 27 Gio and Mano families that were members of the AFL and residing at the BTC barracks. They were buried on the beach behind the BTC.

Massacre in Bakedu,Lofa County in July 1990: G. Anthony Mehn, Joe Doe and their bodyguards murdered about 32 persons of the Mandingo ethnic group inBakedu Lofa County. The murderers were fighters of NPFL.

Massacre in Monrovia in 1990: George Dweh eliminated the Johnny Nah family inMonrovia.

Massacre in Monrovia on August 2, 1990: GeorgeDweh led a group of AFL soldiers to the JFK hospital and massacred 250 persons, most of who were Gios and Manos ethnic groups. Zmajority of them were seeking refuge at the hospital compound while others were arrested at the gate that was placed on the boulevard at the hospital entrance.

Incursion intoSierra Leone in March 1991: Dopoe Menkarzohn, Charles Tingban, Nixon Gaye, Timothy Mulbah and Christopher Varmo crossed intoSierra Leone with about 350 men, armed with assorted weapons as the beginning of the RUF incursion. These men were trained on fair grounds in Buchanan,Grand Bassa County, by a group of Gambians headed by Dr. Manneh.

Massacre in Zorzor,Lofa County in May 1991: Mangouhb Menior of the NPFL murdered 16 persons of the Mandingo and Gbandi ethnic groups in Zorzor. The victims were accused of being enemies of the revolution launched by Charles Taylor. Menlor was temporarily detained by Isaac Musa and later released on parole.

Massacre in Kakata –Bong Mines Highway in 1991: An NPFL fighter code named “Mike Tyson” placed 73 person in a house and burned them to death in a place called “compound” on the Kakata – Bong Mines Highway. The victims arrested as suspected ULIMO fighters.

Murder inZorgowee Town, Nimba County on October 20, 1991: Paul Vaye, Henry Kerdiah, George Mansuo and George Karsuo arrested Jackson F. Doe in Buchanan,Grand Bassa County, on the orders of Charles Taylor and murdered him in the Nimba Town of Zorgowee.

Slain in Gardnersville,Montserrado County in October 1992 as reported by JPC investigation: During the infamous “Operation Octopus” launched by NPFL, five Catholic Nuns were slain in the area. Christopher Varmo and Edward Wowah carried out this operation.

Summary Execution at Horton’s Farm, Kakata,Margibi County in October 1992: Martina Johnson, NPFL artillery commander ordered the execution of 23 person arrested in Bong Mines as suspected fighters of ULIMO.

Massacre in firestone, Margibi county on December 26, 1992: Joseph Zackor, alias “Gen. Zack”, Nixon Gayor, Francis Duanna and men assigned with them massacred 35 persons at the Firestone Plantations, division No. 31 while escaping the ULIMO incursion in Kakata.

Massacre in Voinjama,Lofa County on January 2, 1993: Cllr. Lavalla Supuwoo ordered and witnessed the execution of 18 persons in Voinjama. The blood of the victims was drained in a white bucket for use best known to him.

Massacre at Carter Camp, in Margibi County on June 6/7, 1993 as reported by survivors/residents of Harbel,Margibi County: Nixon Gaye, Francis Duana, Melvin Sobani, Fasue along with their soldiers slaughtered close to 600 men, women and children in cold blood from 0100hrs to 0300hrs. This mission was set up to discredit the efforts of ECOMOG. The victims are said to be buried on the outskirts of the camp.

Summary execution in Gbarnga,Bong County on May 11, 1993: Saar Gbollie executed 17 persons in the Gbarnga MP cell while serving as deputy MP commander for the Executive Mansion Presidential Guard Force (EMPPGF). The victims were arrested in Lofa on suspicion of being ULIMO fighters.

Massacre in Ganta,Nimba County in August 1993: Matthew Cheplay, commander of “Wild Geese” and his men killed 21 persons in Ganta while in route to Sinoe and wanted to loot fuel from a trader. This incident claimed the lives of William Gensee, the wife, and three children of Samuel Luogon.

Massacre at LAC,Grand Bassa County on August 19,1993: Gen. Coo coo Dennis killed 26 persons in LAC when they were accused of being supporters of LPC.

Massacre inGreenville,Sinoe County in 1993 reported by Mr. David Swen (acting hospital administrator)/ The National Newspaper December 19, 1996 Vol. #62: More than 100 humans skeletons were discovered at theFrancis J. Grant Hospital inGreenville, Sinoe County. According to Mr. David Swen, the acting hospital administrator at the time, the skeletons were of people taken captive by LPC in 1993. They were discovered when the hospital staff went in to access their facilities after ECOMOG was deployed in 1996.

Massacre in Vahun,Lofa County in 1993 reported by the Media: Six Senegalese ECOMOG soldiers were murdered by Oliver Varnie, Timothy Mulbah and Joe Doe in Vahun on orders of Charles Taylor and his then defense Minister J. Thomas Wuworyu following ECOMOG’s deployment in his controlled areas. Their bodies were dumped in a valley in Vahun and NPFL authorities refused to turn the bodies over to the ECOMOG High Command. It was based on persistent international pressure that the bodies of the six Senegalese were turned over to the ECOMOG High Command. Their bodies were flown toSenegal for proper burial.

Massacre inNeeswen Town, Rivercess County on January 15, 1994 reported by the Daily News Newspaper Vol. 3 # 24: The NPFL fighters killed 32 persons after they were accused of being supporters of the LPC. The fighters were said to have entered the town at about 3:00am and began slaughtering occupants of houses marked by the LPC.

Massacre in Kpakolokuya Town, Bong County in February 1994: Siafa Normah ordered the execution of 15 men inKpakolokuya Town,Bong County during his term as army chief of staff of the NPFL. Abel Normah and Wogbagii implemented the order.

Massacre in Gbarnga,Bong County in May 1994: Andrew Koah, Alosius Sackie, Gaye Getteh, Saturday Tuah, J.J. Doeh, and Marcus Seebo tied 19 men in a Tarpolin and hung them over a pile of fire until they died. The culprits acted on the orders f Cassius Jacobs.

Summary Execution in Zorzor,Lofa County in 1994: General Apolo J. Swen, front line commander for ULIMO, murdered 69 POWs of NPFL in Lofa.

Massacre in Moulton Corner, Brewersville, Montserrado County on June 19, 1994 as reported by Charles Bryant, Benjamin Brown, Marilyn Wright/ the Inquirer Newspaper June 23, 1994 Vol. 4 # 111: Nine persons, including an entire family, were slaughtered in the areas that was controlled by Mandingo fighters who recaptured the area from the Krahn fighters.

Massacre in Kpoloppai,Bong County in September 1994 as reported by JPC Gbarnga Coordinator: LPC massacred about 300 persons “allegedly” when they fled the fighting in Gbarnga between ULIMO – K and NPFL.

Massacre at Phebe,Bong County in September 1994 as reported by residents of the area: LPC allegedly massacred over 100 persons who were hospitalized and or seeking shelter at thePhebe Hospital after fleeing fighting between ULIMO –K and NPFL.

Massacre in Duoh,Nimba County in October 1994: Chinese Japper, a then commander under Coo coo Dennis, murdered 86 persons in Duoh, while retreating from Bassa with about 1700 fighters escaping from LPC.

Murder in Beilah, Bong county in October 1994: On the orders of Saturday Tuah of the NPFL, Junior Vaye dumped the wife and children of James Glasco in theSt. John River in Beilah during the fall of Gbarnga to ULIMO.

Massacre inNimba County in November 1994: A group of NPFL soldiers led by Dominic Sayeh and Bleh Vah killed 176 persons at the Sendin Crossing Point inNimba County. The victims were of the Bassa ethnic group.

Massacre inGanta Nimba County on November 11, 1994: General Liberty killed 21 unarmed boys in Ganta during the fall of Gbarnga. He accused them of being disguised ULIMO fighters.

Massacre in Cow Field, Duport Road, Montserrado County on December 15, 1944 reported by the News Newspaper on December 19, 1994 Vol. 5 # 151: About 48 persons (civilians were massacred by Paul Vaye, Sam Lartee and other soldiers of NPFL, while they were asleep at their home. Cow Field,Duport Road in the Paynesville area. The bodies were buried in a mass grave in the Palm Grove Cemetery onCenter Street.

Murder in Grand Kru County in January 1995 as reported by Isaiah Momboe Sackor, Niffu Borta Community Development Association/ The Inquirer Newspaper, January 3, 1995 Vol. 4 # 241: The Liberian Peace Council fighters killed 18 citizens.

Massacre in Tappita,Nimba County on September 27, 1995 reported by JPC: Gen. Jack the Rebel acting upon the orders of Charles G. Taylor killed 105 persons in Tappita. These people were killed because they refused to give up their only sawmill in their town.

Massacre in Bokomu District,Fassama Town, Lofa County in March 1996 as reported by an escapee/Monrovia Daily News Vol. 3 # 61: Several person lost their lives in six villages and towns by fighters of ULIMO. The commanders Maj. A.C. Dorley held separate meetings in the area at which time he accused the villages of being informants for the Lofa Defense Force (LDF) and retreating remnants of NPFL.

Massacre in Zuanna Town/Bloun Town, Roycesville,Bomi County on April 18, 1996 as reported by several residents including the block leader/The News Newspaper, December 11, 1996 Vol. # 47: Twelve persons were killed when a group of fighters stormed the area and burned down the displaced camp andKarmo Town.

Mass Grave found at Barclay Training Center (BTC) Beach, Central Monrovia, Montserrado County in August 1996 as reported by Chief Pathologist, Dr. Isaac Moss/ The National Chronicle, August 29-30, 1996 Vol. 1 #31: A team of medical doctors and health practitioners involved in the exhuming and reburying of dead bodies revealed that over 500 bodies were exhumed at the BTC beach and reburied at theCenter Street Cemetery. Some of the people died from bullets or blunt objects while some were beheaded.

Mass Grave at Matadi Estate, Airfield and Sinkor in August 1996 as reported by Chief Pathologist, Dr. Isaac Moss/ The National Chronicle, August 29-30, 1996 Vol. 1 #31: Mass grave were discovered in these areas by a team of medical doctors.

Massacre in Sinje,Grand Cape Mount County on September 28, 1996 as reported by UN Relief workers/ The Inquirer Vol. 5 # 75; Daily News Vol. 5 #62; and The News Vol. 7 # 17: According to a UN press release issued by the Special Representative of the Secretary General Amb. Anthony B. Nyakyi, about 17 civilians were killed and many were injured while about 1000 civilians escaped the bloodbath. But other reports put the number at 25 to 48.

More Killing in Robertsport, Grand Cape Mount County in September 1996 as reported by fleeing residents/The Inquirer Newspaper October 4, 1996 Vol. 5 # 75: Unidentified fighters reportedly killed nine prominent citizens of Robertsport. The fighters claimed that their victims gave money to another armed group to attack their positions.

Gruesome Killings in seyon Town Bushrod Island in October 1996 as reported by residents of Seyon Town/The News Newspaper October 18, 1996 Vol. 7 # 24: Three ex-combatants who had lured the market women from the Freeport of Monrovia where they had gone to buy rice and bulgur wheat slaughtered the two women; Doris Dekeh and Louis (surname not known). The three after they had killed the women, sprinkled kerosene on their remains, covered them with tires and set them ablaze. LD $2500 was taken from them.

Massacre in Zuanna Town Bloun, Royesville, Bomi County on December 7, 1996 as reported by the News Newspaper December 11, 1996 Vol. 7 # 47: Eight persons were killed. ULIMO-J is accused of committing the act.

Murder in Gbarnga, Bong County on November 28, 1997 as reported by JPC investigation/The News Newspaper, December 8-9, 1997, Vol. 8 # 103: An opposition politician and former Deputy Speaker of the TLA, Samuel Saye Doke, his wife Janet, his sister Serena and nephew Emmanuel Voker were arrested at a security checkpoint in Gbarnga while in route to Sanniquellie, Nimba County to attend a welding. It was alleged that the SSS Director, Benjamin Yeaten ordered their arrest. Following their arrest, Mr. Dokie was brought to Monrovia for investigation and subsequently take back to Gbarnga. Three days later, the burnt bodies of the Dokies, the government said it never ordered the arrest of Mr. Dokie. The SSS Director, Benjamin Yeaten, however, admitted ordering Mr. Dokie’s arrest, but not his murder. Yeaten was temporarily relived of his post to assist in the investigation. The court for lack of evidence acquitted two security personnel Richard Saydee and Kennday Fineboy, who had been named as prime suspects. Their bodies are said to be buried around a place called Barbecue Corner on the Gbarnga-Kokoy Road.

Murder at Freeport, Bushrod Island, Monrovia on December 16,1997 as reported by eyewitnesses: Daniel Nyankan, a businessman was found dead around the Freeport of Monrovia with bruises all over his body. His death sparked off controversy, with the police authorities accusing ECOMOG soldiers of killing Nyankan. Family sources, however, quoted eyewitnesses as saying that state security forces killed Nyankan after he had been severely flogged.

Mass Grave in Zorzor, Lofa County in April 1998 as reported by Zorzor citizen youth leader George/ The Heritage, April 28-30, 1998 Vol. 2 #53: NPFL fighters killed several people including pregnant women. The youth leader (George) claimed that the victims’ hands and legs were tied before they were buried alive in shallow, thin graves of about three to four feet deep.

Murder in Paynesville, Montserrado County on June 28, 1998: Nowai Flomo, a market woman, disappeared from her residence in Kpelle Town, Paynesville. She was allegedly abducted from her house at about 11:00am by nine officers of the SSS, led by one David Daniel, who had gone to visit Ms. Gormie Jartu, a housemate of Ms. Flomo. The SSS officers allegedly murdered her after an exchange of words over the manner in which the security personnel drove in the yard. Her corpse has not been found. The police later released all those arrested in connection with the disappearance for what the police termed “lack of evidence”.

Massacre on Camp Johnson Road, Monrovia on September 18, 1998 as reported by resident in the Camp Johnson Road Area: State Security forces attacked Gen. Roosevelt Johnson, a former warring faction leader, on Camp Johnson Road. The government within 24 hours gave three different reasons for the invasion, which eyewitness accounts say, claimed the lives of over 100 persons. The government put the casualty figures at 53. The government first said that its security forces went to evict illegal occupants in private houses when they came under attack. Then, State Security Officials alleged that they were on patrol in the Camp Johnson Road area when they came under attack from supporters of Gen. Johnson. Finally, the Government claimed that the incident was a ruse buy Gen. Johnson and his supporters in their bid to violently overthrow it.

Massacre at the Episcopal Church, Camp Johnson Road, Monrovia on September 19, 1998 reported by National Human Rights Commission’s Report published October 13, 1998: On September 18 th, President Taylor ordered the eviction of Mr. Roosevelt Johnson from his residence. Several persons of the Krahn ethnic tribe ran into the Episcopal Church. SSU allegedly executed about 1500 persons, mostly young men at dawn of September 19, 1998. Col. Junior Fania, Leo Jebo, Saa Gbollie, Joe Tuah, General Eric Sway, and Arthur saah, Benedict Mentee, spearheaded this operation.

Massacre on Schiefflin Highway on September 19, 1998: Mark Guahn murdered 13 persons of the Krahn ethnic group on Schiefflin Highway. They were arrested in Monrovia on charges of being supporters of Gen. Roosevelt Johnson.

Massacre in Nekebozu, Lofa County on August 10, 1999 as reported by UL student hailing from Quardu-Gboni Mandingo Chiefdom/ the New Democrat Newspaper: Militia men in Nekabozu killed about 25 members of Quardu-Gboni citizens

Massacre in Nikagabozu, Lofa County on September 2, 1999 as reported by UL student hailing from Quardu-Gboni Mandingo Chiefdom/ the New democrat Newspaper, Vol. 4 # 104/ The Inquirer Newspaper Vol. 8 # 156: Members of the AFL allegedly massacred about 100 persons in Nikagabozu. This was believed to be a reprisal of a recent massacre of elders and Chiefs of Liewalzo by dissident forces (LURD), when they entered Liberia on August 11, 1999. The students blamed the massacre squarely at the feet of Defense Minister, Daniel Chea as a result of an interview he granted the BBC Journalist Robin White.

Murder at ELWA junction, Paynesville on September 28, 1999 Eyewitness accounts: Henrique Cassell, Deputy Commissioner of Immigration and brother-in-law of President Taylor shot and killed Papa George, a taxi driver, at the Golf Filling station at the ELWA junction in Paynesville. Cassell accused Papa George of overtaking his car. The defenseless taxi driver went on his knees and pleaded for mercy but to no avail. Cassell then pulled out his pistol and fired at George while he was begging for mercy. Cassell was charged with murder, found guilty and sentence to imprisonment. President Taylor granted him general amnesty last year.

Massacre in Swen, Bomi County on October 10, 1999: Siafa Norman massacred about 20 civilians who were accused of being LURD supporters in Swen Mechan District, Bomi County.

Massacre in Bawon Town, Zorzor District, Lofa County in January 2000 as reported by UL students from Quardu-Gboni Mandingo Chiefdom/New Democrat Newspaper, February 4-7, 2000 Vol. 6 #145: Armed militiamen massacred 18 persons of the Mandingo ethnic group in Lofa County. Government announced an investigation into the extra-judicial killings, but nothing was heard beyond the announcement.

Massacre in Gbar, Bong County in January 2000: Melvin Sobani ordered the execution of 26 unarmed civilians in Gbar, Bomi County. They were accused of being supporters of LURD.

Summary Execution in gbatala Base, Bong County in 2000: Chucky Taylor murdered more than 100 persons at the Gbatala ATU Training Base. Some of the victims were trainees charged with failure to follow instruction (FFI)

Summary Execution in Voinjama, Lofa County in May 2000: Mr. Joe Gbala ordered the execution of 42 captives in Voinjama. They were considered GOL soldiers who had surrender in a battle between John Town and Zorzor. Others were brought from Foyah.

Summary Execution in Kornia, Lofa County in March 2001: Momo Jibba ordered the execution of 14 persons in Kornia, Lofa County when GOL recaptured the town from LURD. He also planned and executed the death of François Massaquoi, the then Youth and Sports Minister.

Massacre in Saclepea, Nimba County in May 2001: Daniel Gweh, Tony Gonyor, etc. murdered 7 Mandingos and burnt down their houses.

Massacre in Bopolu, Gbarpolu County on June 9, 2002: Ofourie Jay alias “Iron Jacket” massacred 110 young men and women in Bopolu, Gbarpolu county. They were accused of being sympathizers of Government of Liberia.

Massacre in Marhair River Bridge, Tubmanburg, Bomi County on July 20, 2002 as reported by two of the survivors: About 175 persons were massacred allegedly on the orders of Gen. Benjamin Yeaten. They claimed that the people were sympathizers of LURD.

Summary Execution in Congo Town Monrovia on September 18, 2002: Isaac Gono of the ATU, Chief Driver of Charles Taylor, Jr. “Chucky”, was beaten to death on the morning of September 18, 2002 for allegedly hitting a dog with Chucky’s car.

Incursion into Ivory Coast on October 21, 2002: Charles Taylor mandated Benjamin Yeaten Joe Tuah, Liaison officer, Edward T. Zamay, Training Officer, Walloe, death squad commander, Osebo Demain, logistics officer, and Matthew Karn, artillery commander to cross into Ivory Coast to assist felix Doe, leader of the Western Rebel, as mercenaries

Massacre in Toe’s Town, Grand Gedeh County on February 28, 2003 as reported by JPC Monitor/The Inquirer Newspaper, March 17, 2003 Vol. 13 #39/ The News Newspaper, March 17, 2003 Vol. 14 #222: General Gbor Vaye of the GOL slaughtered three employees of the Adventist Development Relief Agency (ADRA) namely: Kara Lund, a Norwegian, Arty. Emmanuel Sharply, a Liberian and Country Director, and driver Muse Keita, another Liberian were massacred while in route to Maryland County to pay their employees. The perpetrators were never brought to justice.

Murder in Paynesville, Montserrado County on June 4, 2003 as reported by the deceased wives and relatives: The Deputy Ministers for National Security and Public Works, John Yormie and Isaac Vaye were arrested on the night of June 4, 2003 by a group of armed men under the command of one “Bababa” of the SSS which it was alleged he was acting on the orders of Gen. Benjamin Yeaten. They were allegedly brought to Monrovia, interrogated and later driven back on the Gbarnga-Ganta highway (CNC Logging Company area) and later killed. Their bodies were allegedly dropped on the train track by a container in the Ganta area. Their wives are demanding their bodies to give them a befitting burial.

Massacre in Gbarn, Nimba County on May 26, 2003: Adolphus Sampson, special bodyguard to Gen. Benjamin Yeaten murdered a family of five at the railroad bridge near Gbarn, Nimba County upon seeing then with $75,000LD, and two pieces of diamonds.

Massacre in Nimba County on May 6, 2003: Adolphus Sampson, Gola Red, Alphonso, Nyanay, Marcus and High-grade on the orders of Gen. Yeaten massacred Samuel Bokarie, his wife, mother and two children in Nimba County. Francis Menwon and Peter Sakpeideh witnessed it.

Summary Execution at Lofa Bridge on May 2003: General Sekou Kromah and his men murdered 24 persons on Lofa Bridge. The victims were arrested in the Tubmanburg area and charged with reconnoitering.

Summary Execution in Monrovia on June 9, 2003: Charles Taylor, Jr. “Chucky” murdered 18 persons at the Stockton Creek Bridge. Gen. Roland Duo men arrested these people as POW of LURD.

Summary execution in Monrovia in June-July 2003: Lomax, artillery crew commander of Wild Geese, Marcus High Grade, bodyguard to Yeaten and Nyan murdered 42 persons on the Johnson Street Bridge for looting. The victims were accused but never tried.

Massacre in Combat Camp in July 2003: Marcus High Grade and Gola-Red acting on instruction of Gen. Yeaten transported 78 wounded soldiers from Monrovia to Combat Camp, under pretense of going to pay them and killed them. The victims were demanding to be paid by Charles Taylor.

Summary Execution in Klay, Bomi County in July 2003: General Abbas of LURD murdered 26 persons in Klay. The victims were arrested on Bushrod Island as POW of GOL.

Massacre at Tubman Farm, Bong County on September 8-20, 2003: Zeezah Mazah, special bodyguard to Benjamin Yeaten fed Mr. Charles Taylor’s lions with 26 living persons on his farm in Maleki, Bong County. This was a prescribed punishment for those who committed crimes.

Summary Execution Po-River, Bomi County on October 11-26, 2003: General Wasue Donzo of the LURD ordered the execution of over 26 persons on the Po-River Bridge, Tubmanburg Highway and dumped some of their bodies in the Po-River.

[This list is compiled by Nepalese lawyer, Dr Bipin Adhikari, based on Internet resources in 2004. The stories need to be independently verified in their details including actual dates.]

There cannot be any legal concept as the ‘supremacy’ or ‘sovereignty’ of the House of Representatives in Nepal, argues BIPIN ADHIKARI, if anything is supreme in a system of the rule of law that this country has, it is the Constitution, the main governing law of the land.

The newly formed government of the Seven Party Alliance (SPA) is making historic decisions, one after another. But many of such decisions appear rundown in terms of legality. 

Several crucial decisions are being made everyday since the restored House of Representatives started to function on April 29. The government has dissolved the municipal bodies constituted after the February 2006 polls, decided to rescind all legislation, decrees, appointments and other moves made by the king-led government, declared ceasefire, dropped the terrorism-related charges against the Maoists, and asked Interpol to quash international arrest warrants for their leaders. It has also ordered a judicial inquiry on the abuse of power by the security forces during the mass movement last month. Additionally, the CPN (Maoist) has also been called to come forward to discuss with the government on how to get ahead with the contentious issues. The May 19 Proclamation of the House is the most critical of all.

While a generalized frugality has undoubtedly prevailed in making all these decisions, the idea of proclamation of the HoR having effect of law overriding the Constitution is as much an anarchic notion of legality as the use of Public Security Act to arrest and try public servants who resisted the demand for the restoration of the House and formation of a democratic government. 

Thus, the SPA government has shown some extreme examples of the abuse of legal process and stunning political arrogance that make the status of the rule of law in the country wobbly. 

The idea of legality involves the requirement that all authority be constituted, and all power be exercised, lawfully. In a democratic society, the power of the HoR is limited mainly to law-making and policy issues as they fall under the given constitution. This principle is not only reduced in practical content, but it is also at risk of being subverted, if it is not sustained in that spirit. There are times, and circumstances, which place a society’s commitment to legality under particular stress. But that cannot be an excuse all the time. The government and the House themselves must value legality. After all, it is the ultimate foundation of their authority and stability. In its absence, no courts can function independently, or exercise their capacity to declare and enforce limits on governmental and legislative authority. 

The popular opinion in Kathmandu, often supported by the mainstream media, is that since the reinstatement of the House is politically enforced, it is not necessary for the newly constituted government and the HoR to conform to the existing constitutional process in their plan, programs and decision-making. Even some established lawyers, who took part in the mass movement, are saying that the movement backs up the SPA government, and the legal and constitutional underpinnings do not matter much in the process. It is on the ground of revolutionary legality, for example, that the splinter Nepali Congress (Democratic) was given a party status in the House of Representatives, disregarding the law, which states otherwise. It is yet another common hazard which remains unbound by any predictable principles and rules. 

There cannot be any legal concept as the ‘supremacy’ or ‘sovereignty’ of the House of Representatives in Nepal. If anything is supreme in a system of the rule of law that this country has, it is the Constitution, the main governing law of the country. People definitely are supreme or sovereign, but this does not mean the supremacy or sovereignty of the politicians, or their executive or technical hands. The requirement of complying with the rule of law is as much necessary in the transitional business of the government as the need to make sure that the state functionaries, including the HoR, act according to the concept of legality, and refrain from minimizing the existing constitutional standards, if not more. The sanctity of the rule of law must be preserved in the transitional process until a new rule of law is established and until there is a dependable exit to the political controversies and a better constitutional regime. 

The House proclamation, the way it has broken into the scene, cannot be anything more than a political resolution of the representatives of the people, which needs to be materialized through the constitutional amendment process, making it an enforceable document. This is necessary for the sanctity of the document itself, and also to protect the system from degenerating into arbitrariness and even anarchy. The contents of the proclamation, such as placing the army under parliament’s control, abolition of the king’s key advisory body, the Raj Parishad, from the Constitution; bringing the king’s income and property under the tax net of the government; and making the King amenable to the jurisdiction of the administration of justice; etc are not politically questionable proposals in themselves. But they require going through the constitutional amendment process, which guarantees a minimum level of discussion, and the standard procedures which must be complied with, before they establish their credential as the rule of the Constitution. Unless the right spirit, the right attitude and right disposition is there, this proclamation, with such a significant constitutional importance, is not worth the paper it is proclaimed on. 

There are many more crucial changes in the pipeline. They may take an unusually long period to get fully accomplished. Those who look only to the past or present in the process of change are certain to miss the future – which is yet to unfold, and also depend on many political variables. It is for this reason that the sanctity of the constitutional process must be maintained. The Constitution can always be amended, if it does not give political outlet (as it appears to be the present case). If the HoR goes on assuming overriding powers over the Constitution, deliberately sidelining democratic institutions and procedures, it is clearly an evidence of the fact that the movement is declining in terms of its commitment to the democratic process. Again, the Proclamation is not coming out all of a sudden as in the case of magna carta (which the King of England signed in 1215). The Proclamation has come in the background of a written constitution. If the Maoists demonstrating on the streets of Katmandu are seen as the basis for continued legality of the proclamation, sooner or later, this sort of civil liberties fetishism will only push the country into a deeper crisis than ever before. 

The SPA demanded the reinstatement of the HoR, dissolved four years ago, because they thought a legitimate forum, based on certain constitutional parameters, could be immediately available to discuss the prime agendas of the nation. But this objective seems to be dwindling, and the activities of the government are being carried out with least regards to the rule of law traditions. The first and foremost need at present is to legitimize the House, reinstated by the king, by amending the Constitution, and giving it powers, responsibilities and life, and a clear constitutional status befitting the transitional process (in all areas where it cannot give outlet to the current political agenda). 

This obviously necessitates the reinstatement of the National Assembly and implementation of the rules regarding parliamentary decision-making. Such an amendment must also provide for interim arrangement as agreed with the Maoists. Until the constituent assembly completes its job, the role of the House in maintaining continued legality, performing essential legislative functions, and forming an interim government will remain crucial. This arrangement can also keep the Supreme Court functionally alive to check when the government is acting ultra vires the Constitution. 

It was easy for King Gyanendra to transfer the power that he had been exercising illegitimately for quite some time—he only had to transfer it to democratic forces, which were there. He could afford the luxury of failing for a while. Many Latin American and African nations have undergone dictatorships, usually by military leaders, either as the head of a junta or as unelected president by ‘pronunciemento’, but there are rarely history of these people coming into terms with the alternative forces that were available. It has happened in Nepal, because the monarchy had that tradition of sooner or later conceding to the popular forces, no matter how ambitious the monarchs had been at times. Unfortunately, the SPA government does not have that choice. Increasingly, the public appears against executive monarchy, and the alternative power base that the SPA government has is not only authoritarian, but also undependable, wild and bereft of any democratic commitment. As such, the government must succeed, without developing any intoxication for illegitimate power. 

If the government fails, it will finish itself, the monarch and the national army as well as the prospect of democracy for a very long time. While the rule of law must always be maintained to keep the momentum against anarchic forces; the government should stop humiliating the national army, which remains the strongest bullwork protecting democrats in the country. In fact when kings, autocrats, or despots are deposed and the people rejoice, it has not always meant democracy is assured. In modern history, people’s revolutions have produced tyrannies far more monstrous than the ones they have pulled down. The American Revolution produced a constitutional republic in 1789. Yet, that same year, a French Revolution hailed by Jefferson, ended in a reign of terror, followed by Napoleon’s dictatorship, and decades of European wars. There is also an unbroken history of despotism and domination— by Ottoman Turks, then by Western imperial powers. 

It is time to remember that Benito Mussolini in Italy and Adolf Hitler in Germany gained power within the framework of democratic politics, and once in power, they gradually eroded constitutional restraints. Mussolini came to power after the “March on Rome” in 1922, and was appointed Prime Minister by King Victor Emmanuel. In Germany, the detested Kaiser Wilhelm had abdicated in 1918. Democracy had a good beginning, but just fifteen years later, Adolf Hitler took over with the intention of never giving up power. In the recent past, the dethroning of many pro-Western monarchs in the Middle East produced despots such as Nasser, Ghadafi, Saddam, and the Ayatollah Khomeini. It is for the democrats to make sure that democratic methods are sustained, whether in war or in peace. 

The most important among the contentious issues is the formation of a constituent assembly to draft a new constitution as called by the Maoists. From the 1789 French Constituent Assembly to 1992 Democratic Constitutional Congress of Peru’s Alberto Fujimori, the world has seen dozens of constituent assemblies. However, it is hard to find a perfect example of a constituent assembly, or a perfect written constitution ever produced by a constituent assembly. 

South Africa’s Constitution of 1996 is considered comparatively better. It is because of the result of remarkably detailed and inclusive negotiations done by its constituent assembly- with the support of a charismatic Nelson Mandela. In all, it took seven years, from 1989 to 1996, to complete the final document. Almost five years elapsed between the first meeting between African National Congress and Prime Minister P W Botha in 1989 and the agreement on an interim constitution and the first non-racial elections in 1994. Through these years, outbreaks of violence threatened the process. But the leadership of Mandela and his pragmatic approach (of working with the same apartheid regime that his movement pulled down) helped the process considerably. The ‘historical’ enemies in South Africa succeeded in negotiating a peaceful transition from apartheid to democracy exactly because they were prepared to accept the inherent capacity for goodness in the other. Mandela wanted South Africans never to give up on the belief in goodness, and to continue to cherish that faith in human beings as a cornerstone of their democracy. He was largely successful. 

This is not always possible, especially when there is a communist or a totalitarian movement. It would be a folly to ever ignore the fact that the Maoist movement was launched to destroy the parliamentary system and eliminate bourgeois forces including the monarch. It was launched at that point of time when the King had a demonstrably good performance as a constitutional monarch, and the elected governments had started to deliver (although they too were learning by doing). The role of the political parties in the handling of this movement has always been questionable. They have been mean; power-hungry, corrupt and unpredictable. Except the King of Nepal, it is hard to get any party or politician in this country who had a policy about Maoists, and had ever condemned violence the way it deserved. Even now they are basically capitalizing on the hatred against the king, and the revolutionary fervor being exchanged with the Maoists is demobilizing many important values that the country needs to protect for its reformative moves. The SPA alliance has already shown that old habits die hard. 

Part of Russia’s history is repeating in Nepal today. Throughout the 19th century, Russian reformers demanded the setting up of a democratically elected Constituent Assembly. After King (Czar) Nicholas II abdicated on 1st March, 1917, the new provisional government announced it would introduce a Constituent Assembly. A total of 703 candidates were elected to the Constituent Assembly in November, 1917. This included socialist revolutionaries, Bolsheviks, Mensheviks, and Constitutional Democratic Party. The position of the Bolshevik was not better. They were bitterly disappointed with the result as they had hoped it would legitimize what they proclaimed as the October Revolution. 

Thus, when the constituent assembly rejected Vladimir Lenin’s Bolshevik programs, he announced its dissolution asserting that the October revolution stood higher than the formal rights of the constituent assembly, and its attempt to disregard the class struggle and civil war would be a betrayal of the proletariat’s cause, and the adoption of the bourgeois standpoint. Soon, afterwards, all opposition political groups were banned in Russia, and the state power was captured by Bolsheviks, with the support of the arms and ammunitions of the Czars. The October revolution was not the revolution of the Russian masses; it was the forceful takeover of the interim regime by the Bolsheviks. 

Nepal is at present at that stage. What is going on, by itself, is not unfortunate. What is unfortunate is the failure to understand the scenario. The question, of course, is not simply the constituent assembly and the constitutional framework that will be ultimately adopted, but whether or not that framework is a viable instrument from which the country can emerge and persist as an independent, nationalist and democratic society. 

A strong commitment to the rule of law is necessary to overcome this challenge. Democracy also needs to find ways of growing and building advantages rather than just eliminating disadvantages. It is not just a matter of being better at what the SPA government does – it’s a matter of being different at what they do. The problem with SPA is that it is full of doubt, while those who have just returned from the jungles are always so certain of themselves. 

Bipin Adhikari, Ph.D., is a lawyer. He specializes in constitutional law, human rights, legal reforms and democratization process. He can be reached at lawyers_inc_nepal@yahoo.co.uk.

The Constitution of the Kingdom of Nepal, 1990, has now completed its 15th year. The last three years of its life have been very dreadful. It is being victimised by its own associates and well-wishers. The worst – it continues to face the visible retreat of ideology from public life and the corresponding transparency of the quest for power as an end in itself. The malaise is serious enough to merit consideration beyond the ambit of partisan politics. 

The context here is not only the Constitution, but also a strange violent-conflict afoot in Nepal, which has neither ceased to be serious to the parties concerned because more than 12,000 people have already died due to this, nor has ceased to be funny because it is doing exactly the opposite of what it intended to do. 



Reviving the Constitution 

The Communist Party of Nepal (Maoist), which demands formation of an interim government, elections for a constituent assembly, and drafting of a new constitution, and the illegitimate government, which has been an all-time liability to the nation, both want to write off the 1990 Constitution for no fault of its own. Prachanda, the Maoists’ chief, declared his intention long back, and Tulsi Giri, who is counted as the number two in the royal cabinet, briefed the people about it only after the eighth month of the seizure of the state power by the king. A somewhat anarchic vision of building everything anew pervades the dream of both these groups. The result is the most sordid display of opportunism and venality in their slogans, basically manufactured for public consumption. Hypocrisy is on the rise, but guilt has never been allayed. 



What is so bad in the Constitution for both these parties to the ongoing conflict is nevertheless clear. They do not want any restraint on their power. The hurdle for both these parties is the 1990 Constitution, which for the first time in Nepal’s written history declared that the people of this country are sovereign, assured that fundamental human rights are guaranteed to all, created an independent judiciary, and enforced a parliamentary system of government based on adult franchise. It is this Constitution, which guaranteed the people of Nepal the most cherished values of modern societies: freedom of speech, representative form of the government, and liberal institutions of governance. It is this Constitution, which gave the people of Nepal an opportunity to assert their independence through their representative institutions, and enabled them to become far more international in their outlook and aspirations, more sophisticated and liberal in their economy, lifestyle and attitudes, and certainly more demanding in terms of their desire for self-governance. 



The first group took arms against the Constitution lacking the numerical strength to win the parliamentary elections to achieve a totalitarian communist system from the position of power. And the second entered into the scenario because the first group was able to give it an opportunity to assume unbridled power as a response to the bloody insurgency. Additionally, it was also not possible for it to remain untouched when the chassis of the nation including the monarchy itself was being attacked by forces having no public approbation. For both of them, the only way out was to dispense with the present Constitution, which came on the way of their ambitions and counter-ambitions. Both of them are still struggling to frame their assault on the Constitution in a way that will evince patience. The explanation sounds surreal because truth is stranger than fiction. 



Surprisingly, most of the mainstream political forces, which were crucial for the enactment and promulgation of the present Constitution in 1990, too, have lost their fantasy with it. The people of Nepal, who have lost their voting rights since the last three years, still want to know why the Constitution is being victimized, and why they are bickering around as the birds of passage, bereft of any principle and commitment. They never explained why the innocence of this Constitution is in doubt, and why it cannot be reformed the way most of the living constitutions of the world were reformed and modernized to suit the changing requirements of the time. Unfortunately, by opting for election for a constituent assembly, and drafting of a new Constitution, this lot, particularly the Nepali Congress (NC) and the UML, not only surrendered their commitment to a living Constitution, but also betrayed the legitimate constitutional process of change. Going beyond the anger and ironies, wrapping them around twenty-four hours, have they ever thought why they could not ever work out a working arrangement with the King? The loyal opposition has become frantically disloyal, and have instead chosen to lend hands to the Maoists in order to speed up an openly anti-democratic insurrection. It is difficult to overstate how radical this view is, and how out of line it is with the sustainable process of change. 



Democratic Reconciliation 

Moral losses that we see in our parties are like radiation – colorless, odorless and terrifying. After every move, they need to go across the international border, get the feed back and reinvigorate their commitment in the war against the Constitution. This Constitution sustains the King, and the King sustains Nepal’s political independence. So democracy is not an issue; the issue which must be confronted is monarchy, and the Constitution which sustains it. The demand for a constituent assembly, which comes out of sudden in this perspective does not seem to be homegrown. The free and independent media is indeed able to make illusions appear real, especially for those who are already out of touch with reality. They are talking about solution without knowing the nature of the problem. 



The Nepali Congress, in particular, has become a funny case in point. This oldest democratic party of Nepal did not hesitate to give a deadly blow to its long established policy of national reconciliation in order to defeat what B P Koirala described as threats to the independence of the nation and its political sovereignty. The NC ignored that the challenge before the democrats is not only to take the responsibility of restoring democracy but also safeguarding the nation, which is being pushed to a bargaining table to negotiate its nationhood. While the democrats in the Congress, and those in the seven party alliances, do not care that there are other dangers to democracy more than monarchy, the king has also belittled the reality that there are dangers to monarchy more serious than parliamentary democracy, the political parties and the Maoists. No efforts were made to reform their weaknesses to reconcile with the King, and work out a moderate strategy that should have enabled the Maoists to join the mainstream minimizing their disastrous potential to a great extent. 



The dilemma of the isolated king, who wields power to an unhealthy extent cornering the legitimate political forces, is self-evident. He is in office but not in power. The power is being exercised by some unscrupulous people, who hardly understand the complication that the King has created for himself, and for the nation. He probably knows where the fault-lines are, but his authoritarian patterns come on his way. Knowing how to swing a golf club is one thing, but doing it correctly every time is another. The risk factor is crucial because the king who was crowned just a few years ago had no opportunity to grow with representative institutions. His first mistake was the event of October 4, 2002 that symbolized his impatience with democratic process. The second mistake was the occurrence of February 1, 2005, a serious distrust for the representative political system, which helped tarnish his democratic image seriously. 



The country remains unattended in this critical juncture of its life. The involvement of a foreign country in the seven party movements has already contaminated the atmosphere. Moreover, these movements, especially their recent moorings about jointly working with the Maoists, is an intellectual tragedy– a tragedy of idealism, ignorance and mimicry. A communist movement resulting in a democracy (or “full democracy” as they describe it) is a self-deception as old as the Bolshevik revolution. The comment is not on the democratic programs of the Maoists per se, but on the fringe outcomes, which are inevitable in their process. In fact, a king who does not hesitate to point out about the use of massive foreign money to achieve unwanted activities in the capital needs to know precisely how to counter the whole situation. The existence of the foreign element is not unique to Nepal. What is unique in recent years, however, is its size and aggressive techniques. The King needs the strength of the whole country, of the institution of democracy and of ordinary people, in building the nation. An isolated king is not only a risk to the independence of the country but also its sovereign capacity. 



The silent majority of Nepal still believes in the value system of the past – to stand by the King when the chips are down. This is what the first elected Prime Minister, B. P. Koirala, did. However, much to the bewilderment of all, in this critical period, how can the common people believe that the country and its Constitution are safe in the hands of the king, whose half of the ministers are of dubious character? His recent moves including the imposition of the censorship law are not just error of judgment, but monumental blunders of an able man. Is it not enough to know that while the King still talks about democracy his ministers talk about scrapping the Constitution, and devising a new model of democracy that suits the genius of Nepali people? Why is this Constitution being victimised if democracy is the mission of this country? Funny or serious, if all political institutions in the country are overwhelmingly penetrated and moved by forces antithetical to human rights, democratic Nepal and its sovereign interests, is the ongoing conflict really a manifestation of an impulse towards political reform, or is it something else? 



Logic of Elections 

There is no reason why election should be boycotted. It is always a democratic institution. Even if an election is being held by an illegitimate government, it is wise for those who consider themselves as legitimate representatives of the people to participate in it. There are very good reasons why the need for holding elections must be insisted by all as the doorsill requirement to deal with the problems caused by the ongoing conflict. The first thing these elections will do is the reinstallation of representative institutions and give a fresh mandate to those who can represent the common people to resolve the Maoist conflict. With the election for the House of Representatives, the Constitution will revive itself with full force, and the jurisprudence of power and restraints, and the rules of checks and balances will quickly start circumscribing Article 127 and its misuse by the King. The parliamentary and deliberative processes inherent in the Constitution will then create fresh impetus in all components of the power grid to move forward with national determination. This is the only way the King can be stripped off his newly acquired powers, and the democratic process and the political parties can again be empowered and pressed hard to create options for the Communist Party of Nepal (Maoist). 



While elections are a must, they can furnish the desired result only if all political parties and the Maoists participate, and the preconditions for ensuring the sanctity of the electoral process are fully met. In particular, the participation of Maoists in the elections can also serve as a proof of the fact that they are democratizing, and trying to renounce violence as a means to achieve political ends. Their participation in elections does not mean giving up their political demands. They can work out a common strategy with the parties in advance, and express commitment to the electoral politics as the process of change. 



Even if they decide not to participate for strategic reasons, they can still help these elections as they will be creating their legitimate counterpart in the peace process. It must have been clear to the Maoists by now that their historic demand of talking with the King straight (after destroying the political process and parliamentary institutions) has been the most unfortunate one for all. They not only helped pull down a democratic Constitution, but also the political parties, who still represent a majority of the Nepali people. 



Elections can also bring a period of enthusiasm and euphoria, of resurrection of democratic commitment and can open the options for the common people in the street. Many among the common people are unlikely to be much impressed by the cease-fire and political rhetoric, much less by the kind of antics resorted to by the Maoists in the past. If democracy, as the Maoists also claim, is the solution to the political problems that Nepal is facing, and if this is what their mission is, then it needs to be explained why they have been arguing about using democracy as the stepping stone to achieve a communist republic. This is the stumbling block, which comes on the way of peace negotiation between parliamentary political parties and the Maoists, and shows the gulf between them in their basic approach to the organization of state power. From a political, institutional and cultural point of view, what this message means is that democracy is only a transitory requirement, and the determination to instigate steps, as and when they are feasible, to achieve totalitarian objectives are already on the agenda. 



End of Fanaticism 

After all, the independent critical mass of this country has not forgotten how the Maoists declared war against parliamentary democracy when it had already started delivering its promises. The atmosphere of secrecy and disinformation, which are consistently dished out by Maoists for strategic purposes explain for themselves without any hitch. In the absence of clarity of purpose and strategy, the seven parties also look fragile, vulnerable to outside maneuverings, and indeed facing the legitimacy crisis from within. Despite the efforts of all parliamentary parties combined, and the goodwill of the international community, they are not successful to appeal to the political senses of the new generation. It needs to be pointed out in the same vein that the King of Nepal might have lost a part of his credibility; he has not lost his appeal. This all shows that there is an urgent need to sit together and turn the ossified political scenario into creative one. 

In fact as Winston Churchill said, those leaders are fanatic who can’t change their mind and won’t change the subject as well. This attitude cannot help transform the nature of the ongoing conflict in Nepal. In war as in life, it is often necessary when some cherished scheme has failed, to take up the best alternative open, and if so, it is folly not to work for it with all available strengths. Elections can be a point of departure, and the revival of the constitutional process can give a basis for optimism. The Constitution of the Kingdom of Nepal continues to plead what is inherent in the famous quote – “God save me from my friends – I can protect myself from my enemies.”

[1] These cases caught the attention of many human rights activists and organizations for a variety of reasons.  

Firstly, these cases concerned people who had a proclaimed political mission and challenged the legitimate or established political authority of Cambodia to achieve their mission by violent means, and whose organisation had a foreign origin. Secondly, the initial response of the Royal Government of Cambodia to their operations had also been heavy from the very beginning giving a strong image that the human rights concerns of these activists were under intense threat. As the number of those apprehended and arrested people grew, there were further doubts on the integrity of the law enforcement machinery, and concerns were expressed from different quarters that the Royal Government was using the CFF incidents also to arrest and prosecute its political opponents, other than the CFF. Thirdly, the courts which heard and decided these high profile criminal cases also seemed to be under intense pressure of the government which generally manifested a poor record of accomplishment in honoring judicial independence.  

The Cambodia Office of the High Commissioner for Human Rights (COHCHR) monitored most of these trials at the trial courts of Phnom Penh and other different provinces of Cambodia. Taking these cases as test cases, the objectives of monitoring these trials were – to monitor the fair trial standards in action in Cambodia, estimate the accomplishments of Cambodian judiciary in this matter, study the loopholes in the justice process, and present them to the actors in Cambodia’s judicial reform process. This report gives a summary account of the trial observation and monitoring exercises in general terms and our analysis and general conclusion about the issues before hand.  

First, the report gives a synopsis of imputed facts. Then it deals with charges against the accused persons, available evidences against them, the necessary elements of crime to be established, and the international fair trial standards, which are in principle already internalized by the Constitution and other laws. A number of sample cases involving a variety of suspects with different age and background has then been discussed which explain the realities of the situation in the background of the charges made against these suspects.[2] The stage then is ready for the detailed analysis of the pretrial rights and the rights at trial. The report concludes that, while Cambodia has improved its judicial procedures in very many senses, it does not score much in the application of fair trial standards. There are still many shortcomings in the justice process both in the application of pretrial rights and the rights at trial. These shortcomings are not only infrastrucural but attitudinal also.   

1.    Imputed Facts  

On the night of 23-24 November 2000, some 50-strong force of alleged anti-government insurgents attacked several government buildings housing Council of Ministers, Ministry of Defence and Military Base E70 using B-40 rockets, grenades and AK-47s leaving at least four dead and 18 police officers injured. One civilian was reportedly killed in heavy gunfire. Municipal officials identified the attackers as members of CFF which, they claimed, launched the attack to undermine the government’s hold on security in Phnom Penh. Chun Yasith, 43, a Cambodian American living in California, was said to have made the entire plan for the attack including determination of the main targets to be destroyed. Government arrested an alleged ringleader, Richard Kiri Kim, a Cambodian-American member of CFF who freely admitted directing the raid. The anti-communist organisation Cambodian Freedom Fighters admitted plans to overthrow the government. The CFF press release of 24 November, which the UNCOHCHR received only a few days later, claimed that the purpose for the attack were threefold: firstly to test the strength of the Cambodian government, to stop the planned visit by the Vietnamese President and to stop the ‘Vietnamisation’ of Cambodian society.  

In 2001 three separate incidents took place: bombings at the Vietnamese Embassy on April 13, blast outside the Ministry of Foreign Affairs on July 5, and the attack on Funcinpec Party Headquarters August 8.  Hand grenades were used on these attacks, one person was injured in the attack at Funcinpec headquarters, but there were no casualties anywhere. All these incidents were attributed to CFF fighters. Apart from them, various other activities of the suspected CFF members or activists were also made the subject of investigation and prosecutions.  

2.    Charges  

There were generally two charges against the accused in all CFF cases namely the charge of terrorism and the charge of participation in an illegal armed group.  

The Law on Punishment of the Acts of Terrorism 1992 defines acts of terrorism as “those acts of violence which are committed by one sole individual or one or many groups of persons which create panic amongst the mass of the people aiming at causing strong turmoil to the public order and security and affect the political stability.”[3] The Law contemplates two types of punishment for the acts of terrorism. Firstly, offences like kidnapping or detaining people with a view to subversion, extortion of money, revenge, taking of hostage for selling, and other acts of terrorism are subjected to punishment to imprisonment from ten to twenty years. In case if such kidnapping or illegal detention of the person(s) or such act of terrorism was made on a minor person or which caused any victim to death, such offender shall be subjected to life imprisonment regardless of any attenuating circumstances.[4] Secondly, any one who attempts to kill or kills people with prepared intention in the purpose of conducting terrorism shall be punished to life imprisonment regardless of any attenuating circumstances.  

The charge of illegal participation in a group is based on Article 36 of UNTAC Law.[5] This Article states that “any individual, who has taken part in a formal or informal association set up for the purpose of planning one or more crimes or misdemeanors against person or property, if specific acts of preparation of these offenses have taken place, shall be liable to a term of imprisonment from three to fifteen years.”[6]  

In a few cases, the charge of complicity under Article 69 of UNTAC Law [7] was also made. Similarly, illegal possession of weapons was also prosecuted. But the basic issues in all these cases were terrorism and organized crime.  

3.    Trial  

In June 2001, the first trial of 32 persons suspected of involvement with the CFF and the 23-24 November 2000 attack, was held at Phnom Penh. Two persons were acquitted, while others were sentenced to prison terms ranging from 3 years to life imprisonment for conspiring terrorism and/or organized crime. Chhun Yasith, 43, the leader and Thoang Samean, 50, were tried and convicted in absentia. Most of the convicts appealed against the conviction.  

The Phnom Penh Municipal Court tried a second group of 28 CFF suspects in October and November 2001. The trial was held, as before, at the Supreme Court building due to the large number of suspects and the limited infrastructural capacity of the Phnom Penh Municipal court. Two persons were acquitted and others were convicted to imprisonment ranging from 3 to 15 years. All convicted prisoners moved appeal to the Court of Appeal through the Phnom Penh Municipal Court.   

The third round of trial of 23 accused persons, three of which were tried in absentia, was held in February 2002. They were said to be taking part or involved with the bombings at the Vietnamese Embassy, Funcinpec Party Headquarters and the blast outside the Ministry of Foreign Affairs. The trial was held at Phnom Penh Court building itself. The court convicted 19 suspects including one who was tried in absentia. It ordered reinvestigation of three of the suspects including two of the suspects who were tried in absentia as the trial judge thought that the investigations of the charge against them were not complete. Among those who were convicted, one person was subjected to life imprisonment, four persons were sentenced to a term of 20 years, and the rest were sentenced for terms, which ranged from 8 years to 15 years. Only one of the three suspects whose cases were subjected to reinvestigation was released on finding innocent.    

Trials were also held in Battambang, Siem Reap, Banteay Meanchey and Kampong Cham provincial courts of smaller number of suspects locally arrested. Among the trials held outside Phnom Penh, the Battambang trial was the biggest one involving 18 suspects, none of which were found innocent. By the end of April 2002, the number of those who were prosecuted crossed 100.  

4.    Evidences  

Various types of objects were produced at the court as evidences by the prosecutor to prove the charge. At the first round of trial, they included 43 AK 47 rifles with 740 bullets, 1 B40 Barrel, 20 hand grenades, 10 AK magazines, 1 Compaq Computer, and other materials like hand phones, CFF flags, badges, medals, CFF documents and IDs etc. Evidence produced in the court during the second and third round of trial in Phnom Penh included a big CFF flag (which bears on its surface a number of signatures of different unidentified persons), some small table flags, CFF membership cards, one or two military (camouflage) uniform/s and some books/diaries.  

The sort of the evidence presented during all the CFF trials held in the provincial courts was not different in any sense. All these materials were presented during the hearing. There was a general problem of relating these objects with the accused and how they proved the suspects gui1lty. In some cases, there was no linking of these evidences with the involvement of the suspects in the case.  The prosecutor was relying not only on the evidential value of various pieces of evidence, like ID’s, pictures seized from CFF leaders and documents seized from the Computer of a CFF leader, but also on written statements given by the suspects before the police, prosecutor or investigating judge. Most of these written statements were not confirmed during the trial. A general type of inadequacy was thus seen in proving the elements of crime as suggested above.  

5.    Elements of Crime to be established  

The charge of terrorism will be reasonably proved when all the following elements are present and it is proved that the accused are involved in all the elements which are following:  

·       There must be evidence to show that the accused attempted to kill people or did in fact kill people. It must be proved that the accused did an act or participated in an act that led to the death of one or more persons. It must also be proved that the accused had the intention to kill. An attempt exists when the accused has committed acts which go beyond preparatory acts with the intent of committing an offence but fails in his venture owing to circumstances beyond his control in that he did not himself put a stop to his venture.  

·        The accused must have had the intention and purpose of conducting terrorism. It is not sufficient for the accused to have attempted to kill people or actually kill people. It must also be shown that the accused did the killing or attempted to kill with the intention and purpose of conducting terrorism. In order to find out what is terrorism Article 1 must be referred to.  

·    Terrorism consists of acts of violence. It must be proved that the accused committed in that they participated actively in the commission of these acts of violence. What amounts to acts of violence is for the judge to decide on the facts of the case.  

·      Acts of violence consists in creating panic amongst the mass of the people and are aimed at causing strong turmoil to public order and security and affect political stability. Once the judge is satisfied that the acts of violence were perpetrated he must go on and find out whether from the evidence it can be said conclusively that these acts of violence created panic amongst the mass of the people and aimed at causing strong turmoil to public order and security and affected the political stability of the country.  

·        All these elements of the offence must carefully be analysed and the evidence in support of each of these elements must be determined. If there is no evidence to prove one or more of these elements then the accused must be acquitted.  

Apart from them, there are other issues regarding the offence of “organised crime.” To confirm the charge of organised crime, the prosecution must be able to prove that the CFF is an ‘association’ as mentioned in Art 36 of UNTAC Law. In other words, it must prove that the intention was to topple the government by using violence. If CFF is not an ‘association’ as the said provision contemplates, can the group of people who took part in the (preparation of) attacks be considered as an (informal) association as mentioned in Article 36? Is membership of CFF sufficient for a conviction? Article 36 mentions ‘taking part’ in an association which requires more than just being a member. What if the perceived ‘members’ were not aware that they were members of CFF or did not know about the purpose of this association? Similarly, what is the meaning of ‘taking part’ in the offence? Does for example transportation of radio-communications or providing a meeting place for the benefit of CFF/the above (informal) association, fit in this definition? No, unless there is a knowledge of the criminal intention of CFF/above (informal) association. The same question is for ‘complicity’ to acts of terrorism.  

It is important at this stage to emphasize these elements because although, so called leaders of CFF quickly claimed responsibility for leading the attack, but it was still suggested that the attack was politically framed up. Undoubtedly, many people suspected that the government set up one of the movements and controlled the other through the infiltration of military intelligence. Insecurity situations have been created in the past to divert attention of the people, for instance, the arrest of Srun Vong Vannak by linking him to the murder of his brother in law, Kov Samuth, March 1997 grenade attack in front of the National Assembly, the July 1997 coup, grenade attack in September 1998 at his Phnom Penh residence which was used as an excuse to crackdown opposition demonstration.[8] So the argument goes that the incidents were used as a pretext to hunt down opposition activists and politicians, Funcinpec-affiliated generals, and former Khmer Rouge commanders. General Mul Roeup was responsible for putting up two lists of more than 200 suspected terrorists linking to CFF prior to the incident.   

It is thus not out of place to quote the following paragraph from the judgement of the first round of CFF cases:  

Any accused, whose name and designation are stated in the document on the organisational structure, and which bears thumbprint and acknowledgement of the mastermind, Kim Kiri Richard, should be considered by the court for imposing punishment in accordance with the law. However, those accused who were arrested by the competent authorities but whose name and designation are not available in the document on the organisational structure of the mastermind, Richard Kim Kiri, should be considered for punishment according to the law only if their involvement is supported by strongly compelling and consistent evidence which prove that they certainly have participated in the offence.   

6.    Fair Trial Standards  

The Constitution and several other laws of Cambodia guarantee all accused with both pretrial rights and rights at trial in order to accomplish what is know as fair trial. Implicit in the concept of a fair trial is the independent judiciary and the principle of equality of arms where the defence and prosecution are given equal status, equal rights and equal opportunities to present their case. The following standards are suggested as compulsory requirement in Cambodia:  

·         Pretrial rights include the right against illegal arrest or detention, the rights of the people in custody to information, the right to legal counsel before trial, the right of detainees to have access to the outside world, the right to be brought promptly before a judge or other judicial officer, the right to challenge the lawfulness of detention; the right to trial within a reasonable time or to release from detention; the right to adequate time and facilities to prepare a defence; rights during interrogation; and the right to human conditions of detention and freedom from torture.  

·         Rights at trial are the right to equality before the law and courts; the right to trial by a competent, independent and impartial tribunal established by law; the right to a fair hearing; the right to a public hearing; the presumption of innocence; the right not to be compelled to testify or confess guilt; exclusion of evidence elicited as a result of torture or other compulsion; the prohibition of retroactive application of criminal laws and double jeopardy; the right to be tried without undue delay; the right to defend oneself or through counsel; the right to be present at trial and appeal; the right to call and examine witnesses; the right to an interpreter and to translation; the right to a public judgement, ands the right to appeal.  

·         It is important to note that the Constitution assigns the Kingdom of Cambodia to recognise and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the Covenants and Conventions related to human rights, women’s and children’s rights. Needless to say, this provision supplements the Cambodian legal regime with existing international human rights standards of fair trial as well.  

7.    Some Instances of Hearing  

By April 2002 more than one hundred alleged CFF suspects were already tried by different trial courts of Cambodia. Although the trials took place in different courts, the cases often had common patterns. There was limited focus on most critical elements of criminal liability – i. e., an act was not wrongful unless accompanied by a wrongful state of mind, or as a general proposition, one cannot be convicted for mere criminal thoughts; one must normally do something towards bringing those thoughts to fruition. Some of the sample cases are discussed here for the purpose of this report.  

In June, the first trial of 32 persons suspected of involvement with the CFF was held. The first accused who was brought before the court was Richard Kiri Kim, 37, the General Secretary of CFF. As soon as the trial judge read the charge against him, Richard complained that the court was not independent, and that he be released immediately because he was detained in excess of six months,[9] implying that failure to comply with this rule enabled the accused to apply for immediate release.[10]The trial judge rejected these contentions on the ground that it was for the investigating judge to release the prisoner on this ground. He asked instead: “Please tell us when did you create this armed gang, and what was your purpose?” In the course of proceedings, he replied: “… [M]y group is a political group, which held meetings along the border and in the Long Beach, California in 1999. These meetings were legal, and held with permission from the USA  … This is a political organisation, a legal one, not an armed group …” Richard said he was in USA during 1990-93 as an engineer, and after that for about eight years, he worked with an NGO in Cambodia, built schools and helped children. In other words, he was neither a terrorist nor he had any terrorist background.  

Richard said he was arrested without warrant. He referred that he had not to that day seen the judge who had investigated his case: “How can my lawyer reach the investigating judge? Since I have been detained, I have never seen, heard or met the investigating judge. … How can he make a decision when he has never contacted me up to this point?” There was no comment on that by the trial judge. Richard was asked about the information on the Computer confiscated from his house. Some evidence presented at the court – i. e. ‘badges’ of rank and file, brochure (pamphlets/booklets), organisation chart, etc – which the judiciary police said were printed out from the same Computer. His answer was that he cannot speak anything on this matter unless he has been allowed to see and make sure if it has the same information, or that they have been changed. The judge said: “You have no right to see the Computer.” Most of the questions which the trial judge and attending prosecutor posed at him during the hearing were directed at securing more information about CFF and its departments, military profile, hierarchy, and similar other details. At one stage the judge said: “Stop talking about evidence. Turn to terrorism of 24 November. I ask you what was your role on 24^th.” He said he was asked by Chhun Yaseth, the Commander, to be the commander for the operation just two hours before, for which he was not prepared. But later he conceded to take the charge. When the prosecutor asked if the weapons shown on the exhibit table belonged to the CFF, he said he did not know about the weapons as the responsibility for military operation was vested in Commander in Chief and other commanders.   

The newly appointed lawyer for the suspects, Puth Theavy, wanted to know the names of other six persons in the central committee of CFF apart from Chhun Yaseth and Thong Samean. Richard was upset with this question of the defence lawyer appointed by the court. He rejected to answer. Again he inquired if CFF has any relation with the movement led by It Soung of Khmer Serey (Free Khmer). Richard said there is no relationship of any sort. But as a whole, it was not clear how the defence lawyer consolidated the defence of Richard  Kiri Kim by asking these questions. Finally, the court imposed a life sentence on him.  

Chey Vandy, 39, another accused during the first round of trial, also rejected his earlier confession given to the investigating judge and said that it was done under threat. He said he did not join the CFF at all. The confused prosecutor said aloud: “On what evidence Chey Vandy was arrested? His name is not in the organisation chart. I want the authority to clarify the relationship with CFF and Chey Vandy …” The policeman who arrested him, and who was present at the court told the lawyer of the suspect:  “he was in the list of people we were to arrest.” The police assumed that since Chey Vandy had held no clear position, he must have been in the combat force of CFF. The judge asked where he was during the operation in Phnom Penh. He replied: “I was running a motto at home. During the fighting I was sleeping at home with my family.” Chey Vandy was convicted of organised crime and served with the imprisonment of 3 years.    

The case of Chhun Hourng, 46, during the first round of trial can be another sample case. On being asked at the open court why he joined CFF, Chhun said his idea was to make an association. Yum Neam, his firiend who briefed him about CFF just did it in that sense. In the confessionary statement that he gave to the investigating judge of Kampong Cham, wherefrom his case was transferred to Phnom Penh, he stated that he was in CFF since 1998. He also had said that he held a CFF position at Kampong Cham, and he had his office at his own house. He further pointed out:  “The organisation structure at the district level was not made by me; it was made by Prak Porsa who worked as a rubber plantation filed at Peak Chan. Prak Porsa said he had sent the names to Phnom Penh already. Park Porsa was my Deputy…”  

Chhun identified the document that he had signed before but said that the statement is untrue. He further said that he did not know about the movement of CFF. What he knew was that Richard Kim Kiri was in charge of the organisation which aimed at the development of Cambodia. He further said that he received no letter of appointment. Chhun Hourng was also convicted of organised crime, and was sentenced for three years.       

The Phnom Penh Municipal Court tried a second group of 28 suspects in October 2001. Many of the same concerns were reported for this second round of trial with the exception that the trial was public from the start.  

Sok Som, 23, farmer, was born in Kandal province. He was arrested on 24 November 2000 by military police. He used to work at the factory. He said he did not know about the incident.  At the time he was arrested he was in the house of Tuol Key. He did not know that the house had some weapons inside. On 23 November at 6:30pm, Phany, the house owner, had told him to bring food (two parcels of food) for 30 people at a hill in the rice field.  He told that if he did not agree he would be shot dead. He said they pointed the gun at him and he went home to sleep because they ordered not to talk. On 24 November at 7:00am, the authorities arrested him and Phany.  He took the authorities to see 30 persons and found 3 weapons. The authorities informed Sok Som was arrested at the house of Phany who is the sister-in-law of Sok Som.  “This person showed the place where ‘2 Ak 47’ were hidden.  Answering to the question of his lawyer, he pointed out that when Khoeun the person who brought him to Phnom Penh on November 23, a day before the incident, he did not tell him anything about CFF.  

The Prosecutor interrogated him with a number of questions. He concluded that Sok Som came to work as the factory worker and he was asked by Khoeun for that.  On 23 November, Khoeun brought him to Phany who later asked him to bring food to a force of 30 persons.  Although he claimed that he was threatened, it was clear that he brought the food voluntarily.  This is a pretext.  It cannot be taken into consideration. He provided food for the armed group. With these arguments, the prosecutor gave his conclusion that Sok Som was involved in the group of terrorist. He further said that the person was involved in terrorism even though he was not in the CFF ‘structure list.’ Thus he affirmed his charge of participation in illegal armed group with the intention of causing chaos, instability, and terrorism.  

Lawyer of Sok Som, Chum Sovannaly, argued that the incidence was organized by CFF and Sok Som was not involved in the acts because on 23 November at 7:00 am, he came from the lake, Ponhea Leu, Kandal.  He came to Khoeun’s house in Tuol Key, Phnom Penh.  Khoeun brought him to work as the factory security guard.  It is not strange that poor people look for employment. He rested in Khoeun’s house for a night as a relative.  At 8:00pm on the same day, Sok Som was asked to bring the food.  It was normal to do this sort of job when somebody is a guest in the house of other.  He has never known CFF. He was intimidated to confess. He was arrested on 24 November and he was brought under legal detention only in 7 December 2000, or 13 days after the arrest. This violated the procedures specified by Article 13 of UNTAC. There is no evidence which shows that he is an associate of the CFF. There is no witness to testify. He was arrested in the house where he was a guest; it was not a case of flagrant délicto. Additionally, the lawful period of pre-trial detention was exceeded. The lawyer said that he had submitted a petition for his release; there was no response from both the trial judge and investigating judge. This violated Articles 21, 22 and 14 of the UNTAC law.  

Sok Som was convicted both of organised crime and terrorism, and was sentenced to a term of five years. The decision of the court did not respond to his statement at the open court that he was told to bring food (two parcels of food) for 30 people at a hill in the rice field, and that he would be shot dead if he did not agree to comply.  

Similarly Top Chea, male, 22, construction worker and farmer, was also tried during the second round. Top Chea accepted the statement of confession that he gave to the Military Police and Investigating Judge.  He said he was told to work as a construction worker for better salary in Phnom Penh by a person called Nuon Nath. As such, he came to Phnom Penh by taxi with Chea Kim San and Nuon Nath.  He stayed in a wooden rental house. Top Chea told that there were 3 males in the house, there was no one else. The house owner and his wife were there.  “At 2:30am, I was waken up and led to the railway station. They pointed the gun at me.  If I did not take the gun I would be shot,” said Top Chea. He did not know how many other people were in the force and how many were led at gunpoint.  He was threatened and he shot on the air several times. He went out of the railway station from main entrance with a full magazine and an AK 47 rifle.  He saw yellow and red bans and he threw it away. He denied that an unknown man told him to work as a U.S. soldier to get USD 200 every month. He told that he did not know any such thing.   

The prosecutor however pleaded that Top Chea came to Phnom Penh and stayed in the railway station. Nath brought him with other associates and stayed on the same house.  The house owner made the arrangement for it.  At night, 12:00 am, his group brought weapons.  Chea Kim San and Nuon Nath received weapons and then walked out. He admitted receiving a gun and walked out of the railway to open fires 4-5 times. He was arrested at the place of incident. The prosecutor referred to the fact that Top Chea acknowledged being cheated out but he argued that he had intention to participate in the battle. If he did not have intention, he would have escaped right away. He received the weapon and fired the authorities.  This, the prosecutor argued, showed his participation in terrorism. Lawyer of Top Chea, Chhor Lithay, however, argued that Top Chea was arrested at 7:00 in the morning.  He came to Phnom Penh for a job and he did not know what CFF was.  

Top Chea was also convicted of both the offence of organised crime and terrorism, and was sentenced for ten years term of imprisonment.  

Phy Sovann, 40, businessman, was arrested on 24 November 2000. He came to Phnom Penh on 22 November with a man named Kdeing who he knew during the SOC (State of Cambodia) time as a taxi-driver.  Kdieng asked him if he wanted to come to Phnom Penh.  “I had no job to do.  [As such,] I decided to come with him,” said Phy Sovann.  At 4:00 pm, he arrived in Phnom Penh, the car got flat-tier, so he separated with Kdeing at the taxi station.  On 23 November, he walked down to Ta Khmao to get a bus.  His friend asked him to help look for a car.  “I did not ask where his residence was.  I just went with him.  I was taken to a place near Neak Van Pagoda. Some people were there. They had drink until 12:00am.  I was so sleepy and I went to bed.  At 2:00 a.m, people called me and I went with the group. If I did not carry the B-40 gun, I would be shot.” said Phy Sovann.  

The prosecutor said Phy Sovann recognized that he traveled from his house on 22 November. He stayed in the railway station on 23-24 November. After receiving top of B-40, he walked after the group.  He stopped and went to hide in the wagon.  This showed he was in the armed group because he carried out terrorism in the organized armed group. The prosecutor also pointed out that he was arrested at the place of incidence on 24 November.  

Puth Theavy, the lawyer of Phy Sovann, argued that according to the charge sheet the accused left Kampong Thmor for Phnom Penh with Pheap. On 22 November 2000, Pheap asked him to help to buy a car for him. Until night on 23 November, the purchase of the car could not be done. He went to have a drink and then went to Pheap’s house where some people were drinking local liquor. He was drunk; he was not in a good sense. He carried bayonet of B-40 because of fear. They said if he did not carry, he would be shot dead.  When he walked for 200-300 metres, another person came and took that top of B-40. Then he came back to sleep. He was arrested in the morning. He was not able to operate the armed group.  How can the client create the armed group within one night and one day? To create an armed group, they need time, plans, and weapons. He was put at the gunpoint.  

Phy Sovann was also convicted of organised crime and terrorism and was sentenced for a term of seven years.  

The third round of CFF trial in Phnom Penh has some other stories. A couple of cases may also be discussed at this stage. Seang Hay, 51, who was charged of organised crime and terrorism in the context of the failed coup of November 24 and bombings at the Vietnamese embassy and Funcipec headquarters and the blast outside the Ministry of Foreign Affairs can be taken as an example. The charge read against him at the hearing did not look specific. Evidence produced in the court included a big CFF flag (which bears on its surface a number of signatures of different unidentified persons), some small table flags, CFF membership cards, one or two military (camouflage) uniform/s and some books/diaries. Included in the files were some faxed documents from the United States which, among others, mentions the name of Seang Hay, who was being treated as the most important accused in the group. These evidences, however, were not enough to prove that he was the Commander of the CFF in Thailand as stated by the Prosecutor, and had ordered the explosions/blasts there. Additionally, he also rejected the confession given to the police and the prosecutor, but accepted some of the details including the fact that he was the second bureau chief of the CFF operations in Thailand. Seang Hay was convicted of both terrorism and organised crime, and was committed to the prison term of twenty years.  

Most of the suspects seemed to be the people without sophistication. All of them said that they were forced to confess (some even dared to say that they were beaten up at police custody, and that even the statements given to the prosecutor were taken either in the presence or in close range of police who accompanied them to the court). For example, Ek Chamroen, Ri Borann and Khieu Radoeun, who were accused of planning the attack on the Vietnamese embassy denied the charge in the beginning, but later gave admission on some of the points raised by the court. Suspects Keo Tak, Neak Salim, Cheang Sophal and Phlong Bunthouen all testified that they were not directly involved in the grenade attacks on Phnom Penh’s Funcipec Headquarters, National Assembly and Ministry of Foreign Affairs. But later, after repeated questions and answers, Keo Tak and Neak Salim came to concede that some strangers paid them some money to recruit rebels and send their names to the CFF office in Thailand. Suspect Sri Sren who flatly rejected to corroborate any statement that he gave before to the police, prosecutor or investigating judge was asked by the judge not to be ‘stubborn’ and confess right away.  

The entire thrust of the court was to insist on reconfirmation of the statement of the accused in the dossier. Except in the case of the Cambo-American accused Sao Chum Gilbert, and other two persons named Sok Thy and David Chan, all of the suspects were made to accept some part of the statement they gave to the police or to the prosecutor implicating themselves. Gilbert denied of any involvement in the CFF attack, the bombings of Funcipec Headquarters, the Ministry of Foreign Affairs and International Cooperation or the Vietnamese Embassy last year. Gilbert was arrested in September 2001. Like Gilbert, all alleged CFF members standing trial with him were arrested in September and October of 2001. That means they all were arrested after 9 or 10 months of the fighting of November 2000; and the prosecutor till the end of the trial submitted no evidence to show that they took part in the fighting. There was little direct evidence linking the current defendants with the November 24, 2000 fighting.  

Curiously enough, the judge ordered reinvestigation of the case of Sok Thy, who was one of the 20 suspects brought for trial. He also ordered reinvestigation of the cases of Peter Leng and Chhun Chhoung, and asked to trace out their background in particular. Both of them were being tried in absentia and reportedly live in the United States.  

Several cases were heard outside Phnom Penh as well. The Battambang Provincial Court heard cases of eighteen CFF suspects in March 2002. Two accused were not represented by any lawyers. Even during the trial, they were requesting the court to provide one to plead their defence. But there was no response. The material evidences like CFF flags, booklets, guns, etc were produced in the court. The guns, ammunitions and flags, etc which were confiscated and exhibited at the trial room were said to be confiscated from the accused Chan Vorn, Chea Chhoy, Chhan Chuob Sambath, Suy Bour and others. They however counter-claimed that these evidences although confiscated from their possession belonged to the local military, and were still with them, as they had not surrendered them to the military as ex military men. Only two suspects – Sin Soth and Some Bin – confessed at the court. All others denied the written statement given to the police or prosecutor. At this the judge asked the suspects to produce evidence in support of their innocence. He also said that even if it is assumed that the police forced them to confess, what forced them to repeat the confession at the office of investigating judge. The judge was seen consulting the Phnom Penh Court’s CFF judgement of February 2002. No one was released by the judge on any grounds including lack of concrete evidences. All were convicted for 13 to 18 years of imprisonment.  

On 5 April 2002, three more CFF suspects were convicted to (suspended) imprisonment sentences by Siem Reap Provincial Court. Meas Savoeun, the Siem Reap suspect, stated during the trial that the police did not tell him why he was arrested. Later, he was told that he was arrested because his name was on the CFF list. The judge replied by asking him how many times he had been interrogated. He added that he had to prepare himself to “find evidence during the trial”. Lek Bunnhean, another suspect being tried together with him, did not reply on the question about awareness. The judge did not ask about it again. Mav Srei, the third accused, had not been arrested, nor pre trial detained.

Prosecutor started to accuse all these three suspects together during the trial. On August 10, 1998, Lek Bunnhean would have been recruited by CFF in order to disturb the government. Lek Bunnhean is a former police official and is currently a brothel owner in Osmach. In 1997, a Khmer/US citizen would have approached him in Osmach in order to join the CFF. In 1999, Lek Bunnhean would have stayed in the house of MS in Siem Reap, who also would have been involved in CFF. On September 23, 2000, Lek Bunnhean would have been in Phnom Penh, where he got some money from the government. Meas Savoeun would have been working as a military official in RCAF Region 4 (around 1000 subordinates) in Siem Reap, as a cover or a mean for CFF activities. He would have been complaining about a lack of salary towards his military commander around that time. Meas Savoeun eventually got salary from Chhun Yasith in 2000. Chhun Yasith would have said to him: strengthen your forces; you will get money from me. Mav Srei joined the CFF as secretary of Chhun Yasith. In 2000, Meas Savoeun got money from CY. He would have get respectively 1000, 500, 200, and 200 US $ from Chhun Yasith. Also, a gun has been found in the house of Meas Savoeun (against art. 36 UNTAC). There was a gun lying on a table in the courtroom. The judge stated that Meas Savoeun would have gained the gun by/for the purpose of CFF. Mav Srei (Mav Srei) would have obtained 650 US$ and 300 Bath from Chhun Yasith. 
 

Lek Bunnhean asked the Judge that in 1997, a US person called Hok Srey, asked him to set up an organization. He said he agreed as he had nothing else to do, and he was under the impression that it was an appropriate plan. Yes, he did sometimes come to Siem Reap to see Meas Savoeun; the latter was involved in the development of the organization as well. Lek Bunnhean was aware about the plan of Meas Savoeunto send forces to Kratie. He did not know why. Lek Bunnhean said that he did not see Chhun Yaseth in Thailand; he phoned with Chhun Yaseth sometimes. Lek Bunnhean did not reply on the question from the judge whether he received weapons from Chhun Yaseth.   

Judge asked Meas Savoeun whether he met Chhun Yasith in Thailand; why he was appointed as a military official for Region 4 and what he did with US $ 1000 US he got from Chhun Yaseth. He said only “no” on the first question.  

Mav Srei stated to the judge that she has been in touch with Chhun Yaseth by phone a few times. Lek Bunnhean knew nothing about these contacts. The judge said: “so later you realized that your activities were not good and you confessed to the government…”. She confirmed this statement. The judge stated (but no evidence presented) that Mav Srei received money in August and September 2000 (total US $ 450). Also, the judge said that Meas Savoeun received about 27 phone calls from Chhun Yasith.  

Meas Savoeun stated that he got the gun from the former governor of Siem Reap and that it had nothing to do with CFF. There was no evidence provided linking the gun to the case. He stated to the judge that he never met Chhun Yaseth in Thailand. The Judge asked why he had been appointed as a military official and involved in CFF. He also asked what he did with the money he got from Chhun Yasith. There was no reply from Meas Savoeun on this. The Judge stated to Meas Savoeun that he received 27 phone calls. But no evidence was presented at trial about this. Similarly, there was no evidence about the transfer of money, and the shopkeeper or his concerned staff was not present at the trial.   

Mav Srei and Lek Bunnhean admitted that they were involved in CFF initially, but that as soon as they realized that they were involved in illegal activities, they stopped collaborating with the CFF people. They said they did not realize that it was illegal at that time; they just thought that they were doing some business/building up an NGO. They had transported some phones, or had made some plans for doing this. They were not clear when they stopped doing it. Later during the trial they said that they stopped their involvement in 2000). Mav Srei stated that she never received money from Chhun Yaseth, but she agreed that she was in touch with him (temporarily).  

The prosecutor said that it was hard to find evidence in her case, but because she was accused of being involved in acts of terrorism, it was easier to find evidence. So, if her name was on the list, she was already assumed to be involved. Other CFF suspects/convicted informed the court about her involvement, but they were not present at the trail. If she was not involved with CFF, then why did she contact Chhun Yasith?  

Lek Bunnhean stated that Meas Savoeun never came to Osmach. He said that he met Mav Srei there one time, but that he did not know that she was the wife of Lek Bunnhean.  But Prosecutor stated that Meas Savoeun came many times in the brothel of Lek Bunnhean and that Mav Srei went to Thailand at least 20 times, 2 times accompanied by Meas Savoeun. Again there was no evidence or witnesses.  

Lek Bunnhean and Mav Srei agreed again that they joined CFF, but that they did not realize it was CFF of this sort. As soon as they realized they stopped their involvement with it. The judge said that Lek Bunnhean and Mav Srei accused Meas Savoeun from persuading them to join CFF. Only Mav Srei stated during the trial that Meas Savoeun came to Osmach to persuade her to join. Lek Bunnhean did not reply on this (he only said during the trial that he met Meas Savoeun in Siem Reap). Meas Savoeun denied everything. He said to have never been involved in CFF activities. He said that he did not know Lek Bunnhean and Mav Srei and that he admitted the crimes because of torture/intimidation committed by police and investigating judge.   

The court clerk read aloud some statements during the trial. They included statement of several co-suspects from Phnom Penh and shop owners of shops to which money was transferred and also reports on interrogations of the three suspects. Witnesses were absent. This prevented the accused from presenting proper defense on the contents of these statements, credibility of witnesses and the way in which the statements were obtained. Only Lek Bunnhean, Meas Savoeun and Mav Srei were, as being suspects, were present in the trial room. They accused each other in the statements they gave.  

Meas Savoeun stated that Lek Bunnhean persuaded him to join CFF, but they did not clearly persist in their statements during the trial (apart may be from Mav Srei). Prosecutor stressed that Lek Bunnhean and Mav Srei later realized that they were acting inappropriately. Prosecutor also states that Meas Savoeun was on the CFF list from the beginning. Lek Bunnhean and Mav Srei were not, so initially they were not prosecuted. Later, the court changed its mind, because they might continue illegal activities if not prosecuted.  

Lawyers had questioning of their clients and other suspects during the trial. In their pleas, they mentioned some procedural irregularities but stressed the lack of evidence in particular. They emphasized that the involvement with CFF is only found out from the statements of Lek Bunnthean and Mav Srei, which were vaguely confirmed during the trial. Meanwhile, the judge seemed indifferent about their arguments. He was busy adding something on the pre-written verdict with a red pen. He did not seem to listen to the lawyers. The three suspects got the last word in the trial. The judge did not take time to think or further make up his mind. Obviously, the verdicts were pre-written and sentences were decided before he started hearing.  

The case of Im Yoeu tried by Kampong Cham Court is yet another example. Im Yoeu was arrested on October 27, 2001 by Military Region – 2 which later sent him to provincial police of Kampong Cham. In the confessional statement he made to police he said he had joined CFF movement on the persuasion of two of his friends. One of the these two friends identified himself as a representative of CFF leader. He was appointed as commander of Division – 1.  

In September 2000 at Vat Than pagoda in Phnom Penh, he met with four other persons who knew him when they met each other at Funcipec office in Phnom Penh in 1998. He tried to persuade him to join CFF. There, he also met another man who identified himself as special representative of CFF leader. They all had a chat at pagoda for a while about mobilisation of forces. Im Yoeu was told that if he wished to meet the CFF leader, he would be brought to Thailand with a prior appointment made through special representative at Poi Pet. In Early September 2000 he together with two other men went to Poi Pet and met the special representative Ly Hov at a local hotel. Next morning, they were taken to a pagoda in Aranh province, Thailand, where he met the CFF leader. Before returning back to Phnom Penh, each of them was given 1,000 Baht. Back at Phnom Penh, when they met the CFF representative, he scolded them for visiting the CFF leader without taking his prior permission. Since then the representative never contacted him until the November 24 fighting in Phnom Penh. Three days after the fighting, Im Yoeu left for Chamkar Leu district and stayed there till he was arrested.  

In his statement to the investigating judge he said that the confession he made to police is not coerced. He also said he had joined CFF but had never conducted activities in connection with CFF. He denied participating in the November 24 fighting. During the trial as well he repeated the same statement. Except his first wife who was brought to the court, and had no knowledge of anything about CFF and, no other witness were called or appeared during the trial. After an argument from the lawyer that the case lacks evidence in support of the charge, the judge dropped the offence of organised crime, but convicted him of the charge of terrorism. He was convicted and sentenced for 10 years in prison. In fact, his hearing finished in about an hour in the absence of witnesses and other incriminating evidence.  

The case of Nuon Simoeun may also be discussed. Nuon Simoeun told the court that a man named Nol came to visit his house in June/July 2000. He asked Nuon Simoeun to do a job for him, and promised to give money, which Simoeun desperately needed for his treatment. Nol gave 20,000 Riel to him at that time, and lent another sum of 1000,000 after sometime. Nol visited Simoeun sometime later with another man named Phon when he was at a clinic going through treatment. After he recovered and came back to the house, Phon again visited Simoeun, and asked him to write a piece of paper that he has 375 soldiers under his command. He did not want to write such a thing. Then Phon remarked that he will get some money if he does it. Simoeun wrote a mock number of soldiers and demanded US $ 2000 and one hand phone. Because he was sick and could not travel to collect money from Phon, he asked Kosal to get the money from Phon. Kosal left the village for three nights and returned with $ 40 and gave that money to Simoeun who in turn gave five dollar to him for having done the job.  

In August 2001, Simoeun made a trip to Phnom Penh to get more money from Phon. He did not know Phon’s house but they both set a place at coffee shop to meet. Phon took Simoeun to his house, told Simoeun to write about the soldiers under him and gave US $ 400. Simoeun said when he got money from Phon he used that money to pay cost for treatment and stayed home without undertaking activities in relation to CFF. He said he had no contact with Nol and Phon until he and Kosal were arrested.      

In his separate statement, Kosal said Phon took him to meet an unknown man, told him to sit and drink coffee and gave him US $ 50. Kosal changed 10 of 50 dollar for travel expenses and gave 40 dollar to Simoeun who gave him five dollars.  

The judge read a confession Kosal gave to police that he and Phon went to Thailand, met and shook hand with a man, Ghin, who inquired about our forces. During their stay in Thailand, Kosal heard Ghin wanted to send CFF flag with Phon back to Phnom Penh, but denied knowing that whether the flag would be sent upon return from Thailand. During the trial Kosal did not talk how and with whom he came back from Thailand, but said he received US 50 dollars from Phon.  

The lawyer presented the prescription of Simoeun’s physician as an evidence that he was in the hospital and not able to undertake activities related with CFF or mobilisation of combatants under his command in the past. He also argued that there was no strong evidence and no witness testified that he was involved with CFF. All that the prosecutor had was the confession made to police and gendarmes. He also said that his client had never had any contact with the provincial military of Kampong Cham. No arms were found with the accused and there was no evidence that they used any arms. The lawyer also argued that the amount of money his clients received cannot be used to mobilise or prepare armed forces. The whole objective of his client was to find some money for his treatment so that he could live longer. The two names were not in the computerised list seized by the police.  

The prosecutor argued that the paper showing the numbers of soldiers and request for money and hand phone prove that they organised a group of people intended to be against the government. One of the two (Kosal) went to Thailand, met with CFF involved people, and received money and if they did just for money, why they did not confess to authority after they got money.  

The judge decided to sentence Nuon Simoeun for two years in prison and Soeung Kosal for five years in prison under Art 36 of UNTAC Law.  

These sample cases generally represent the sort of CFF cases tried in different courts as of today. In addition to these sample cases, mention must be made of people tried in absentia. Chhun Yaseth, who was believed to be the President of CFF, and Thong Samean, General Secretary, were tried in absentia.  According to the judgment of the first round of cases, Chhun set up the overall principles and plan in order to overthrow the legitimate government of Cambodia and the throne. He carried out the propaganda activities to persuade and mobilize forces and associates of the lower ranks to carry out acts of subversion. He organised the network, persuaded the people to serve the armed group of CFF, and bestowed medals to the associates. He collected and provided fund, arms and equipments. According to the judgement, this accused is the one who drew up the itinerary plan to attack Phnom Penh together with other associates of the lower rank including determining the main targets to be destroyed. The court said that he gave the order to attack on November 23-24 from Thailand on telephone. He was convicted of organised crime and complicity in terrorism with the life sentence.  

The activities and commission of offences carried out by Thong Samean were described by the court as similar to those carried out by Chhun Yaseth. Therefore, the offence with which he was charged was changed from terrorism to conspiracy to pursue terrorism and organisation of armed group leading to the attack of November 23-24. Thong Samean was also convicted in absentia of organised crime and complicity in terrorism with the life sentence during the first round of cases.     

Many other cases could also be added to the preceding discussion. Suffice it to say for our purpose that  there was limited focus on most critical elements of criminal liability – i. e., an act was not wrongful unless accompanied by a wrongful state of mind, or as a general proposition, one cannot be convicted for mere criminal thoughts; one must normally do something towards bringing those thoughts to fruition. The comment is not on the output of trial, but on the requirements of the trial.  

8.    Reinvestigation or Acquittal  

Most of the CFF cases, including those discussed above as sample, demonstrated one thing straight: there was a sort of doubt on the motive of prosecution and adequacy of proof. The existing law maintains that any doubt as to guilt shall be construed in favour of the accused.[11] That did not generally happen. Again, if the court so wished it could have asked the prosecutor or investigating judge to further investigate the case, instead of acquitting the suspects, if it had strong grounds for it. Generally, it did not like to go for this option too.[12]

After all the CFF trials,[13] only a few suspects were found innocent. During the first round of trial of 32 persons, for example, the court found Bun Mony, 47 and Sokh Samith, 41, innocent on both counts of participation in armed group and act of terrorism. Their release was immediately ordered. Some observers expected from the beginning that one or two persons will be declared innocent to demonstrate that there was a full-fledged trial. Some suspects were found guilty only of one of these two counts. The court had found 9 other suspects not involved in terrorism. In other words, they were convicted only for organised crime. The court found Chhun Yaseth and Thong Samean (both of whom were convicted in absentia), Richard Kim Kiri, Nou Sarun, Chhan Yean, Nuon Nath, Veng Sothy, and Kol Sarath who were tried during the first round of trial in Phnom Penh guilty of complicity in terrorism as well. Only a few were ordered with reinvestigation of their cases.

Mention must be made, for example, of the third round of trial at Phnom Penh in which the trial judge ordered reinvestigation of the case of one suspect named Sok Thy.[14] Later, he was released due to the lack of evidence.

9.    Pretrial Rights

These few instances of hearing must be understood in the light of pretrial rights of the suspects. The risk of human rights abuses started at the first moment with the officials raising suspicions against the persons known to be involved with CFF since its establishment. The right to liberty was under threat because several arrests were made without warrant, and many of those arrested were detained in military or police stations, or Ministry of Interior over 48 hours, and pretrial detention over six months. Most of those who were arrested were not given immediate information about the reasons of arrest. Access by lawyers to their clients in prison was denied or regularly restricted in several cases. Similarly, in several cases the lawyer was not enabled to meet in private with his client. The right of detainees to have access to the outside world was also impaired. Visits by family members had been denied or irregularly restricted. The right to be brought promptly before a judge or other judicial officer was ignored in several cases. Above all, the provision of law that any accused person, whether or not in detention, must be judged no later than six months after arrest was also violated in many cases.

In November 1998, at least 16 persons were arrested in Malai, believed to be CFF members, who were accused of organised crime and were detained for several months in Battambang Provincial Prison. Whereas those arrested claimed that they had gathered with a large group of people in order to go to the Thai border in order to receive rice from an American organisation based in Thailand, and carried guns to protect themselves from robbery, the government claimed that the group was organising rebel activity and had been incited by the CFF to stand up against the Prime Minister, and to receive rice in exchange for their struggle. Accusations were made against the group that it confiscated weapons from government authorities as well as civilians. The CFF repeatedly faxed reports to the press claiming that it had organised an opposition demonstration. It criticised the excessive use of force by the authorities during the arrest of its supporters. No trial was held in any of the cases; some of the suspects were released because of lack of evidence; others were released reportedly after influencing the court.  

Again in April 1999, five people accused of being CFF members were arrested in Phnom Penh and charged with terrorism/sabotaging to destroy Cambodian economy. They were suspected of planning to attack a Sokimex petrol stock station in Prek Pnov, near Phnom Penh. Shortly after the arrests, CFF issues a press release, in which it fiercely criticised the government for the grenade attack, the coup d’état, election fraud and immunities given to Khmer Rouge leaders. It did mention the alleged plan of attack on the Sokimex station. All of them were (former) Funcinpec members, two of whom claimed to have contact with Chhun Yasith.  

During mid-end 2000, the COHCHR received several reports that the CFF was carrying out propaganda activities calling for the overthrow of the government by handing out leaflets in at least two provinces in Cambodia. Three people were arrested in Kampong Thom and Kandal Province, and were released shortly after.  In August 2000, one of the leaders of the CFF visited the COHCHR twice and reported about his fear of arrests of members of the CFF. His fear was prompted by speech given by Prime Minister on 24 August, in which the Prime Minister called for the arrest of the leaders of both the CFF and the Khmer Serei movement.[15] Arrests of the members of the CFF started well before the 24 November attack in Phnom Penh. In the beginning of October 2000, three soldiers were illegally arrested and detained for 3 months at the Provincial Military Headquarters in Battambang. They were interrogated about their CFF activities. Again on 17 November, three men were arrested in Siem Reap. On 19 November, a woman who transported equipment for the CFF was arrested in Banteay Meanchey Province.  

Then on the early hours of 24 November 2000, CFF conducted an operation in which it attacked three governmental positions: Council of Ministers, Ministry of Defence and Military Base F70. This attack gave the green light for indiscriminate arrests. Several arrests were made in the wake of the day.  An investigation conducted into the arbitrary arrest and killing of persons allegedly involved in the November 24 attack  showed that arrest without warrants were made on the basis of a list of 50 persons whose pictures were included in the list. Arrests were also made on the basis of another list of 291 names of persons compiled by the military intelligence. Most of these arrests were made in the first few weeks after 24 November. None of these arrests were made with proper warrants of arrests issued by the courts according to law. Most of the suspects were held at the Phnom Penh Municipal Gendarmerie headquarters. Some had been transferred from the province to the National Gendarmerie, others to the Phnom Penh Municipal Police. Some of the suspects who appeared to have been high risk like Richard Kiri Kim [included as a sample case above] and some high ranking police officers like Nourn Nam , Nou Saron, Ma Soben, etc were detained at the Ministry of Interior. Prime Minister Hun Sen asked NGOs to stay out of its investigation adding that the government will arrest human rights workers who were hiding alleged terrorists.    

An unidentified number of suspects were released after interviews conducted at their initial place of detention, for lack of evidence linking them to the attack. Almost all of those arrested who were later sent to the prison were not brought before the court within the maximum period of 24 hours. The court reported to the Office that it was not able, considering their human resources, to deal with in a short period of time with the large numbers of arrested persons. In January, two monks were arrested for alleged involvement with the CFF; in both cases proper arrest warrants had been issued and the monks were brought before the court within 48 hours. As of the beginning of February, 73 persons had been taken to the Phnom Penh Municipal Court. Warrants of detention were issued and charges of terrorism and organised crime were laid against 54 of them. Warrants of release were issued for 19 persons. While all persons arrested in the provinces were transferred to Phnom Penh, one suspect, who is a journalist for Agence Khmer Presses, was in detention in Kompong Cham Province for unclear reasons.  

Arrests of persons believed to be related to the CFF continued in Phnom Penh as well as in the provinces, most of them carried out without issuance of proper warrants. In one instance in Banteay Meanchey Province, a man arrested on suspicion of involvement with the CFF was beaten up seriously. He was released after intervention by the COHCHR Provincial Office and provided assistance for medical treatment. The Office was able to conduct interviews with several suspects while they were brought to the Phnom Penh Municipal Court. The Municipal Court had approved a request by the Office to continue conducting interviews with the suspects, who are awaiting trial in a prison on the outskirts of Phnom Penh. The Ministry of Interior, in disrespect of the competency of the Phnom Penh Court, prevented access by staff of the Office to the prison. The COHCHR did not receive any response to a written request to the Ministry of Interior to allow staff to meet with suspects in the prison.  

Whereas in general, persons interviewed by human rights groups reported that they had been treated upon arrest and during detention according to the law, twelve out of 73 persons brought before the court in Phnom Penh reported they had been beaten or kicked during arrest by gendarmerie or police, and during detention at the gendermerie headquarters.  

The COHCHR, with the good cooperation of the Phnom Penh Court, was able to ensure that most of the detainees, who were brought before the court, were assisted by lawyers from legal aid NGOs or the Cambodian Bar Association. However, since the suspects were detained in the Phnom Penh Prison, lawyers had faced difficulties in getting access to their clients, despite the fact that the lawyers were all officially appointed by the court. The prison director reported to have received instructions from his superiors (and it is not clear from what level), not to allow anyone in without permission from the Ministry of Interior. As of mid-February, a few lawyers had been able to meet their clients, but only after approval given by Ministry of Interior. The Cambodian Bar association and Cambodian Defenders Project complained about the unlawful requirements made by the Ministry. The COHCHR on 14 February requested the urgent intervention from the Co-Minister of Interior to ensure that lawyers are given full access to their clients without the need for prior authorisation.  

Despite approval by the Phnom Penh court which was given in accordance with the prison procedures, relatives of suspected members of CFF still encountered difficulties in visiting their families in the Phnom Penh prison. The Ministry of Interior instructed the prison director to allow access only after approval by the anti-terrorism committee which was set up shortly after the 24 November incident. At the same time, the prison director had refused lawyers who were officially appointed by the Phnom Penh Court access to their clients accused of involvement with the CFF.  The Office also requested the Co-Minister to guarantee relatives’ access to the detainees, in accordance with prison procedures.  

Whereas six persons suspected of involvement with CFF were sent to military prison (and the three in Battambang kept at the military base), all others were brought before the civil court. After intervention by the Office with the military court, the six were transferred to the civil court.  

Many leaders of the attack, and recruiters for the CFF were Funcinpec members. It seemed that many of those who carried out the attack were not politically affiliated. Several of those who were arrested after the attack, and who did not participate in the attack, were also affiliated to Funcinpec. One person was known to be a former Son Sann Party member. All of those who were arrested from Pailin were former Khmer Rouge and current Sam Rainsy Party members or supporters. Many of those who ‘surrendered’ to the authorities were Funcinpec members or supporters. In Svay Rieng Province, some of them, used to be affiliated to Funcinpec but shifted allegiance to a party loyal to the CPP after the coup d’état in 1997. The Government stated that persons from the CPP had also been arrested. The COHCHR only received information about the surrender of two CPP members in Prey Veng, and the surrender of former high ranking CPP member and former Vice President of the National Assembly (’82-93), Nou Beng.  

Three round ups of large numbers of people in Kampong Som and Phnom Penh, related to the incident, led to the arrest of another approximately 400 persons, who were released after short periods of detention. In Kampong Som, authorities conducted late night arrests of young men, since many of those involved in the 24 November attack were young men. In Phnom Penh people were arrested in two instances, in the area around the railway station, wherefrom the 24 November attack started, because they had not registered their residency in the area with the local authorities.   

The Phnom Penh Municipal Court tried a second group of 28 suspects in October 2001. Many of the same concerns were reported for this second round of trial. Since most of the suspects had been arrested together with those tried in June, they had been in excessive pre-trial detention even longer than the first group. Difficulties for the lawyers and relatives to visit the suspects remained. When the suspects appeared before the court, it was clearly visible that several of them were not able to walk or stand up properly and suffered from beri beri. This is due to Vitamin B deficiency, and is due to the poor diet in the prisons. The fact that several of the suspects come from the provinces and therefore could not be frequently visited by relatives upon whom prisoners in general rely for additional food supplies could have caused the beri beri. However, it is likely that the fact that it was difficult for relatives to get access, as a result of the Ministry of Interior’s requirement to obtain prior approval could have contributed to prisoners contracting the disease.    

While sporadic arrests have been made since the beginning of the year 2001, September saw a third wave of arrests of CFF suspects, in particular in Battambang province. Arrests continued in October as well as November. As of 14 November, the Office had received reports that 62 newly arrested were in pre-trial detention in Phnom Penh, Battambang, Banteay Meanchey, Siem Reap and Kampong Cham provinces.

The first arrests were made in early September. The Office received credible information that the CFF had planned to carry out some attacks in September, around the Festival of the Dead (end September) and possibly the water Festival (November).

Most of the new arrests were carried out without warrants. At least nine of those arrested were prospective commune council candidates for Funcinpec or the Sam Rainsy party in Battambang province. Five of them were released and were still able to register as candidates. The Office tried to verify the basis of the arrests and detention of those who remained in prison as it was concerned that these persons might have been targeted because of their legal political activities. So far, the Office was reported that the arrests were based on a testimony of a CFF suspect, who used to be a Funcinpec member, but left the party disgruntled. Moreover, during house searches, which were conducted without warrants, explosives and some weapons were found. These suspects, however, came from former Khmer Rouge areas, where possession of arms remains common.  

In Battambang, the President of the Court refused to appoint lawyers for the suspects, claiming he first wanted to finish interrogations; relatives were also not allowed to visit the suspects in prison. After intervention by the Office, these issues were solved. In the context of April 2002 trial in Siem Reap, it is noted that COHCHR and NGOs were not allowed to enter Siem Reap provincial prison (prosecutor Siem Reap did not give approval) to interview the suspects preceding the trial.

At the end of September/beginning of October of 2001, the Ministry of Interior wrote to the Phnom Penh Court requesting them to get prior approval to meeting suspects in prison. The Prison Director had earlier told the court that security concerns prevented prison officials from transporting suspects to the Phnom Penh Court. The investigating judge refused to request permission from the Ministry. His staffs were able to conduct interrogations. He requested the Office not to raise this concern with the authorities.  

The patterns of the violation of pretrial rights are similar in most of the cases whether decided by the Phnom Penh Court or by the trial courts in the provinces.  

10. Rights at Trial  

The focus hereunder is on the rights at trial. In fairness to the CFF trials, one must say that the courts, which decided CFF cases, were the courts with all jurisdictional competence to hear these cases. There was no retroactive application of criminal laws and double jeopardy. Similarly, any suspect invoking the right to an interpreter and to translation was not noted. In the rest of the cases, generally speaking, the performance of the court in the context of the rights at trial was also very poor.  

In 11 June 2001, when the first trial of 32 persons suspected of involvement with the CFF had begun, it was not public.[16] Several media and representatives of human rights organisations were not allowed to observe the trial. The security guards outside the court asked for authorisation letters from the court in case of NGOs and the Ministry of Information in case of media persons. Lawyers too did not have enough sitting arrangements for them. A lawyer spoke to the court that the wife of his client (suspect) was not allowed to come and listen to the trial. Another lawyer complained to the trial judge that he was not allowed by the guards to come to the hearing room. The third lawyer then commented: “On behalf of the lawyers, [I protest that] this is not really a public hearing. The organisation of the trial is not according to the procedure. [I} requests for a public trial. This hearing is not held publicly.” Several other lawyers also boycotted the proceedings. Ang Eng Thong, President of the Cambodian Bar Association, and Soun Visal of the Cambodian Defenders Project were both denied access to the trial on the morning of June 11.

However, the trial judge did not delay the hearing, and appointed two new lawyers for the clients whose lawyers boycotted the courtroom. They defended the clients they had never met. The presence of a large number of security forces in the courtroom, creating an intimidating environment, threatened the right to a public trial.

During the trial of second group of 28 suspects in October-November 2001, the trial judge denied a request made by a lawyer of one of the suspects to summon one of the leaders of the CFF already convicted, and who had currently been in prison, to the court. Written evidence provided by this convict, stating that many of those on trial were his subordinates, was however used by the judge against the suspects, in spite of the latter’s’ consistent testimonies that they had been lured to Phnom Penh from the provinces, with promises of money. Most of them claimed not to know about the CFF, and thereby denying that they had any intention to conduct terrorism (one of the elements of the offence of terrorism). Most of them were however convicted of terrorism (as well as organized crime). Another request by a lawyer to summon two other witnesses was also denied by the judge during the trial.

Many of the suspects retracted confessions made in front of the investigating judge in the early stages of the pre-trial detention. They claimed that they feared reprisals if they would not answer consistently with the interrogation made by the Military Police, since after their appearance before the court, they were brought back to military police detention. The judge did not take this defense seriously. None of the military police interrogators were present during the trial, or were called so that they could be examined.  

One of the suspects claimed to have been recruited by the military intelligence in order to provide the government with information on the CFF. He had been provided with documents to that effect, but these were allegedly confiscated during arrest. They could not be found in the court’s file, which did include a letter from a senior officer of the military intelligence, Mr. Hour Sareth, denying the allegation. The trial judge summoned the commander to the court, but he failed to appear, according to the Ministry of Defense, Mr. Hour Sareth was on mission. Despite his failure to appear the judge upheld Mr. Hour Sareth’s argument and considered the claim by the suspects as untrue, and convicted him to 15 years.  

Despite the appearance that the reasoning on which the judgement was based was more substantial than during the first trial, serious concerns remained leading to the conclusion that the suspects did not get a fair trial. Interestingly, one of the suspects was convicted to 7 years imprisonment, despite guarantees of immunity from prosecution given to him, through Om Yentieng and Mul Roeup, head of the military intelligence by the Prime Minister. Several months after his return to Cambodia, and on the first date of the first trial he was arrested. One of the judges, who requested anonymity, reported that he had been called several times to one of the Ministries in order to discuss his decision concerning one of the suspects. He feared that he could be dismissed, possibly by the Supreme Council of Magistracy which has legal powers in this regard.  

The third round of CFF trial in Phnom Penh had some other stories. At the beginning of the trial of 23 suspects, the trial judge told the lawyers as well as suspects that they can request for additional lawyers if they think that there are conflicting interests, and the lawyers appointed at the moment cannot represent all these interests together. He also told that additional lawyers are ready if they are requested for. Nobody had any specific request on that point. Dy Borima and Puth Theavy, who were acting as the court appointed lawyers for the 2+18 accused persons being prosecuted, also did not comment on that. The judge also briefed the accused persons at the beginning of the trial on all fair trial issues that were brought to the attention of him in COHCHR’s meeting with him on February 15, 2002. The right to consult lawyer and get clarified from the judge if the suspects did not understand questions posed to them was also included.  

The court appointed lawyers in the third round of cases were not defending the interests of their clients to a desirable level. The two lawyers representing 20 (i.e., 2 + 18) clients had difficulties to meaningfully prepare the defence of their clients not only because of the gravity of charge against them, but also due to the possibility of conflict of interest between the accused persons, and impossibility of defending every suspect equally and meaningfully. It was also not possible to understand what they had in mind when, in addition to the questions asked by the prosecutor, they were asking further questions to the suspects, making their position more complicated. One of the lawyers was given a hint, for example, during the hearing of Seang Hay, that faxed documents do not prove anything until the prosecution proves that Seang Hay acted on the advice given by the sender of the fax, or responded it in appropriate ways. There was no comment on that from the defence lawyers. There were so far no comments on the paucity of evidence.  

Some irrelevant questions were also asked by the Prosecutor and the trial judge. [This is true of all CFF trials held throughout the country]. The impartiality of the trial judge in conducting the trial might be questioned. Most of the questions that should have been asked by the Prosecutor were asked by the trial judge himself. The courtroom appeared more as a room of the investigating judge than a trial room because most of the time was spent on further interrogation, than asking the prosecutor and defence lawyers to take up or defend their case. The prosecutor did not call any witness to testify; his whole approach was to focus on the confessionary statements made by the suspects in the police or prosecution office.  

The court seemed keen on using the statement given by one suspect against another. There is no law in Cambodia which requires that the statement of a co-accused can only be taken as evidence against another accused on oath and subject to the process of cross examination at the trial. The statements of some convicts, serving their prison sentence following the CFF trials held last year, were also being used against some of the present suspects. But these convicts were not called on to give their testimony in the open court, thus depriving the attending lawyers an opportunity to examine or cross-examine their implicating statements. Apparently, the prosecution was consolidating its position on the statements of the co-accused and former CFF convicts in the absence of other substantially incriminating evidence. From the statements given by the suspects to the court, and further clarifications, it appears that some of them may be technically involved with CFF without knowing much about the organisation and its purpose. In this background, the challenge before the court was to find the required intent under both these provisions, and that seemingly was not proved.   

On 5 April 2002, three more CFF suspects were sentenced by Siem Reap Provincial Court. One of the three suspects was convicted to 10 years imprisonment, but the sentences of two others were suspended. Again, the convictions were not based on substantive evidence, and the trial suffered from several procedural irregularities. One of the suspects was not provided with a defense lawyer. Sequence of trial events was as such performed reasonably well as in the case of Phnom Penh trials (opening of the trial, accused questioned as to background, prosecutor reads charges, questioning by judge, reply of accused, questioning by lawyers, reply of accused, pleas of lawyers, closing arguments, last reply of accused, judgments including sentences). But the judge did not keep off from asking some leading questions. He seemed to act as a prosecutor at times. Both the judge and prosecutor stressed the opportunity for the accused to prove their innocence, rather than explaining them about their rights (including the right to silence). Defense lawyers did not object to the continuance of the trial without the presence of witnesses (whose statements were read aloud by the clerk), to leading questions from the judge, and to not inform the suspects of their rights and asking them to come up with evidence about their innocence. Note that the reference here is to the cases of Lek Bunnhean, May Srei and Meas Savoeun, which have already been described above as sample cases.  

The judgements of CFF cases generally don’t focus on the elements of crime that we discussed above in relation to the fact and evidences presented at the court. Conclusions are made without referring to the arguments made by lawyers. Very limited references are given on the statement of the suspect at the open court. They all show that the judgment that these judges have rendered are inadequate. A more objective assessment of the rights at trial may be made with specific reference to the following standard principles:  

·         Presence of the Accused  

All the accused were present at the trial with the exception of those who apparently had not been traced. The people like Chhun Yaseth and Thong Samean who are said to be the leaders of the CFF were convicted in absentia. The lack of presence of such important figures of CFF in the trial means that even those who were present were not sufficiently understood in the absence of the statement of the prime suspects. There were other problems also. In the second and third round of cases in Phnom Penh, for example, the court appointed lawyers had not argued anything in favour of the absentee suspects. Trial in absentia, though acceptable in exceptional cases, is a current feature of the Cambodian justice system. At any rate the rights of the accused will still be protected under Cambodian law since an accused who has been tried in absentia can lodge an opposition to the judgement.[17]   

·         Equality of Arms  

All the CFF lawyers did have access to the files containing the evidence relied on by the prosecution. Since many of the court appointed lawyers expected the copy of all these files supplied to them free of cost, but that was not done. In the third round of cases, at the Phnom Penh Court, for example, the case files supplied to the lawyers did not contain statements of the accused persons at the police station. To maintain equality of arms a fair balance is expected to struck between the parties in the case. The disclosure should cover all materials for or against the accused and it should include the relevant testimony of the accused at the police custody.

During the second round of CFF cases at Phnom Penh, for example, at no time did the prosecution show any willingness to assist in providing the necessary information to one accused, Tep Simoly, in respect of a key witness, Hour Sareth, who was a senior military intelligence officer. The accused alleged that Hour Sareth had asked him to infiltrate the CFF organisation and act as a spy for the State. Though the judge did request that the witness should be present, the witness never turned up and the only official reason was that he was on mission. The judge did not pursue the matter further. The lawyer of the accused insisted on the presence of that witness but her efforts fell on deaf ears. The prosecutor simply submitted at the end of the case that Hour Sareth had denied the version of the accused. A letter allegedly written by Hour Sareth and remitted to the accused was never produced; the prosecution remaining content in saying that there never was such a letter as Hour Sareth had no right to issue it. In the absence of Hour Sareth this important fact could not be verified. It is a matter of grave concern that, on the state of the evidence and, given that this witness did not attend court, accused Tep Simoly was convicted and sentenced to 15 years imprisonment.

Impartiality and Independence

Under Cambodian law the trial judge has the right to question the accused. This should obviously be done in the strict respect of the rights of the accused, more particularly his right to silence and self-incrimination. The questioning of the accused in all CFF trials seems to have been conducted with a view to compel them to confess to the alleged offenses. In many cases in Phnom Penh or the outside provincial courts, the accused persons were confronted with the list of the names of the alleged CFF activists and the impression was that, since their names appeared there, they could have no plausible explanation to give by way of a defence. The defence of the accused was that they had been tricked to come to Phnom Penh to get a job and that they were forced to carry rifle and follow the group. This defense was simply dismissed as ridiculous during the questioning. A glimpse of the cases that have been reported above as sample cases explain the realities.

In the second round of cases in Phnom Penh, at one stage in the course of trial one lawyer requested that three witnesses be summoned to court for questioning. The judge simply ignored this request and the lawyer did not pursue the matter further. As pointed out above, one important witness who was a high ranking military intelligence officer did not attend court in spite of a request by the judge that he should attend. In fact, that witness, Hour Sareth could have helped in determining whether the defence of the accused that he was an under cover agent was genuine or not. The judge was not unduly concerned by this absence and the explanation of that accused was simply rejected.

Presumption of Innocence

The overall impression during all CFF trials in Phnom Penh and outside was that this principle was not really respected. In fact the whole atmosphere in the course of the trial, with police officers in uniform filming the proceedings from the bench and the picture of each accused being taken during interrogation, was rather intimidating. The judge, at times, and the prosecutor, all through the trial, in the course of his interrogation of the accused, visibly treated them as guilty persons.

On the first day of the second round of trial at Phnom Penh, the accused were brought to court in handcuffs. They were removed subsequently and were not used on the following days.  

During the third round of trial in Phnom Penh, the trial judge shouted at the suspects at times. He even threatened one accused not to be ‘stubborn’ and accept the guilt. The observers expected the trial judge to ask the prosecutor to prove his charge, or request the court to drop it in the absence of incriminating evidence. He never did it. An aggressive course of interrogation was a challenge to the guarantee of the presumption of innocence.

Right to be informed of the charge

The charges were read out to the accused. All of them presumably understood what they had to face. But it cannot be assumed that they understood the legal characterisation of the acts allegedly committed by them. In fact, the elements of the offences of terrorism and taking part in organised crime are quite complex for a layman or even for a lawyer to understand. All the accused simply stated that they were not guilty of the offences. One accused, during the second round of trial at Phnom Penh, had some difficulty to understand what the charge was and he kept saying that he did not understand why he was in court as he had done nothing wrong.

Times and facilities for the preparation of defense

All the accused, except those tried in absentia, were represented by lawyers during the first and second round of trials at Phnom Penh. During the second round of trial at Phnom Penh, a lawyer was appointed during the trial in the case of those accused who were not represented or who wanted a change of lawyers. None of the lawyers who were so appointed made any request to be given some time to talk to their respective clients. Since the main line of defence of most of the accused was that they had been forced to join the CFF group and that they had been beaten up by the police to confess, it would have been better for the lawyers to ask for some time to prepare the defence on those lines. The judge also did not make any observation on this. The interesting point is whether the lawyer would have been granted an adjournment. In fairness to the judge, however, it must be said that he really acceded to the requests of the lawyers to allow them to communicate with their clients whenever required. On some occasions, the lawyers were even allowed to talk to their clients before answering questions from the bench. But during the third round of trial in Phnom Penh, and many other trials in the provinces, there were neither times nor facilities for the preparation of defense.  

Trial delay

The accused in the CFF case of the first and second round were arrested in November 2000 and have been tried almost a year after. Article 21(1) of UNTAC Law provides that a person whether or not in detention must be judged not later than six months after arrest. Lawyers always invoke this article to secure the release of those persons who are tried more than six months following their arrest. Article 22 of UNTAC Law provides that where there has been no compliance in the procedure set out in articles 10 to 21, and this includes the right to be tried within six months from the date of arrest, the person must be released if the non compliance has seriously interfered with the rights of the defence. That did not happen.

Legal representation

As already stated all the accused were represented during the first and second round of trials in Phnom Penh. Some of the accused were represented by two or more lawyers who took turn in questioning the accused. At times, it was apparent that this strategy confused the accused. When the same questions were put by the different lawyers the situation became worse. It is not clear whether these lawyers had had time to meet and discuss among themselves before hand. The lawyers who were appointed in court had no time to consult the accused in such a situation.

The main line of the defence of the accused was that they were tricked into coming to Phnom Penh to get a job and that they had been acting under duress if at all they participated in the armed group. Hardly any questioning was done on this aspect except for statements made by the accused parties. None of the police officers present was questioned on this issue nor did the lawyers make any request that this be done. Yet this was an important line of defence. In the context of third round of trial in Phnom Penh , one should also quickly add that the court appointed only two lawyers to represent 20 suspects. There were apparent conflict of interest between these suspects, and the lawyers could not plead the defense of all these suspects reasonably. The role of the lawyers in relation to these 20 suspects was in fact largely ceremonial. The office had cautioned the trial judge about this fact some days before the trial. Two accused in Battambang were not represented by any defense lawyers.

The submissions made by the lawyers at the end covered mostly the law relating to the rights of the accused and the articles of the law creating the offences. There was no in-depth analysis of the offences and the evidence or lack of evidence in relation to each element of the offences.

Many of the lawyers turned up late in court and some of them just left because the questioning of their clients was over. One lawyer who was representing one accused left and disappeared after the questioning of his client was over and did not attend the court to make his submissions at the end. It is believed he is a CDP lawyer. The judge stated he would accept written submissions from him. 

In general the lawyers both in Phnom Penh and provinces were given full latitude to defend the interest of their clients and the court cannot be blamed for their shortcomings. This is a matter that should be taken with the Cambodian Bar Association so that remedial action is taken to improve the quality of the profession. There is an emerging jurisprudence in human rights on incompetence of lawyers and its effect on the rights of an accused and the lawyers need to be aware of this.

The right to call and examine witnesses

This right was impaired in most of the cases. Many necessary witnesses were not called to the court. During the third round of trial, what the trial judge did was to pit one suspect against another, or use the statement of the already convicted CFF prisoner to establish the guilt of the present suspect. As mentioned already, during the second round of trial, a key witness for the prosecution, who could have shed light on the defence of one accused, Tep Simoly, was never present in court. It is clear that this particular accused had suffered an immense prejudice in the conduct of his defence and of his basic rights as an accused. None of the police officers who recorded the alleged confessions of the accused was present. A request by a lawyer to have three police witnesses present had no follow up. It is surprising that the lawyers themselves did not insist strongly enough on the presence of these witnesses or ask for a clear ruling from the court on this aspect. An Mao is one of the accused who has been convicted in the first CFF trial. A list given under his hands and containing the photographs and names of the accused was produced in court. An Mao was never called to be examined. His absence has deprived the accused of a legitimate opportunity to question An Mao on the circumstances in which the photographs found their way on a list already prepared by him.

Right against self-incrimination

The main evidence against the accused was their confession. Most of the accused stated that the police had subjected them to physical violence. When they were asked to explain why they confessed before the investigating judge in presence of their respective lawyer, they explained that they had no choice. They feared that they would be beaten up again by the police on their return to their place of detention. This line of defence went almost unnoticed. None of the police officers who had recorded the alleged confessions were present in court. The lawyers who represented the accused did not take any steps to secure their presence in court. Whenever there was an allegation of ill treatment by the accused, only one police officer who was present at the trial, stood up to deny the allegation by reading some notes. In addition the questioning by the prosecutor was to get confirmation of the confessions. It is worth noting that the judge stated in his judgement that he was not prepared on the confessions of eighteen of the accused and acted on what he believed was sufficient evidence to convict for the offence of terrorism.

11.  Positive Indications

This largely negative analysis of the report must be taken by the readers with some caution. One can dispute whether these CFF cases can speak for the hundreds of ordinary civil or criminal cases being investigated, heard and decided by Cambodian courts on almost daily basis. For a variety of reasons elaborated at the beginning, the CFF issue remains different, and the likelihood of outside influence in this case from the beginning was greater than any other cases decided in Cambodia after the promulgation of the new Constitution in 1993. One has to understand the fact of involvement of military in the investigation phase in the beginning, and also the possibility of willingness of the government to consolidate its position by using the CFF banner against its opponents. The pressure that the court might have borne on this case might not be the same when it is trying another ordinary case of the day, where nobody is personally involved except the contesting clients.  

Although violations of pretrial rights were massively reported, the authorities expressed that they know the right to liberty, and that they are committed to the procedures of arrest and detention. Once the suspects were taken to the prison, their rights to have the information about the reasons of arrest or detention were recognised in most of the cases. In most of the cases, lawyers were allowed to visit the prisons, if they wanted to consult their clients. Most of the clients were represented by lawyers, although in some cases, the quality of representation was very nominal. Most of the suspects were not tortured once they were taken to the prison.    

The observation of CFF trials gives some other indications also. Except the first day of first round of cases at Phnom Penh, all CFF trials were held in public, notwithstanding the presence of security guards outside the court. Except this first day, everybody could have access to the court without the need to have any prior authorization. Even relatives of the prisoners were granted free access to the court. In addition, at Phnom Penh, a loudspeaker was placed outside the hearing room to enable people to follow the trial in all CFF cases in all these three round of trials. 

Moreover, in all CFF cases, judges generally informed the accused person about their rights (including right to disqualify the judge. If the course of aggressive questioning is to be ignored, the trial judge had been able to show respectful attitude during most of the trial to all participants, including accused persons and lawyers. They were in control of the hearing. In most of the cases, they gave ample opportunity to lawyers to speak and to consult with their clients. In many cases, lawyers had good arguments; they were seem to have questioned about independence of the court, arrest without warrant, excessive pretrial detention, and hindrance imposed on the way of lawyers access to their clients. Ample references to the law and even to international treaties were noted at times, for example, during the second round of CFF hearing in Phnom Penh. Many of the lawyers submitted their briefs to the trial judge after their conclusive arguments were done. This is indeed a good trend. 

In spite of the many shortcomings highlighted above, some accused persons were acquitted and in the case of some, their confessions were not acted upon. If these shortcomings are current features of criminal trials in the Cambodian criminal justice system, it is high time that a rational strategy be developed to counteract these failings. Trial judges also showed some sense of sentencing. For example, during the second round of cases, with regard to the sentences meted out to the accused, on the charge of terrorism which carries a penalty of between ten to twenty years[18] six accused were sentenced to ten years, four to seven years and eight to five years imprisonment. On the charge of organized crime which carries a punishment of between three to fifteen years[19], one accused was sentenced to seven years, three to fifteen years, one to ten years, two to five years and one to three years. However, to all intents and purposes, terrorism appears to be a more serious offence than organized crime. This fact is reflected in the sentences.

Conclusions

In general, the application of fair trial standards with specific reference to CFF cases shows that Cambodia ’s judicial system remains weak in several senses and has to go long way into the future to make it strong.

If these CFF cases are taken as test cases, we find both the pretrial rights and the rights at trial still not adequately institutionalized in Cambodia . These cases are illustrative of the violation of the protection regarding arrest, detention and the presumption of release pending trial. Some cases of torture were noted. Many of the suspects were not informed immediately of the reasons of arrest or detention. Detainees had restricted access to the outside world. Right to communicate and receive visits was also restrictive. Many of these suspects were not promptly brought before the court. In many cases, the right to trial within the lawful period was not respected. In several cases, the right to defence was not adequately guaranteed. In fact, the court appointed lawyers were not serving the suspects as expected of legal professionals. A few of suspects did not have lawyers despite the right to have a legal right to that effect. Bail did not become an important concern for judges who investigated the case. Confessions were taken as principal evidence.    

The right to a fair hearing lies at the heart of the concept of fair trial. It is specified by a number of concrete rights, such as the right to be presumed innocent, the right to be tried without undue delay, the right to prepare a defence, and so on. In none of the trials the CFF judges spoke about exclusion of evidence elicited as a result of torture or other compulsion. The right to be tried without undue delay was affected in more than half of CFF cases. The right to call and examine witnesses was not complied in some cases. The right to a public judgement was recognized; but the judgements were not adequately reasoned. Even the major arguments of the attending lawyers were not responded in the judgement. The cases we monitored placed several question marks on the realization of these rights. None of the trial judges thought about exclusion of evidence elicited as a result of torture or other compulsion. They show that the justice system has to go far ahead in getting these rights rooted in the judicial consciousness. They also show that the court system to grow stronger to deal with the pressures, and other challenges before it.

---

[1] A press release of CFF dated 27 April 1999 reiterates that CFF is a resistant group and was born as a response to unjust situations emerging in Cambodia, especially after March 1997 when a peaceful demonstration in front of the National Assembly had been gunned down by the government forces. The organisation charges the government of corruption, human rights violations, torture, execution, grenade attack on innocent people, electoral frauds, and immunity to the former Khmer Rouge leaders who were responsible for the genocide during 1975-79. It has a plan to continue struggle until Cambodia becomes a state of law, and the government is from the people, by the people and for the people. As such, it defines itself as an anti-government, but not a terrorist organisation. The organisation is said to be registered in the United States as a non-profit organisation and is headquartered in Long Beach, CA 90804 USA.  The police investigation shows that Chhun Yaseth, an American Cambodian, is the top leader of the group since 11 October 1998.

[2] The list of CFF prisoners as at April 2002 has been attached herewith.

[3] Art 1, Law on Punishment of the Acts of Terrorism 1992

[4] Art 2, Ibid

[5] Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period (United Nations Transitional Authority for Cambodia, 1992)

[6] Art 36, UNTAC Law

[7] Art 69 states: “Whoever has provided the means by which an offence is committed, ordered that the offence be committed, or facilitates commission of the offence shall be considered an accomplice and punished with the same punishment applicable to the principal offender.”

[8] Srun Vong Vannak, a member of the opposition Khmer Nation Party (KNP) and the party’s chief of security, was sentenced to 13 years in jail – a decision that took the judge only 10 minutes to reach.  

[9] Pretrial detention of the accused is not to exceed 4 months. It can be extended by 2 months for the purpose of investigation, but only on the order of a judge who gives reasons for extension. Article 14 (4), UNTAC Law.

[10] Article 22, UNTAC Law

[11] Art 38, The Constitution of the Kingdom of Cambodia (1993)

[12] Art 107 of SOC Law of Criminal Procedure provides that if the charge referred to the court is not sufficiently clear, the court may refer the charge back to the prosecutor or investigating judge for further investigation.

[13] See the Attachment – 1 of this Report

[14] If the charge referred to the court is not sufficiently clear, the court may refer the charge back to the prosecutor or investigating judge for further investigation. Art 107, SOC Law

[15] It is said to be another anti-government group and is based in the province of Kratie, and is reportedly led by two Cambodian-French, Ith Suong (former CPP official) and Nguon Soeur (former Funcinpec, who shifted allegiance to the  CPP in 1998).

[16] Arts 128-29 of  SOC Law on Criminal Procedure provides for public hearing  except when it is deemed to be dangerous to public order.

[17] Art 115, SOC Law

[18] Arts 1 & 2, Law on Terrorism

[19] Art 36, UNTAC Law

 

Over the last one and half year, many trial courts of Cambodia heard and decided a number of high profile criminal cases involving an allegedly US based Cambodian organisation called Cambodian Freedom Fighters (CFF).[1] These cases caught the attention of many human rights activists and organizations for a variety of reasons.  

Firstly, these cases concerned people who had a proclaimed political mission and challenged the legitimate or established political authority of Cambodia to achieve their mission by violent means, and whose organisation had a foreign origin. Secondly, the initial response of the Royal Government of Cambodia to their operations had also been heavy from the very beginning giving a strong image that the human rights concerns of these activists were under intense threat. As the number of those apprehended and arrested people grew, there were further doubts on the integrity of the law enforcement machinery, and concerns were expressed from different quarters that the Royal Government was using the CFF incidents also to arrest and prosecute its political opponents, other than the CFF. Thirdly, the courts which heard and decided these high profile criminal cases also seemed to be under intense pressure of the government which generally manifested a poor record of accomplishment in honoring judicial independence.  

The Cambodia Office of the High Commissioner for Human Rights (COHCHR) monitored most of these trials at the trial courts of Phnom Penh and other different provinces of Cambodia. Taking these cases as test cases, the objectives of monitoring these trials were – to monitor the fair trial standards in action in Cambodia, estimate the accomplishments of Cambodian judiciary in this matter, study the loopholes in the justice process, and present them to the actors in Cambodia’s judicial reform process. This report gives a summary account of the trial observation and monitoring exercises in general terms and our analysis and general conclusion about the issues before hand.  

First, the report gives a synopsis of imputed facts. Then it deals with charges against the accused persons, available evidences against them, the necessary elements of crime to be established, and the international fair trial standards, which are in principle already internalized by the Constitution and other laws. A number of sample cases involving a variety of suspects with different age and background has then been discussed which explain the realities of the situation in the background of the charges made against these suspects.[2] The stage then is ready for the detailed analysis of the pretrial rights and the rights at trial. The report concludes that, while Cambodia has improved its judicial procedures in very many senses, it does not score much in the application of fair trial standards. There are still many shortcomings in the justice process both in the application of pretrial rights and the rights at trial. These shortcomings are not only infrastrucural but attitudinal also.   

1.    Imputed Facts  

On the night of 23-24 November 2000, some 50-strong force of alleged anti-government insurgents attacked several government buildings housing Council of Ministers, Ministry of Defence and Military Base E70 using B-40 rockets, grenades and AK-47s leaving at least four dead and 18 police officers injured. One civilian was reportedly killed in heavy gunfire. Municipal officials identified the attackers as members of CFF which, they claimed, launched the attack to undermine the government’s hold on security in Phnom Penh. Chun Yasith, 43, a Cambodian American living in California, was said to have made the entire plan for the attack including determination of the main targets to be destroyed. Government arrested an alleged ringleader, Richard Kiri Kim, a Cambodian-American member of CFF who freely admitted directing the raid. The anti-communist organisation Cambodian Freedom Fighters admitted plans to overthrow the government. The CFF press release of 24 November, which the UNCOHCHR received only a few days later, claimed that the purpose for the attack were threefold: firstly to test the strength of the Cambodian government, to stop the planned visit by the Vietnamese President and to stop the ‘Vietnamisation’ of Cambodian society.  

In 2001 three separate incidents took place: bombings at the Vietnamese Embassy on April 13, blast outside the Ministry of Foreign Affairs on July 5, and the attack on Funcinpec Party Headquarters August 8.  Hand grenades were used on these attacks, one person was injured in the attack at Funcinpec headquarters, but there were no casualties anywhere. All these incidents were attributed to CFF fighters. Apart from them, various other activities of the suspected CFF members or activists were also made the subject of investigation and prosecutions.  

2.    Charges  

There were generally two charges against the accused in all CFF cases namely the charge of terrorism and the charge of participation in an illegal armed group.  

The Law on Punishment of the Acts of Terrorism 1992 defines acts of terrorism as “those acts of violence which are committed by one sole individual or one or many groups of persons which create panic amongst the mass of the people aiming at causing strong turmoil to the public order and security and affect the political stability.”[3] The Law contemplates two types of punishment for the acts of terrorism. Firstly, offences like kidnapping or detaining people with a view to subversion, extortion of money, revenge, taking of hostage for selling, and other acts of terrorism are subjected to punishment to imprisonment from ten to twenty years. In case if such kidnapping or illegal detention of the person(s) or such act of terrorism was made on a minor person or which caused any victim to death, such offender shall be subjected to life imprisonment regardless of any attenuating circumstances.[4] Secondly, any one who attempts to kill or kills people with prepared intention in the purpose of conducting terrorism shall be punished to life imprisonment regardless of any attenuating circumstances.  

The charge of illegal participation in a group is based on Article 36 of UNTAC Law.[5] This Article states that “any individual, who has taken part in a formal or informal association set up for the purpose of planning one or more crimes or misdemeanors against person or property, if specific acts of preparation of these offenses have taken place, shall be liable to a term of imprisonment from three to fifteen years.”[6]  

In a few cases, the charge of complicity under Article 69 of UNTAC Law [7] was also made. Similarly, illegal possession of weapons was also prosecuted. But the basic issues in all these cases were terrorism and organized crime.  

3.    Trial  

In June 2001, the first trial of 32 persons suspected of involvement with the CFF and the 23-24 November 2000 attack, was held at Phnom Penh. Two persons were acquitted, while others were sentenced to prison terms ranging from 3 years to life imprisonment for conspiring terrorism and/or organized crime. Chhun Yasith, 43, the leader and Thoang Samean, 50, were tried and convicted in absentia. Most of the convicts appealed against the conviction.  

The Phnom Penh Municipal Court tried a second group of 28 CFF suspects in October and November 2001. The trial was held, as before, at the Supreme Court building due to the large number of suspects and the limited infrastructural capacity of the Phnom Penh Municipal court. Two persons were acquitted and others were convicted to imprisonment ranging from 3 to 15 years. All convicted prisoners moved appeal to the Court of Appeal through the Phnom Penh Municipal Court.   

The third round of trial of 23 accused persons, three of which were tried in absentia, was held in February 2002. They were said to be taking part or involved with the bombings at the Vietnamese Embassy, Funcinpec Party Headquarters and the blast outside the Ministry of Foreign Affairs. The trial was held at Phnom Penh Court building itself. The court convicted 19 suspects including one who was tried in absentia. It ordered reinvestigation of three of the suspects including two of the suspects who were tried in absentia as the trial judge thought that the investigations of the charge against them were not complete. Among those who were convicted, one person was subjected to life imprisonment, four persons were sentenced to a term of 20 years, and the rest were sentenced for terms, which ranged from 8 years to 15 years. Only one of the three suspects whose cases were subjected to reinvestigation was released on finding innocent.    

Trials were also held in Battambang, Siem Reap, Banteay Meanchey and Kampong Cham provincial courts of smaller number of suspects locally arrested. Among the trials held outside Phnom Penh, the Battambang trial was the biggest one involving 18 suspects, none of which were found innocent. By the end of April 2002, the number of those who were prosecuted crossed 100.  

4.    Evidences  

Various types of objects were produced at the court as evidences by the prosecutor to prove the charge. At the first round of trial, they included 43 AK 47 rifles with 740 bullets, 1 B40 Barrel, 20 hand grenades, 10 AK magazines, 1 Compaq Computer, and other materials like hand phones, CFF flags, badges, medals, CFF documents and IDs etc. Evidence produced in the court during the second and third round of trial in Phnom Penh included a big CFF flag (which bears on its surface a number of signatures of different unidentified persons), some small table flags, CFF membership cards, one or two military (camouflage) uniform/s and some books/diaries.  

The sort of the evidence presented during all the CFF trials held in the provincial courts was not different in any sense. All these materials were presented during the hearing. There was a general problem of relating these objects with the accused and how they proved the suspects gui1lty. In some cases, there was no linking of these evidences with the involvement of the suspects in the case.  The prosecutor was relying not only on the evidential value of various pieces of evidence, like ID’s, pictures seized from CFF leaders and documents seized from the Computer of a CFF leader, but also on written statements given by the suspects before the police, prosecutor or investigating judge. Most of these written statements were not confirmed during the trial. A general type of inadequacy was thus seen in proving the elements of crime as suggested above.  

5.    Elements of Crime to be established  

The charge of terrorism will be reasonably proved when all the following elements are present and it is proved that the accused are involved in all the elements which are following:  

·       There must be evidence to show that the accused attempted to kill people or did in fact kill people. It must be proved that the accused did an act or participated in an act that led to the death of one or more persons. It must also be proved that the accused had the intention to kill. An attempt exists when the accused has committed acts which go beyond preparatory acts with the intent of committing an offence but fails in his venture owing to circumstances beyond his control in that he did not himself put a stop to his venture.  

·        The accused must have had the intention and purpose of conducting terrorism. It is not sufficient for the accused to have attempted to kill people or actually kill people. It must also be shown that the accused did the killing or attempted to kill with the intention and purpose of conducting terrorism. In order to find out what is terrorism Article 1 must be referred to.  

·    Terrorism consists of acts of violence. It must be proved that the accused committed in that they participated actively in the commission of these acts of violence. What amounts to acts of violence is for the judge to decide on the facts of the case.  

·      Acts of violence consists in creating panic amongst the mass of the people and are aimed at causing strong turmoil to public order and security and affect political stability. Once the judge is satisfied that the acts of violence were perpetrated he must go on and find out whether from the evidence it can be said conclusively that these acts of violence created panic amongst the mass of the people and aimed at causing strong turmoil to public order and security and affected the political stability of the country.  

·        All these elements of the offence must carefully be analysed and the evidence in support of each of these elements must be determined. If there is no evidence to prove one or more of these elements then the accused must be acquitted.  

Apart from them, there are other issues regarding the offence of “organised crime.” To confirm the charge of organised crime, the prosecution must be able to prove that the CFF is an ‘association’ as mentioned in Art 36 of UNTAC Law. In other words, it must prove that the intention was to topple the government by using violence. If CFF is not an ‘association’ as the said provision contemplates, can the group of people who took part in the (preparation of) attacks be considered as an (informal) association as mentioned in Article 36? Is membership of CFF sufficient for a conviction? Article 36 mentions ‘taking part’ in an association which requires more than just being a member. What if the perceived ‘members’ were not aware that they were members of CFF or did not know about the purpose of this association? Similarly, what is the meaning of ‘taking part’ in the offence? Does for example transportation of radio-communications or providing a meeting place for the benefit of CFF/the above (informal) association, fit in this definition? No, unless there is a knowledge of the criminal intention of CFF/above (informal) association. The same question is for ‘complicity’ to acts of terrorism.  

It is important at this stage to emphasize these elements because although, so called leaders of CFF quickly claimed responsibility for leading the attack, but it was still suggested that the attack was politically framed up. Undoubtedly, many people suspected that the government set up one of the movements and controlled the other through the infiltration of military intelligence. Insecurity situations have been created in the past to divert attention of the people, for instance, the arrest of Srun Vong Vannak by linking him to the murder of his brother in law, Kov Samuth, March 1997 grenade attack in front of the National Assembly, the July 1997 coup, grenade attack in September 1998 at his Phnom Penh residence which was used as an excuse to crackdown opposition demonstration.[8] So the argument goes that the incidents were used as a pretext to hunt down opposition activists and politicians, Funcinpec-affiliated generals, and former Khmer Rouge commanders. General Mul Roeup was responsible for putting up two lists of more than 200 suspected terrorists linking to CFF prior to the incident.   

It is thus not out of place to quote the following paragraph from the judgement of the first round of CFF cases:  

Any accused, whose name and designation are stated in the document on the organisational structure, and which bears thumbprint and acknowledgement of the mastermind, Kim Kiri Richard, should be considered by the court for imposing punishment in accordance with the law. However, those accused who were arrested by the competent authorities but whose name and designation are not available in the document on the organisational structure of the mastermind, Richard Kim Kiri, should be considered for punishment according to the law only if their involvement is supported by strongly compelling and consistent evidence which prove that they certainly have participated in the offence.   

6.    Fair Trial Standards  

The Constitution and several other laws of Cambodia guarantee all accused with both pretrial rights and rights at trial in order to accomplish what is know as fair trial. Implicit in the concept of a fair trial is the independent judiciary and the principle of equality of arms where the defence and prosecution are given equal status, equal rights and equal opportunities to present their case. The following standards are suggested as compulsory requirement in Cambodia:  

·         Pretrial rights include the right against illegal arrest or detention, the rights of the people in custody to information, the right to legal counsel before trial, the right of detainees to have access to the outside world, the right to be brought promptly before a judge or other judicial officer, the right to challenge the lawfulness of detention; the right to trial within a reasonable time or to release from detention; the right to adequate time and facilities to prepare a defence; rights during interrogation; and the right to human conditions of detention and freedom from torture.  

·         Rights at trial are the right to equality before the law and courts; the right to trial by a competent, independent and impartial tribunal established by law; the right to a fair hearing; the right to a public hearing; the presumption of innocence; the right not to be compelled to testify or confess guilt; exclusion of evidence elicited as a result of torture or other compulsion; the prohibition of retroactive application of criminal laws and double jeopardy; the right to be tried without undue delay; the right to defend oneself or through counsel; the right to be present at trial and appeal; the right to call and examine witnesses; the right to an interpreter and to translation; the right to a public judgement, ands the right to appeal.  

·         It is important to note that the Constitution assigns the Kingdom of Cambodia to recognise and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the Covenants and Conventions related to human rights, women’s and children’s rights. Needless to say, this provision supplements the Cambodian legal regime with existing international human rights standards of fair trial as well.  

7.    Some Instances of Hearing  

By April 2002 more than one hundred alleged CFF suspects were already tried by different trial courts of Cambodia. Although the trials took place in different courts, the cases often had common patterns. There was limited focus on most critical elements of criminal liability – i. e., an act was not wrongful unless accompanied by a wrongful state of mind, or as a general proposition, one cannot be convicted for mere criminal thoughts; one must normally do something towards bringing those thoughts to fruition. Some of the sample cases are discussed here for the purpose of this report.  

In June, the first trial of 32 persons suspected of involvement with the CFF was held. The first accused who was brought before the court was Richard Kiri Kim, 37, the General Secretary of CFF. As soon as the trial judge read the charge against him, Richard complained that the court was not independent, and that he be released immediately because he was detained in excess of six months,[9] implying that failure to comply with this rule enabled the accused to apply for immediate release.[10]The trial judge rejected these contentions on the ground that it was for the investigating judge to release the prisoner on this ground. He asked instead: “Please tell us when did you create this armed gang, and what was your purpose?” In the course of proceedings, he replied: “… [M]y group is a political group, which held meetings along the border and in the Long Beach, California in 1999. These meetings were legal, and held with permission from the USA  … This is a political organisation, a legal one, not an armed group …” Richard said he was in USA during 1990-93 as an engineer, and after that for about eight years, he worked with an NGO in Cambodia, built schools and helped children. In other words, he was neither a terrorist nor he had any terrorist background.  

Richard said he was arrested without warrant. He referred that he had not to that day seen the judge who had investigated his case: “How can my lawyer reach the investigating judge? Since I have been detained, I have never seen, heard or met the investigating judge. … How can he make a decision when he has never contacted me up to this point?” There was no comment on that by the trial judge. Richard was asked about the information on the Computer confiscated from his house. Some evidence presented at the court – i. e. ‘badges’ of rank and file, brochure (pamphlets/booklets), organisation chart, etc – which the judiciary police said were printed out from the same Computer. His answer was that he cannot speak anything on this matter unless he has been allowed to see and make sure if it has the same information, or that they have been changed. The judge said: “You have no right to see the Computer.” Most of the questions which the trial judge and attending prosecutor posed at him during the hearing were directed at securing more information about CFF and its departments, military profile, hierarchy, and similar other details. At one stage the judge said: “Stop talking about evidence. Turn to terrorism of 24 November. I ask you what was your role on 24^th.” He said he was asked by Chhun Yaseth, the Commander, to be the commander for the operation just two hours before, for which he was not prepared. But later he conceded to take the charge. When the prosecutor asked if the weapons shown on the exhibit table belonged to the CFF, he said he did not know about the weapons as the responsibility for military operation was vested in Commander in Chief and other commanders.   

The newly appointed lawyer for the suspects, Puth Theavy, wanted to know the names of other six persons in the central committee of CFF apart from Chhun Yaseth and Thong Samean. Richard was upset with this question of the defence lawyer appointed by the court. He rejected to answer. Again he inquired if CFF has any relation with the movement led by It Soung of Khmer Serey (Free Khmer). Richard said there is no relationship of any sort. But as a whole, it was not clear how the defence lawyer consolidated the defence of Richard  Kiri Kim by asking these questions. Finally, the court imposed a life sentence on him.  

Chey Vandy, 39, another accused during the first round of trial, also rejected his earlier confession given to the investigating judge and said that it was done under threat. He said he did not join the CFF at all. The confused prosecutor said aloud: “On what evidence Chey Vandy was arrested? His name is not in the organisation chart. I want the authority to clarify the relationship with CFF and Chey Vandy …” The policeman who arrested him, and who was present at the court told the lawyer of the suspect:  “he was in the list of people we were to arrest.” The police assumed that since Chey Vandy had held no clear position, he must have been in the combat force of CFF. The judge asked where he was during the operation in Phnom Penh. He replied: “I was running a motto at home. During the fighting I was sleeping at home with my family.” Chey Vandy was convicted of organised crime and served with the imprisonment of 3 years.    

The case of Chhun Hourng, 46, during the first round of trial can be another sample case. On being asked at the open court why he joined CFF, Chhun said his idea was to make an association. Yum Neam, his firiend who briefed him about CFF just did it in that sense. In the confessionary statement that he gave to the investigating judge of Kampong Cham, wherefrom his case was transferred to Phnom Penh, he stated that he was in CFF since 1998. He also had said that he held a CFF position at Kampong Cham, and he had his office at his own house. He further pointed out:  “The organisation structure at the district level was not made by me; it was made by Prak Porsa who worked as a rubber plantation filed at Peak Chan. Prak Porsa said he had sent the names to Phnom Penh already. Park Porsa was my Deputy…”  

Chhun identified the document that he had signed before but said that the statement is untrue. He further said that he did not know about the movement of CFF. What he knew was that Richard Kim Kiri was in charge of the organisation which aimed at the development of Cambodia. He further said that he received no letter of appointment. Chhun Hourng was also convicted of organised crime, and was sentenced for three years.       

The Phnom Penh Municipal Court tried a second group of 28 suspects in October 2001. Many of the same concerns were reported for this second round of trial with the exception that the trial was public from the start.  

Sok Som, 23, farmer, was born in Kandal province. He was arrested on 24 November 2000 by military police. He used to work at the factory. He said he did not know about the incident.  At the time he was arrested he was in the house of Tuol Key. He did not know that the house had some weapons inside. On 23 November at 6:30pm, Phany, the house owner, had told him to bring food (two parcels of food) for 30 people at a hill in the rice field.  He told that if he did not agree he would be shot dead. He said they pointed the gun at him and he went home to sleep because they ordered not to talk. On 24 November at 7:00am, the authorities arrested him and Phany.  He took the authorities to see 30 persons and found 3 weapons. The authorities informed Sok Som was arrested at the house of Phany who is the sister-in-law of Sok Som.  “This person showed the place where ‘2 Ak 47’ were hidden.  Answering to the question of his lawyer, he pointed out that when Khoeun the person who brought him to Phnom Penh on November 23, a day before the incident, he did not tell him anything about CFF.  

The Prosecutor interrogated him with a number of questions. He concluded that Sok Som came to work as the factory worker and he was asked by Khoeun for that.  On 23 November, Khoeun brought him to Phany who later asked him to bring food to a force of 30 persons.  Although he claimed that he was threatened, it was clear that he brought the food voluntarily.  This is a pretext.  It cannot be taken into consideration. He provided food for the armed group. With these arguments, the prosecutor gave his conclusion that Sok Som was involved in the group of terrorist. He further said that the person was involved in terrorism even though he was not in the CFF ‘structure list.’ Thus he affirmed his charge of participation in illegal armed group with the intention of causing chaos, instability, and terrorism.  

Lawyer of Sok Som, Chum Sovannaly, argued that the incidence was organized by CFF and Sok Som was not involved in the acts because on 23 November at 7:00 am, he came from the lake, Ponhea Leu, Kandal.  He came to Khoeun’s house in Tuol Key, Phnom Penh.  Khoeun brought him to work as the factory security guard.  It is not strange that poor people look for employment. He rested in Khoeun’s house for a night as a relative.  At 8:00pm on the same day, Sok Som was asked to bring the food.  It was normal to do this sort of job when somebody is a guest in the house of other.  He has never known CFF. He was intimidated to confess. He was arrested on 24 November and he was brought under legal detention only in 7 December 2000, or 13 days after the arrest. This violated the procedures specified by Article 13 of UNTAC. There is no evidence which shows that he is an associate of the CFF. There is no witness to testify. He was arrested in the house where he was a guest; it was not a case of flagrant délicto. Additionally, the lawful period of pre-trial detention was exceeded. The lawyer said that he had submitted a petition for his release; there was no response from both the trial judge and investigating judge. This violated Articles 21, 22 and 14 of the UNTAC law.  

Sok Som was convicted both of organised crime and terrorism, and was sentenced to a term of five years. The decision of the court did not respond to his statement at the open court that he was told to bring food (two parcels of food) for 30 people at a hill in the rice field, and that he would be shot dead if he did not agree to comply.  

Similarly Top Chea, male, 22, construction worker and farmer, was also tried during the second round. Top Chea accepted the statement of confession that he gave to the Military Police and Investigating Judge.  He said he was told to work as a construction worker for better salary in Phnom Penh by a person called Nuon Nath. As such, he came to Phnom Penh by taxi with Chea Kim San and Nuon Nath.  He stayed in a wooden rental house. Top Chea told that there were 3 males in the house, there was no one else. The house owner and his wife were there.  “At 2:30am, I was waken up and led to the railway station. They pointed the gun at me.  If I did not take the gun I would be shot,” said Top Chea. He did not know how many other people were in the force and how many were led at gunpoint.  He was threatened and he shot on the air several times. He went out of the railway station from main entrance with a full magazine and an AK 47 rifle.  He saw yellow and red bans and he threw it away. He denied that an unknown man told him to work as a U.S. soldier to get USD 200 every month. He told that he did not know any such thing.   

The prosecutor however pleaded that Top Chea came to Phnom Penh and stayed in the railway station. Nath brought him with other associates and stayed on the same house.  The house owner made the arrangement for it.  At night, 12:00 am, his group brought weapons.  Chea Kim San and Nuon Nath received weapons and then walked out. He admitted receiving a gun and walked out of the railway to open fires 4-5 times. He was arrested at the place of incident. The prosecutor referred to the fact that Top Chea acknowledged being cheated out but he argued that he had intention to participate in the battle. If he did not have intention, he would have escaped right away. He received the weapon and fired the authorities.  This, the prosecutor argued, showed his participation in terrorism. Lawyer of Top Chea, Chhor Lithay, however, argued that Top Chea was arrested at 7:00 in the morning.  He came to Phnom Penh for a job and he did not know what CFF was.  

Top Chea was also convicted of both the offence of organised crime and terrorism, and was sentenced for ten years term of imprisonment.  

Phy Sovann, 40, businessman, was arrested on 24 November 2000. He came to Phnom Penh on 22 November with a man named Kdeing who he knew during the SOC (State of Cambodia) time as a taxi-driver.  Kdieng asked him if he wanted to come to Phnom Penh.  “I had no job to do.  [As such,] I decided to come with him,” said Phy Sovann.  At 4:00 pm, he arrived in Phnom Penh, the car got flat-tier, so he separated with Kdeing at the taxi station.  On 23 November, he walked down to Ta Khmao to get a bus.  His friend asked him to help look for a car.  “I did not ask where his residence was.  I just went with him.  I was taken to a place near Neak Van Pagoda. Some people were there. They had drink until 12:00am.  I was so sleepy and I went to bed.  At 2:00 a.m, people called me and I went with the group. If I did not carry the B-40 gun, I would be shot.” said Phy Sovann.  

The prosecutor said Phy Sovann recognized that he traveled from his house on 22 November. He stayed in the railway station on 23-24 November. After receiving top of B-40, he walked after the group.  He stopped and went to hide in the wagon.  This showed he was in the armed group because he carried out terrorism in the organized armed group. The prosecutor also pointed out that he was arrested at the place of incidence on 24 November.  

Puth Theavy, the lawyer of Phy Sovann, argued that according to the charge sheet the accused left Kampong Thmor for Phnom Penh with Pheap. On 22 November 2000, Pheap asked him to help to buy a car for him. Until night on 23 November, the purchase of the car could not be done. He went to have a drink and then went to Pheap’s house where some people were drinking local liquor. He was drunk; he was not in a good sense. He carried bayonet of B-40 because of fear. They said if he did not carry, he would be shot dead.  When he walked for 200-300 metres, another person came and took that top of B-40. Then he came back to sleep. He was arrested in the morning. He was not able to operate the armed group.  How can the client create the armed group within one night and one day? To create an armed group, they need time, plans, and weapons. He was put at the gunpoint.  

Phy Sovann was also convicted of organised crime and terrorism and was sentenced for a term of seven years.  

The third round of CFF trial in Phnom Penh has some other stories. A couple of cases may also be discussed at this stage. Seang Hay, 51, who was charged of organised crime and terrorism in the context of the failed coup of November 24 and bombings at the Vietnamese embassy and Funcipec headquarters and the blast outside the Ministry of Foreign Affairs can be taken as an example. The charge read against him at the hearing did not look specific. Evidence produced in the court included a big CFF flag (which bears on its surface a number of signatures of different unidentified persons), some small table flags, CFF membership cards, one or two military (camouflage) uniform/s and some books/diaries. Included in the files were some faxed documents from the United States which, among others, mentions the name of Seang Hay, who was being treated as the most important accused in the group. These evidences, however, were not enough to prove that he was the Commander of the CFF in Thailand as stated by the Prosecutor, and had ordered the explosions/blasts there. Additionally, he also rejected the confession given to the police and the prosecutor, but accepted some of the details including the fact that he was the second bureau chief of the CFF operations in Thailand. Seang Hay was convicted of both terrorism and organised crime, and was committed to the prison term of twenty years.  

Most of the suspects seemed to be the people without sophistication. All of them said that they were forced to confess (some even dared to say that they were beaten up at police custody, and that even the statements given to the prosecutor were taken either in the presence or in close range of police who accompanied them to the court). For example, Ek Chamroen, Ri Borann and Khieu Radoeun, who were accused of planning the attack on the Vietnamese embassy denied the charge in the beginning, but later gave admission on some of the points raised by the court. Suspects Keo Tak, Neak Salim, Cheang Sophal and Phlong Bunthouen all testified that they were not directly involved in the grenade attacks on Phnom Penh’s Funcipec Headquarters, National Assembly and Ministry of Foreign Affairs. But later, after repeated questions and answers, Keo Tak and Neak Salim came to concede that some strangers paid them some money to recruit rebels and send their names to the CFF office in Thailand. Suspect Sri Sren who flatly rejected to corroborate any statement that he gave before to the police, prosecutor or investigating judge was asked by the judge not to be ‘stubborn’ and confess right away.  

The entire thrust of the court was to insist on reconfirmation of the statement of the accused in the dossier. Except in the case of the Cambo-American accused Sao Chum Gilbert, and other two persons named Sok Thy and David Chan, all of the suspects were made to accept some part of the statement they gave to the police or to the prosecutor implicating themselves. Gilbert denied of any involvement in the CFF attack, the bombings of Funcipec Headquarters, the Ministry of Foreign Affairs and International Cooperation or the Vietnamese Embassy last year. Gilbert was arrested in September 2001. Like Gilbert, all alleged CFF members standing trial with him were arrested in September and October of 2001. That means they all were arrested after 9 or 10 months of the fighting of November 2000; and the prosecutor till the end of the trial submitted no evidence to show that they took part in the fighting. There was little direct evidence linking the current defendants with the November 24, 2000 fighting.  

Curiously enough, the judge ordered reinvestigation of the case of Sok Thy, who was one of the 20 suspects brought for trial. He also ordered reinvestigation of the cases of Peter Leng and Chhun Chhoung, and asked to trace out their background in particular. Both of them were being tried in absentia and reportedly live in the United States.  

Several cases were heard outside Phnom Penh as well. The Battambang Provincial Court heard cases of eighteen CFF suspects in March 2002. Two accused were not represented by any lawyers. Even during the trial, they were requesting the court to provide one to plead their defence. But there was no response. The material evidences like CFF flags, booklets, guns, etc were produced in the court. The guns, ammunitions and flags, etc which were confiscated and exhibited at the trial room were said to be confiscated from the accused Chan Vorn, Chea Chhoy, Chhan Chuob Sambath, Suy Bour and others. They however counter-claimed that these evidences although confiscated from their possession belonged to the local military, and were still with them, as they had not surrendered them to the military as ex military men. Only two suspects – Sin Soth and Some Bin – confessed at the court. All others denied the written statement given to the police or prosecutor. At this the judge asked the suspects to produce evidence in support of their innocence. He also said that even if it is assumed that the police forced them to confess, what forced them to repeat the confession at the office of investigating judge. The judge was seen consulting the Phnom Penh Court’s CFF judgement of February 2002. No one was released by the judge on any grounds including lack of concrete evidences. All were convicted for 13 to 18 years of imprisonment.  

On 5 April 2002, three more CFF suspects were convicted to (suspended) imprisonment sentences by Siem Reap Provincial Court. Meas Savoeun, the Siem Reap suspect, stated during the trial that the police did not tell him why he was arrested. Later, he was told that he was arrested because his name was on the CFF list. The judge replied by asking him how many times he had been interrogated. He added that he had to prepare himself to “find evidence during the trial”. Lek Bunnhean, another suspect being tried together with him, did not reply on the question about awareness. The judge did not ask about it again. Mav Srei, the third accused, had not been arrested, nor pre trial detained.

Prosecutor started to accuse all these three suspects together during the trial. On August 10, 1998, Lek Bunnhean would have been recruited by CFF in order to disturb the government. Lek Bunnhean is a former police official and is currently a brothel owner in Osmach. In 1997, a Khmer/US citizen would have approached him in Osmach in order to join the CFF. In 1999, Lek Bunnhean would have stayed in the house of MS in Siem Reap, who also would have been involved in CFF. On September 23, 2000, Lek Bunnhean would have been in Phnom Penh, where he got some money from the government. Meas Savoeun would have been working as a military official in RCAF Region 4 (around 1000 subordinates) in Siem Reap, as a cover or a mean for CFF activities. He would have been complaining about a lack of salary towards his military commander around that time. Meas Savoeun eventually got salary from Chhun Yasith in 2000. Chhun Yasith would have said to him: strengthen your forces; you will get money from me. Mav Srei joined the CFF as secretary of Chhun Yasith. In 2000, Meas Savoeun got money from CY. He would have get respectively 1000, 500, 200, and 200 US $ from Chhun Yasith. Also, a gun has been found in the house of Meas Savoeun (against art. 36 UNTAC). There was a gun lying on a table in the courtroom. The judge stated that Meas Savoeun would have gained the gun by/for the purpose of CFF. Mav Srei (Mav Srei) would have obtained 650 US$ and 300 Bath from Chhun Yasith. 
 

Lek Bunnhean asked the Judge that in 1997, a US person called Hok Srey, asked him to set up an organization. He said he agreed as he had nothing else to do, and he was under the impression that it was an appropriate plan. Yes, he did sometimes come to Siem Reap to see Meas Savoeun; the latter was involved in the development of the organization as well. Lek Bunnhean was aware about the plan of Meas Savoeunto send forces to Kratie. He did not know why. Lek Bunnhean said that he did not see Chhun Yaseth in Thailand; he phoned with Chhun Yaseth sometimes. Lek Bunnhean did not reply on the question from the judge whether he received weapons from Chhun Yaseth.   

Judge asked Meas Savoeun whether he met Chhun Yasith in Thailand; why he was appointed as a military official for Region 4 and what he did with US $ 1000 US he got from Chhun Yaseth. He said only “no” on the first question.  

Mav Srei stated to the judge that she has been in touch with Chhun Yaseth by phone a few times. Lek Bunnhean knew nothing about these contacts. The judge said: “so later you realized that your activities were not good and you confessed to the government…”. She confirmed this statement. The judge stated (but no evidence presented) that Mav Srei received money in August and September 2000 (total US $ 450). Also, the judge said that Meas Savoeun received about 27 phone calls from Chhun Yasith.  

Meas Savoeun stated that he got the gun from the former governor of Siem Reap and that it had nothing to do with CFF. There was no evidence provided linking the gun to the case. He stated to the judge that he never met Chhun Yaseth in Thailand. The Judge asked why he had been appointed as a military official and involved in CFF. He also asked what he did with the money he got from Chhun Yasith. There was no reply from Meas Savoeun on this. The Judge stated to Meas Savoeun that he received 27 phone calls. But no evidence was presented at trial about this. Similarly, there was no evidence about the transfer of money, and the shopkeeper or his concerned staff was not present at the trial.   

Mav Srei and Lek Bunnhean admitted that they were involved in CFF initially, but that as soon as they realized that they were involved in illegal activities, they stopped collaborating with the CFF people. They said they did not realize that it was illegal at that time; they just thought that they were doing some business/building up an NGO. They had transported some phones, or had made some plans for doing this. They were not clear when they stopped doing it. Later during the trial they said that they stopped their involvement in 2000). Mav Srei stated that she never received money from Chhun Yaseth, but she agreed that she was in touch with him (temporarily).  

The prosecutor said that it was hard to find evidence in her case, but because she was accused of being involved in acts of terrorism, it was easier to find evidence. So, if her name was on the list, she was already assumed to be involved. Other CFF suspects/convicted informed the court about her involvement, but they were not present at the trail. If she was not involved with CFF, then why did she contact Chhun Yasith?  

Lek Bunnhean stated that Meas Savoeun never came to Osmach. He said that he met Mav Srei there one time, but that he did not know that she was the wife of Lek Bunnhean.  But Prosecutor stated that Meas Savoeun came many times in the brothel of Lek Bunnhean and that Mav Srei went to Thailand at least 20 times, 2 times accompanied by Meas Savoeun. Again there was no evidence or witnesses.  

Lek Bunnhean and Mav Srei agreed again that they joined CFF, but that they did not realize it was CFF of this sort. As soon as they realized they stopped their involvement with it. The judge said that Lek Bunnhean and Mav Srei accused Meas Savoeun from persuading them to join CFF. Only Mav Srei stated during the trial that Meas Savoeun came to Osmach to persuade her to join. Lek Bunnhean did not reply on this (he only said during the trial that he met Meas Savoeun in Siem Reap). Meas Savoeun denied everything. He said to have never been involved in CFF activities. He said that he did not know Lek Bunnhean and Mav Srei and that he admitted the crimes because of torture/intimidation committed by police and investigating judge.   

The court clerk read aloud some statements during the trial. They included statement of several co-suspects from Phnom Penh and shop owners of shops to which money was transferred and also reports on interrogations of the three suspects. Witnesses were absent. This prevented the accused from presenting proper defense on the contents of these statements, credibility of witnesses and the way in which the statements were obtained. Only Lek Bunnhean, Meas Savoeun and Mav Srei were, as being suspects, were present in the trial room. They accused each other in the statements they gave.  

Meas Savoeun stated that Lek Bunnhean persuaded him to join CFF, but they did not clearly persist in their statements during the trial (apart may be from Mav Srei). Prosecutor stressed that Lek Bunnhean and Mav Srei later realized that they were acting inappropriately. Prosecutor also states that Meas Savoeun was on the CFF list from the beginning. Lek Bunnhean and Mav Srei were not, so initially they were not prosecuted. Later, the court changed its mind, because they might continue illegal activities if not prosecuted.  

Lawyers had questioning of their clients and other suspects during the trial. In their pleas, they mentioned some procedural irregularities but stressed the lack of evidence in particular. They emphasized that the involvement with CFF is only found out from the statements of Lek Bunnthean and Mav Srei, which were vaguely confirmed during the trial. Meanwhile, the judge seemed indifferent about their arguments. He was busy adding something on the pre-written verdict with a red pen. He did not seem to listen to the lawyers. The three suspects got the last word in the trial. The judge did not take time to think or further make up his mind. Obviously, the verdicts were pre-written and sentences were decided before he started hearing.  

The case of Im Yoeu tried by Kampong Cham Court is yet another example. Im Yoeu was arrested on October 27, 2001 by Military Region – 2 which later sent him to provincial police of Kampong Cham. In the confessional statement he made to police he said he had joined CFF movement on the persuasion of two of his friends. One of the these two friends identified himself as a representative of CFF leader. He was appointed as commander of Division – 1.  

In September 2000 at Vat Than pagoda in Phnom Penh, he met with four other persons who knew him when they met each other at Funcipec office in Phnom Penh in 1998. He tried to persuade him to join CFF. There, he also met another man who identified himself as special representative of CFF leader. They all had a chat at pagoda for a while about mobilisation of forces. Im Yoeu was told that if he wished to meet the CFF leader, he would be brought to Thailand with a prior appointment made through special representative at Poi Pet. In Early September 2000 he together with two other men went to Poi Pet and met the special representative Ly Hov at a local hotel. Next morning, they were taken to a pagoda in Aranh province, Thailand, where he met the CFF leader. Before returning back to Phnom Penh, each of them was given 1,000 Baht. Back at Phnom Penh, when they met the CFF representative, he scolded them for visiting the CFF leader without taking his prior permission. Since then the representative never contacted him until the November 24 fighting in Phnom Penh. Three days after the fighting, Im Yoeu left for Chamkar Leu district and stayed there till he was arrested.  

In his statement to the investigating judge he said that the confession he made to police is not coerced. He also said he had joined CFF but had never conducted activities in connection with CFF. He denied participating in the November 24 fighting. During the trial as well he repeated the same statement. Except his first wife who was brought to the court, and had no knowledge of anything about CFF and, no other witness were called or appeared during the trial. After an argument from the lawyer that the case lacks evidence in support of the charge, the judge dropped the offence of organised crime, but convicted him of the charge of terrorism. He was convicted and sentenced for 10 years in prison. In fact, his hearing finished in about an hour in the absence of witnesses and other incriminating evidence.  

The case of Nuon Simoeun may also be discussed. Nuon Simoeun told the court that a man named Nol came to visit his house in June/July 2000. He asked Nuon Simoeun to do a job for him, and promised to give money, which Simoeun desperately needed for his treatment. Nol gave 20,000 Riel to him at that time, and lent another sum of 1000,000 after sometime. Nol visited Simoeun sometime later with another man named Phon when he was at a clinic going through treatment. After he recovered and came back to the house, Phon again visited Simoeun, and asked him to write a piece of paper that he has 375 soldiers under his command. He did not want to write such a thing. Then Phon remarked that he will get some money if he does it. Simoeun wrote a mock number of soldiers and demanded US $ 2000 and one hand phone. Because he was sick and could not travel to collect money from Phon, he asked Kosal to get the money from Phon. Kosal left the village for three nights and returned with $ 40 and gave that money to Simoeun who in turn gave five dollar to him for having done the job.  

In August 2001, Simoeun made a trip to Phnom Penh to get more money from Phon. He did not know Phon’s house but they both set a place at coffee shop to meet. Phon took Simoeun to his house, told Simoeun to write about the soldiers under him and gave US $ 400. Simoeun said when he got money from Phon he used that money to pay cost for treatment and stayed home without undertaking activities in relation to CFF. He said he had no contact with Nol and Phon until he and Kosal were arrested.      

In his separate statement, Kosal said Phon took him to meet an unknown man, told him to sit and drink coffee and gave him US $ 50. Kosal changed 10 of 50 dollar for travel expenses and gave 40 dollar to Simoeun who gave him five dollars.  

The judge read a confession Kosal gave to police that he and Phon went to Thailand, met and shook hand with a man, Ghin, who inquired about our forces. During their stay in Thailand, Kosal heard Ghin wanted to send CFF flag with Phon back to Phnom Penh, but denied knowing that whether the flag would be sent upon return from Thailand. During the trial Kosal did not talk how and with whom he came back from Thailand, but said he received US 50 dollars from Phon.  

The lawyer presented the prescription of Simoeun’s physician as an evidence that he was in the hospital and not able to undertake activities related with CFF or mobilisation of combatants under his command in the past. He also argued that there was no strong evidence and no witness testified that he was involved with CFF. All that the prosecutor had was the confession made to police and gendarmes. He also said that his client had never had any contact with the provincial military of Kampong Cham. No arms were found with the accused and there was no evidence that they used any arms. The lawyer also argued that the amount of money his clients received cannot be used to mobilise or prepare armed forces. The whole objective of his client was to find some money for his treatment so that he could live longer. The two names were not in the computerised list seized by the police.  

The prosecutor argued that the paper showing the numbers of soldiers and request for money and hand phone prove that they organised a group of people intended to be against the government. One of the two (Kosal) went to Thailand, met with CFF involved people, and received money and if they did just for money, why they did not confess to authority after they got money.  

The judge decided to sentence Nuon Simoeun for two years in prison and Soeung Kosal for five years in prison under Art 36 of UNTAC Law.  

These sample cases generally represent the sort of CFF cases tried in different courts as of today. In addition to these sample cases, mention must be made of people tried in absentia. Chhun Yaseth, who was believed to be the President of CFF, and Thong Samean, General Secretary, were tried in absentia.  According to the judgment of the first round of cases, Chhun set up the overall principles and plan in order to overthrow the legitimate government of Cambodia and the throne. He carried out the propaganda activities to persuade and mobilize forces and associates of the lower ranks to carry out acts of subversion. He organised the network, persuaded the people to serve the armed group of CFF, and bestowed medals to the associates. He collected and provided fund, arms and equipments. According to the judgement, this accused is the one who drew up the itinerary plan to attack Phnom Penh together with other associates of the lower rank including determining the main targets to be destroyed. The court said that he gave the order to attack on November 23-24 from Thailand on telephone. He was convicted of organised crime and complicity in terrorism with the life sentence.  

The activities and commission of offences carried out by Thong Samean were described by the court as similar to those carried out by Chhun Yaseth. Therefore, the offence with which he was charged was changed from terrorism to conspiracy to pursue terrorism and organisation of armed group leading to the attack of November 23-24. Thong Samean was also convicted in absentia of organised crime and complicity in terrorism with the life sentence during the first round of cases.     

Many other cases could also be added to the preceding discussion. Suffice it to say for our purpose that  there was limited focus on most critical elements of criminal liability – i. e., an act was not wrongful unless accompanied by a wrongful state of mind, or as a general proposition, one cannot be convicted for mere criminal thoughts; one must normally do something towards bringing those thoughts to fruition. The comment is not on the output of trial, but on the requirements of the trial.  

8.    Reinvestigation or Acquittal  

Most of the CFF cases, including those discussed above as sample, demonstrated one thing straight: there was a sort of doubt on the motive of prosecution and adequacy of proof. The existing law maintains that any doubt as to guilt shall be construed in favour of the accused.[11] That did not generally happen. Again, if the court so wished it could have asked the prosecutor or investigating judge to further investigate the case, instead of acquitting the suspects, if it had strong grounds for it. Generally, it did not like to go for this option too.[12]

After all the CFF trials,[13] only a few suspects were found innocent. During the first round of trial of 32 persons, for example, the court found Bun Mony, 47 and Sokh Samith, 41, innocent on both counts of participation in armed group and act of terrorism. Their release was immediately ordered. Some observers expected from the beginning that one or two persons will be declared innocent to demonstrate that there was a full-fledged trial. Some suspects were found guilty only of one of these two counts. The court had found 9 other suspects not involved in terrorism. In other words, they were convicted only for organised crime. The court found Chhun Yaseth and Thong Samean (both of whom were convicted in absentia), Richard Kim Kiri, Nou Sarun, Chhan Yean, Nuon Nath, Veng Sothy, and Kol Sarath who were tried during the first round of trial in Phnom Penh guilty of complicity in terrorism as well. Only a few were ordered with reinvestigation of their cases.

Mention must be made, for example, of the third round of trial at Phnom Penh in which the trial judge ordered reinvestigation of the case of one suspect named Sok Thy.[14] Later, he was released due to the lack of evidence.

9.    Pretrial Rights

These few instances of hearing must be understood in the light of pretrial rights of the suspects. The risk of human rights abuses started at the first moment with the officials raising suspicions against the persons known to be involved with CFF since its establishment. The right to liberty was under threat because several arrests were made without warrant, and many of those arrested were detained in military or police stations, or Ministry of Interior over 48 hours, and pretrial detention over six months. Most of those who were arrested were not given immediate information about the reasons of arrest. Access by lawyers to their clients in prison was denied or regularly restricted in several cases. Similarly, in several cases the lawyer was not enabled to meet in private with his client. The right of detainees to have access to the outside world was also impaired. Visits by family members had been denied or irregularly restricted. The right to be brought promptly before a judge or other judicial officer was ignored in several cases. Above all, the provision of law that any accused person, whether or not in detention, must be judged no later than six months after arrest was also violated in many cases.

In November 1998, at least 16 persons were arrested in Malai, believed to be CFF members, who were accused of organised crime and were detained for several months in Battambang Provincial Prison. Whereas those arrested claimed that they had gathered with a large group of people in order to go to the Thai border in order to receive rice from an American organisation based in Thailand, and carried guns to protect themselves from robbery, the government claimed that the group was organising rebel activity and had been incited by the CFF to stand up against the Prime Minister, and to receive rice in exchange for their struggle. Accusations were made against the group that it confiscated weapons from government authorities as well as civilians. The CFF repeatedly faxed reports to the press claiming that it had organised an opposition demonstration. It criticised the excessive use of force by the authorities during the arrest of its supporters. No trial was held in any of the cases; some of the suspects were released because of lack of evidence; others were released reportedly after influencing the court.  

Again in April 1999, five people accused of being CFF members were arrested in Phnom Penh and charged with terrorism/sabotaging to destroy Cambodian economy. They were suspected of planning to attack a Sokimex petrol stock station in Prek Pnov, near Phnom Penh. Shortly after the arrests, CFF issues a press release, in which it fiercely criticised the government for the grenade attack, the coup d’état, election fraud and immunities given to Khmer Rouge leaders. It did mention the alleged plan of attack on the Sokimex station. All of them were (former) Funcinpec members, two of whom claimed to have contact with Chhun Yasith.  

During mid-end 2000, the COHCHR received several reports that the CFF was carrying out propaganda activities calling for the overthrow of the government by handing out leaflets in at least two provinces in Cambodia. Three people were arrested in Kampong Thom and Kandal Province, and were released shortly after.  In August 2000, one of the leaders of the CFF visited the COHCHR twice and reported about his fear of arrests of members of the CFF. His fear was prompted by speech given by Prime Minister on 24 August, in which the Prime Minister called for the arrest of the leaders of both the CFF and the Khmer Serei movement.[15] Arrests of the members of the CFF started well before the 24 November attack in Phnom Penh. In the beginning of October 2000, three soldiers were illegally arrested and detained for 3 months at the Provincial Military Headquarters in Battambang. They were interrogated about their CFF activities. Again on 17 November, three men were arrested in Siem Reap. On 19 November, a woman who transported equipment for the CFF was arrested in Banteay Meanchey Province.  

Then on the early hours of 24 November 2000, CFF conducted an operation in which it attacked three governmental positions: Council of Ministers, Ministry of Defence and Military Base F70. This attack gave the green light for indiscriminate arrests. Several arrests were made in the wake of the day.  An investigation conducted into the arbitrary arrest and killing of persons allegedly involved in the November 24 attack  showed that arrest without warrants were made on the basis of a list of 50 persons whose pictures were included in the list. Arrests were also made on the basis of another list of 291 names of persons compiled by the military intelligence. Most of these arrests were made in the first few weeks after 24 November. None of these arrests were made with proper warrants of arrests issued by the courts according to law. Most of the suspects were held at the Phnom Penh Municipal Gendarmerie headquarters. Some had been transferred from the province to the National Gendarmerie, others to the Phnom Penh Municipal Police. Some of the suspects who appeared to have been high risk like Richard Kiri Kim [included as a sample case above] and some high ranking police officers like Nourn Nam , Nou Saron, Ma Soben, etc were detained at the Ministry of Interior. Prime Minister Hun Sen asked NGOs to stay out of its investigation adding that the government will arrest human rights workers who were hiding alleged terrorists.    

An unidentified number of suspects were released after interviews conducted at their initial place of detention, for lack of evidence linking them to the attack. Almost all of those arrested who were later sent to the prison were not brought before the court within the maximum period of 24 hours. The court reported to the Office that it was not able, considering their human resources, to deal with in a short period of time with the large numbers of arrested persons. In January, two monks were arrested for alleged involvement with the CFF; in both cases proper arrest warrants had been issued and the monks were brought before the court within 48 hours. As of the beginning of February, 73 persons had been taken to the Phnom Penh Municipal Court. Warrants of detention were issued and charges of terrorism and organised crime were laid against 54 of them. Warrants of release were issued for 19 persons. While all persons arrested in the provinces were transferred to Phnom Penh, one suspect, who is a journalist for Agence Khmer Presses, was in detention in Kompong Cham Province for unclear reasons.  

Arrests of persons believed to be related to the CFF continued in Phnom Penh as well as in the provinces, most of them carried out without issuance of proper warrants. In one instance in Banteay Meanchey Province, a man arrested on suspicion of involvement with the CFF was beaten up seriously. He was released after intervention by the COHCHR Provincial Office and provided assistance for medical treatment. The Office was able to conduct interviews with several suspects while they were brought to the Phnom Penh Municipal Court. The Municipal Court had approved a request by the Office to continue conducting interviews with the suspects, who are awaiting trial in a prison on the outskirts of Phnom Penh. The Ministry of Interior, in disrespect of the competency of the Phnom Penh Court, prevented access by staff of the Office to the prison. The COHCHR did not receive any response to a written request to the Ministry of Interior to allow staff to meet with suspects in the prison.  

Whereas in general, persons interviewed by human rights groups reported that they had been treated upon arrest and during detention according to the law, twelve out of 73 persons brought before the court in Phnom Penh reported they had been beaten or kicked during arrest by gendarmerie or police, and during detention at the gendermerie headquarters.  

The COHCHR, with the good cooperation of the Phnom Penh Court, was able to ensure that most of the detainees, who were brought before the court, were assisted by lawyers from legal aid NGOs or the Cambodian Bar Association. However, since the suspects were detained in the Phnom Penh Prison, lawyers had faced difficulties in getting access to their clients, despite the fact that the lawyers were all officially appointed by the court. The prison director reported to have received instructions from his superiors (and it is not clear from what level), not to allow anyone in without permission from the Ministry of Interior. As of mid-February, a few lawyers had been able to meet their clients, but only after approval given by Ministry of Interior. The Cambodian Bar association and Cambodian Defenders Project complained about the unlawful requirements made by the Ministry. The COHCHR on 14 February requested the urgent intervention from the Co-Minister of Interior to ensure that lawyers are given full access to their clients without the need for prior authorisation.  

Despite approval by the Phnom Penh court which was given in accordance with the prison procedures, relatives of suspected members of CFF still encountered difficulties in visiting their families in the Phnom Penh prison. The Ministry of Interior instructed the prison director to allow access only after approval by the anti-terrorism committee which was set up shortly after the 24 November incident. At the same time, the prison director had refused lawyers who were officially appointed by the Phnom Penh Court access to their clients accused of involvement with the CFF.  The Office also requested the Co-Minister to guarantee relatives’ access to the detainees, in accordance with prison procedures.  

Whereas six persons suspected of involvement with CFF were sent to military prison (and the three in Battambang kept at the military base), all others were brought before the civil court. After intervention by the Office with the military court, the six were transferred to the civil court.  

Many leaders of the attack, and recruiters for the CFF were Funcinpec members. It seemed that many of those who carried out the attack were not politically affiliated. Several of those who were arrested after the attack, and who did not participate in the attack, were also affiliated to Funcinpec. One person was known to be a former Son Sann Party member. All of those who were arrested from Pailin were former Khmer Rouge and current Sam Rainsy Party members or supporters. Many of those who ‘surrendered’ to the authorities were Funcinpec members or supporters. In Svay Rieng Province, some of them, used to be affiliated to Funcinpec but shifted allegiance to a party loyal to the CPP after the coup d’état in 1997. The Government stated that persons from the CPP had also been arrested. The COHCHR only received information about the surrender of two CPP members in Prey Veng, and the surrender of former high ranking CPP member and former Vice President of the National Assembly (’82-93), Nou Beng.  

Three round ups of large numbers of people in Kampong Som and Phnom Penh, related to the incident, led to the arrest of another approximately 400 persons, who were released after short periods of detention. In Kampong Som, authorities conducted late night arrests of young men, since many of those involved in the 24 November attack were young men. In Phnom Penh people were arrested in two instances, in the area around the railway station, wherefrom the 24 November attack started, because they had not registered their residency in the area with the local authorities.   

The Phnom Penh Municipal Court tried a second group of 28 suspects in October 2001. Many of the same concerns were reported for this second round of trial. Since most of the suspects had been arrested together with those tried in June, they had been in excessive pre-trial detention even longer than the first group. Difficulties for the lawyers and relatives to visit the suspects remained. When the suspects appeared before the court, it was clearly visible that several of them were not able to walk or stand up properly and suffered from beri beri. This is due to Vitamin B deficiency, and is due to the poor diet in the prisons. The fact that several of the suspects come from the provinces and therefore could not be frequently visited by relatives upon whom prisoners in general rely for additional food supplies could have caused the beri beri. However, it is likely that the fact that it was difficult for relatives to get access, as a result of the Ministry of Interior’s requirement to obtain prior approval could have contributed to prisoners contracting the disease.    

While sporadic arrests have been made since the beginning of the year 2001, September saw a third wave of arrests of CFF suspects, in particular in Battambang province. Arrests continued in October as well as November. As of 14 November, the Office had received reports that 62 newly arrested were in pre-trial detention in Phnom Penh, Battambang, Banteay Meanchey, Siem Reap and Kampong Cham provinces.

The first arrests were made in early September. The Office received credible information that the CFF had planned to carry out some attacks in September, around the Festival of the Dead (end September) and possibly the water Festival (November).

Most of the new arrests were carried out without warrants. At least nine of those arrested were prospective commune council candidates for Funcinpec or the Sam Rainsy party in Battambang province. Five of them were released and were still able to register as candidates. The Office tried to verify the basis of the arrests and detention of those who remained in prison as it was concerned that these persons might have been targeted because of their legal political activities. So far, the Office was reported that the arrests were based on a testimony of a CFF suspect, who used to be a Funcinpec member, but left the party disgruntled. Moreover, during house searches, which were conducted without warrants, explosives and some weapons were found. These suspects, however, came from former Khmer Rouge areas, where possession of arms remains common.  

In Battambang, the President of the Court refused to appoint lawyers for the suspects, claiming he first wanted to finish interrogations; relatives were also not allowed to visit the suspects in prison. After intervention by the Office, these issues were solved. In the context of April 2002 trial in Siem Reap, it is noted that COHCHR and NGOs were not allowed to enter Siem Reap provincial prison (prosecutor Siem Reap did not give approval) to interview the suspects preceding the trial.

At the end of September/beginning of October of 2001, the Ministry of Interior wrote to the Phnom Penh Court requesting them to get prior approval to meeting suspects in prison. The Prison Director had earlier told the court that security concerns prevented prison officials from transporting suspects to the Phnom Penh Court. The investigating judge refused to request permission from the Ministry. His staffs were able to conduct interrogations. He requested the Office not to raise this concern with the authorities.  

The patterns of the violation of pretrial rights are similar in most of the cases whether decided by the Phnom Penh Court or by the trial courts in the provinces.  

10. Rights at Trial  

The focus hereunder is on the rights at trial. In fairness to the CFF trials, one must say that the courts, which decided CFF cases, were the courts with all jurisdictional competence to hear these cases. There was no retroactive application of criminal laws and double jeopardy. Similarly, any suspect invoking the right to an interpreter and to translation was not noted. In the rest of the cases, generally speaking, the performance of the court in the context of the rights at trial was also very poor.  

In 11 June 2001, when the first trial of 32 persons suspected of involvement with the CFF had begun, it was not public.[16] Several media and representatives of human rights organisations were not allowed to observe the trial. The security guards outside the court asked for authorisation letters from the court in case of NGOs and the Ministry of Information in case of media persons. Lawyers too did not have enough sitting arrangements for them. A lawyer spoke to the court that the wife of his client (suspect) was not allowed to come and listen to the trial. Another lawyer complained to the trial judge that he was not allowed by the guards to come to the hearing room. The third lawyer then commented: “On behalf of the lawyers, [I protest that] this is not really a public hearing. The organisation of the trial is not according to the procedure. [I} requests for a public trial. This hearing is not held publicly.” Several other lawyers also boycotted the proceedings. Ang Eng Thong, President of the Cambodian Bar Association, and Soun Visal of the Cambodian Defenders Project were both denied access to the trial on the morning of June 11.

However, the trial judge did not delay the hearing, and appointed two new lawyers for the clients whose lawyers boycotted the courtroom. They defended the clients they had never met. The presence of a large number of security forces in the courtroom, creating an intimidating environment, threatened the right to a public trial.

During the trial of second group of 28 suspects in October-November 2001, the trial judge denied a request made by a lawyer of one of the suspects to summon one of the leaders of the CFF already convicted, and who had currently been in prison, to the court. Written evidence provided by this convict, stating that many of those on trial were his subordinates, was however used by the judge against the suspects, in spite of the latter’s’ consistent testimonies that they had been lured to Phnom Penh from the provinces, with promises of money. Most of them claimed not to know about the CFF, and thereby denying that they had any intention to conduct terrorism (one of the elements of the offence of terrorism). Most of them were however convicted of terrorism (as well as organized crime). Another request by a lawyer to summon two other witnesses was also denied by the judge during the trial.

Many of the suspects retracted confessions made in front of the investigating judge in the early stages of the pre-trial detention. They claimed that they feared reprisals if they would not answer consistently with the interrogation made by the Military Police, since after their appearance before the court, they were brought back to military police detention. The judge did not take this defense seriously. None of the military police interrogators were present during the trial, or were called so that they could be examined.  

One of the suspects claimed to have been recruited by the military intelligence in order to provide the government with information on the CFF. He had been provided with documents to that effect, but these were allegedly confiscated during arrest. They could not be found in the court’s file, which did include a letter from a senior officer of the military intelligence, Mr. Hour Sareth, denying the allegation. The trial judge summoned the commander to the court, but he failed to appear, according to the Ministry of Defense, Mr. Hour Sareth was on mission. Despite his failure to appear the judge upheld Mr. Hour Sareth’s argument and considered the claim by the suspects as untrue, and convicted him to 15 years.  

Despite the appearance that the reasoning on which the judgement was based was more substantial than during the first trial, serious concerns remained leading to the conclusion that the suspects did not get a fair trial. Interestingly, one of the suspects was convicted to 7 years imprisonment, despite guarantees of immunity from prosecution given to him, through Om Yentieng and Mul Roeup, head of the military intelligence by the Prime Minister. Several months after his return to Cambodia, and on the first date of the first trial he was arrested. One of the judges, who requested anonymity, reported that he had been called several times to one of the Ministries in order to discuss his decision concerning one of the suspects. He feared that he could be dismissed, possibly by the Supreme Council of Magistracy which has legal powers in this regard.  

The third round of CFF trial in Phnom Penh had some other stories. At the beginning of the trial of 23 suspects, the trial judge told the lawyers as well as suspects that they can request for additional lawyers if they think that there are conflicting interests, and the lawyers appointed at the moment cannot represent all these interests together. He also told that additional lawyers are ready if they are requested for. Nobody had any specific request on that point. Dy Borima and Puth Theavy, who were acting as the court appointed lawyers for the 2+18 accused persons being prosecuted, also did not comment on that. The judge also briefed the accused persons at the beginning of the trial on all fair trial issues that were brought to the attention of him in COHCHR’s meeting with him on February 15, 2002. The right to consult lawyer and get clarified from the judge if the suspects did not understand questions posed to them was also included.  

The court appointed lawyers in the third round of cases were not defending the interests of their clients to a desirable level. The two lawyers representing 20 (i.e., 2 + 18) clients had difficulties to meaningfully prepare the defence of their clients not only because of the gravity of charge against them, but also due to the possibility of conflict of interest between the accused persons, and impossibility of defending every suspect equally and meaningfully. It was also not possible to understand what they had in mind when, in addition to the questions asked by the prosecutor, they were asking further questions to the suspects, making their position more complicated. One of the lawyers was given a hint, for example, during the hearing of Seang Hay, that faxed documents do not prove anything until the prosecution proves that Seang Hay acted on the advice given by the sender of the fax, or responded it in appropriate ways. There was no comment on that from the defence lawyers. There were so far no comments on the paucity of evidence.  

Some irrelevant questions were also asked by the Prosecutor and the trial judge. [This is true of all CFF trials held throughout the country]. The impartiality of the trial judge in conducting the trial might be questioned. Most of the questions that should have been asked by the Prosecutor were asked by the trial judge himself. The courtroom appeared more as a room of the investigating judge than a trial room because most of the time was spent on further interrogation, than asking the prosecutor and defence lawyers to take up or defend their case. The prosecutor did not call any witness to testify; his whole approach was to focus on the confessionary statements made by the suspects in the police or prosecution office.  

The court seemed keen on using the statement given by one suspect against another. There is no law in Cambodia which requires that the statement of a co-accused can only be taken as evidence against another accused on oath and subject to the process of cross examination at the trial. The statements of some convicts, serving their prison sentence following the CFF trials held last year, were also being used against some of the present suspects. But these convicts were not called on to give their testimony in the open court, thus depriving the attending lawyers an opportunity to examine or cross-examine their implicating statements. Apparently, the prosecution was consolidating its position on the statements of the co-accused and former CFF convicts in the absence of other substantially incriminating evidence. From the statements given by the suspects to the court, and further clarifications, it appears that some of them may be technically involved with CFF without knowing much about the organisation and its purpose. In this background, the challenge before the court was to find the required intent under both these provisions, and that seemingly was not proved.   

On 5 April 2002, three more CFF suspects were sentenced by Siem Reap Provincial Court. One of the three suspects was convicted to 10 years imprisonment, but the sentences of two others were suspended. Again, the convictions were not based on substantive evidence, and the trial suffered from several procedural irregularities. One of the suspects was not provided with a defense lawyer. Sequence of trial events was as such performed reasonably well as in the case of Phnom Penh trials (opening of the trial, accused questioned as to background, prosecutor reads charges, questioning by judge, reply of accused, questioning by lawyers, reply of accused, pleas of lawyers, closing arguments, last reply of accused, judgments including sentences). But the judge did not keep off from asking some leading questions. He seemed to act as a prosecutor at times. Both the judge and prosecutor stressed the opportunity for the accused to prove their innocence, rather than explaining them about their rights (including the right to silence). Defense lawyers did not object to the continuance of the trial without the presence of witnesses (whose statements were read aloud by the clerk), to leading questions from the judge, and to not inform the suspects of their rights and asking them to come up with evidence about their innocence. Note that the reference here is to the cases of Lek Bunnhean, May Srei and Meas Savoeun, which have already been described above as sample cases.  

The judgements of CFF cases generally don’t focus on the elements of crime that we discussed above in relation to the fact and evidences presented at the court. Conclusions are made without referring to the arguments made by lawyers. Very limited references are given on the statement of the suspect at the open court. They all show that the judgment that these judges have rendered are inadequate. A more objective assessment of the rights at trial may be made with specific reference to the following standard principles:  

·         Presence of the Accused  

All the accused were present at the trial with the exception of those who apparently had not been traced. The people like Chhun Yaseth and Thong Samean who are said to be the leaders of the CFF were convicted in absentia. The lack of presence of such important figures of CFF in the trial means that even those who were present were not sufficiently understood in the absence of the statement of the prime suspects. There were other problems also. In the second and third round of cases in Phnom Penh, for example, the court appointed lawyers had not argued anything in favour of the absentee suspects. Trial in absentia, though acceptable in exceptional cases, is a current feature of the Cambodian justice system. At any rate the rights of the accused will still be protected under Cambodian law since an accused who has been tried in absentia can lodge an opposition to the judgement.[17]   

·         Equality of Arms  

All the CFF lawyers did have access to the files containing the evidence relied on by the prosecution. Since many of the court appointed lawyers expected the copy of all these files supplied to them free of cost, but that was not done. In the third round of cases, at the Phnom Penh Court, for example, the case files supplied to the lawyers did not contain statements of the accused persons at the police station. To maintain equality of arms a fair balance is expected to struck between the parties in the case. The disclosure should cover all materials for or against the accused and it should include the relevant testimony of the accused at the police custody.

During the second round of CFF cases at Phnom Penh, for example, at no time did the prosecution show any willingness to assist in providing the necessary information to one accused, Tep Simoly, in respect of a key witness, Hour Sareth, who was a senior military intelligence officer. The accused alleged that Hour Sareth had asked him to infiltrate the CFF organisation and act as a spy for the State. Though the judge did request that the witness should be present, the witness never turned up and the only official reason was that he was on mission. The judge did not pursue the matter further. The lawyer of the accused insisted on the presence of that witness but her efforts fell on deaf ears. The prosecutor simply submitted at the end of the case that Hour Sareth had denied the version of the accused. A letter allegedly written by Hour Sareth and remitted to the accused was never produced; the prosecution remaining content in saying that there never was such a letter as Hour Sareth had no right to issue it. In the absence of Hour Sareth this important fact could not be verified. It is a matter of grave concern that, on the state of the evidence and, given that this witness did not attend court, accused Tep Simoly was convicted and sentenced to 15 years imprisonment.

Impartiality and Independence

Under Cambodian law the trial judge has the right to question the accused. This should obviously be done in the strict respect of the rights of the accused, more particularly his right to silence and self-incrimination. The questioning of the accused in all CFF trials seems to have been conducted with a view to compel them to confess to the alleged offenses. In many cases in Phnom Penh or the outside provincial courts, the accused persons were confronted with the list of the names of the alleged CFF activists and the impression was that, since their names appeared there, they could have no plausible explanation to give by way of a defence. The defence of the accused was that they had been tricked to come to Phnom Penh to get a job and that they were forced to carry rifle and follow the group. This defense was simply dismissed as ridiculous during the questioning. A glimpse of the cases that have been reported above as sample cases explain the realities.

In the second round of cases in Phnom Penh, at one stage in the course of trial one lawyer requested that three witnesses be summoned to court for questioning. The judge simply ignored this request and the lawyer did not pursue the matter further. As pointed out above, one important witness who was a high ranking military intelligence officer did not attend court in spite of a request by the judge that he should attend. In fact, that witness, Hour Sareth could have helped in determining whether the defence of the accused that he was an under cover agent was genuine or not. The judge was not unduly concerned by this absence and the explanation of that accused was simply rejected.

Presumption of Innocence

The overall impression during all CFF trials in Phnom Penh and outside was that this principle was not really respected. In fact the whole atmosphere in the course of the trial, with police officers in uniform filming the proceedings from the bench and the picture of each accused being taken during interrogation, was rather intimidating. The judge, at times, and the prosecutor, all through the trial, in the course of his interrogation of the accused, visibly treated them as guilty persons.

On the first day of the second round of trial at Phnom Penh, the accused were brought to court in handcuffs. They were removed subsequently and were not used on the following days.  

During the third round of trial in Phnom Penh, the trial judge shouted at the suspects at times. He even threatened one accused not to be ‘stubborn’ and accept the guilt. The observers expected the trial judge to ask the prosecutor to prove his charge, or request the court to drop it in the absence of incriminating evidence. He never did it. An aggressive course of interrogation was a challenge to the guarantee of the presumption of innocence.

Right to be informed of the charge

The charges were read out to the accused. All of them presumably understood what they had to face. But it cannot be assumed that they understood the legal characterisation of the acts allegedly committed by them. In fact, the elements of the offences of terrorism and taking part in organised crime are quite complex for a layman or even for a lawyer to understand. All the accused simply stated that they were not guilty of the offences. One accused, during the second round of trial at Phnom Penh, had some difficulty to understand what the charge was and he kept saying that he did not understand why he was in court as he had done nothing wrong.

Times and facilities for the preparation of defense

All the accused, except those tried in absentia, were represented by lawyers during the first and second round of trials at Phnom Penh. During the second round of trial at Phnom Penh, a lawyer was appointed during the trial in the case of those accused who were not represented or who wanted a change of lawyers. None of the lawyers who were so appointed made any request to be given some time to talk to their respective clients. Since the main line of defence of most of the accused was that they had been forced to join the CFF group and that they had been beaten up by the police to confess, it would have been better for the lawyers to ask for some time to prepare the defence on those lines. The judge also did not make any observation on this. The interesting point is whether the lawyer would have been granted an adjournment. In fairness to the judge, however, it must be said that he really acceded to the requests of the lawyers to allow them to communicate with their clients whenever required. On some occasions, the lawyers were even allowed to talk to their clients before answering questions from the bench. But during the third round of trial in Phnom Penh, and many other trials in the provinces, there were neither times nor facilities for the preparation of defense.  

Trial delay

The accused in the CFF case of the first and second round were arrested in November 2000 and have been tried almost a year after. Article 21(1) of UNTAC Law provides that a person whether or not in detention must be judged not later than six months after arrest. Lawyers always invoke this article to secure the release of those persons who are tried more than six months following their arrest. Article 22 of UNTAC Law provides that where there has been no compliance in the procedure set out in articles 10 to 21, and this includes the right to be tried within six months from the date of arrest, the person must be released if the non compliance has seriously interfered with the rights of the defence. That did not happen.

Legal representation

As already stated all the accused were represented during the first and second round of trials in Phnom Penh. Some of the accused were represented by two or more lawyers who took turn in questioning the accused. At times, it was apparent that this strategy confused the accused. When the same questions were put by the different lawyers the situation became worse. It is not clear whether these lawyers had had time to meet and discuss among themselves before hand. The lawyers who were appointed in court had no time to consult the accused in such a situation.

The main line of the defence of the accused was that they were tricked into coming to Phnom Penh to get a job and that they had been acting under duress if at all they participated in the armed group. Hardly any questioning was done on this aspect except for statements made by the accused parties. None of the police officers present was questioned on this issue nor did the lawyers make any request that this be done. Yet this was an important line of defence. In the context of third round of trial in Phnom Penh , one should also quickly add that the court appointed only two lawyers to represent 20 suspects. There were apparent conflict of interest between these suspects, and the lawyers could not plead the defense of all these suspects reasonably. The role of the lawyers in relation to these 20 suspects was in fact largely ceremonial. The office had cautioned the trial judge about this fact some days before the trial. Two accused in Battambang were not represented by any defense lawyers.

The submissions made by the lawyers at the end covered mostly the law relating to the rights of the accused and the articles of the law creating the offences. There was no in-depth analysis of the offences and the evidence or lack of evidence in relation to each element of the offences.

Many of the lawyers turned up late in court and some of them just left because the questioning of their clients was over. One lawyer who was representing one accused left and disappeared after the questioning of his client was over and did not attend the court to make his submissions at the end. It is believed he is a CDP lawyer. The judge stated he would accept written submissions from him. 

In general the lawyers both in Phnom Penh and provinces were given full latitude to defend the interest of their clients and the court cannot be blamed for their shortcomings. This is a matter that should be taken with the Cambodian Bar Association so that remedial action is taken to improve the quality of the profession. There is an emerging jurisprudence in human rights on incompetence of lawyers and its effect on the rights of an accused and the lawyers need to be aware of this.

The right to call and examine witnesses

This right was impaired in most of the cases. Many necessary witnesses were not called to the court. During the third round of trial, what the trial judge did was to pit one suspect against another, or use the statement of the already convicted CFF prisoner to establish the guilt of the present suspect. As mentioned already, during the second round of trial, a key witness for the prosecution, who could have shed light on the defence of one accused, Tep Simoly, was never present in court. It is clear that this particular accused had suffered an immense prejudice in the conduct of his defence and of his basic rights as an accused. None of the police officers who recorded the alleged confessions of the accused was present. A request by a lawyer to have three police witnesses present had no follow up. It is surprising that the lawyers themselves did not insist strongly enough on the presence of these witnesses or ask for a clear ruling from the court on this aspect. An Mao is one of the accused who has been convicted in the first CFF trial. A list given under his hands and containing the photographs and names of the accused was produced in court. An Mao was never called to be examined. His absence has deprived the accused of a legitimate opportunity to question An Mao on the circumstances in which the photographs found their way on a list already prepared by him.

Right against self-incrimination

The main evidence against the accused was their confession. Most of the accused stated that the police had subjected them to physical violence. When they were asked to explain why they confessed before the investigating judge in presence of their respective lawyer, they explained that they had no choice. They feared that they would be beaten up again by the police on their return to their place of detention. This line of defence went almost unnoticed. None of the police officers who had recorded the alleged confessions were present in court. The lawyers who represented the accused did not take any steps to secure their presence in court. Whenever there was an allegation of ill treatment by the accused, only one police officer who was present at the trial, stood up to deny the allegation by reading some notes. In addition the questioning by the prosecutor was to get confirmation of the confessions. It is worth noting that the judge stated in his judgement that he was not prepared on the confessions of eighteen of the accused and acted on what he believed was sufficient evidence to convict for the offence of terrorism.

11.  Positive Indications

This largely negative analysis of the report must be taken by the readers with some caution. One can dispute whether these CFF cases can speak for the hundreds of ordinary civil or criminal cases being investigated, heard and decided by Cambodian courts on almost daily basis. For a variety of reasons elaborated at the beginning, the CFF issue remains different, and the likelihood of outside influence in this case from the beginning was greater than any other cases decided in Cambodia after the promulgation of the new Constitution in 1993. One has to understand the fact of involvement of military in the investigation phase in the beginning, and also the possibility of willingness of the government to consolidate its position by using the CFF banner against its opponents. The pressure that the court might have borne on this case might not be the same when it is trying another ordinary case of the day, where nobody is personally involved except the contesting clients.  

Although violations of pretrial rights were massively reported, the authorities expressed that they know the right to liberty, and that they are committed to the procedures of arrest and detention. Once the suspects were taken to the prison, their rights to have the information about the reasons of arrest or detention were recognised in most of the cases. In most of the cases, lawyers were allowed to visit the prisons, if they wanted to consult their clients. Most of the clients were represented by lawyers, although in some cases, the quality of representation was very nominal. Most of the suspects were not tortured once they were taken to the prison.    

The observation of CFF trials gives some other indications also. Except the first day of first round of cases at Phnom Penh, all CFF trials were held in public, notwithstanding the presence of security guards outside the court. Except this first day, everybody could have access to the court without the need to have any prior authorization. Even relatives of the prisoners were granted free access to the court. In addition, at Phnom Penh, a loudspeaker was placed outside the hearing room to enable people to follow the trial in all CFF cases in all these three round of trials. 

Moreover, in all CFF cases, judges generally informed the accused person about their rights (including right to disqualify the judge. If the course of aggressive questioning is to be ignored, the trial judge had been able to show respectful attitude during most of the trial to all participants, including accused persons and lawyers. They were in control of the hearing. In most of the cases, they gave ample opportunity to lawyers to speak and to consult with their clients. In many cases, lawyers had good arguments; they were seem to have questioned about independence of the court, arrest without warrant, excessive pretrial detention, and hindrance imposed on the way of lawyers access to their clients. Ample references to the law and even to international treaties were noted at times, for example, during the second round of CFF hearing in Phnom Penh. Many of the lawyers submitted their briefs to the trial judge after their conclusive arguments were done. This is indeed a good trend. 

In spite of the many shortcomings highlighted above, some accused persons were acquitted and in the case of some, their confessions were not acted upon. If these shortcomings are current features of criminal trials in the Cambodian criminal justice system, it is high time that a rational strategy be developed to counteract these failings. Trial judges also showed some sense of sentencing. For example, during the second round of cases, with regard to the sentences meted out to the accused, on the charge of terrorism which carries a penalty of between ten to twenty years[18] six accused were sentenced to ten years, four to seven years and eight to five years imprisonment. On the charge of organized crime which carries a punishment of between three to fifteen years[19], one accused was sentenced to seven years, three to fifteen years, one to ten years, two to five years and one to three years. However, to all intents and purposes, terrorism appears to be a more serious offence than organized crime. This fact is reflected in the sentences.

Conclusions

In general, the application of fair trial standards with specific reference to CFF cases shows that Cambodia ’s judicial system remains weak in several senses and has to go long way into the future to make it strong.

If these CFF cases are taken as test cases, we find both the pretrial rights and the rights at trial still not adequately institutionalized in Cambodia . These cases are illustrative of the violation of the protection regarding arrest, detention and the presumption of release pending trial. Some cases of torture were noted. Many of the suspects were not informed immediately of the reasons of arrest or detention. Detainees had restricted access to the outside world. Right to communicate and receive visits was also restrictive. Many of these suspects were not promptly brought before the court. In many cases, the right to trial within the lawful period was not respected. In several cases, the right to defence was not adequately guaranteed. In fact, the court appointed lawyers were not serving the suspects as expected of legal professionals. A few of suspects did not have lawyers despite the right to have a legal right to that effect. Bail did not become an important concern for judges who investigated the case. Confessions were taken as principal evidence.    

The right to a fair hearing lies at the heart of the concept of fair trial. It is specified by a number of concrete rights, such as the right to be presumed innocent, the right to be tried without undue delay, the right to prepare a defence, and so on. In none of the trials the CFF judges spoke about exclusion of evidence elicited as a result of torture or other compulsion. The right to be tried without undue delay was affected in more than half of CFF cases. The right to call and examine witnesses was not complied in some cases. The right to a public judgement was recognized; but the judgements were not adequately reasoned. Even the major arguments of the attending lawyers were not responded in the judgement. The cases we monitored placed several question marks on the realization of these rights. None of the trial judges thought about exclusion of evidence elicited as a result of torture or other compulsion. They show that the justice system has to go far ahead in getting these rights rooted in the judicial consciousness. They also show that the court system to grow stronger to deal with the pressures, and other challenges before it.

---

[1] A press release of CFF dated 27 April 1999 reiterates that CFF is a resistant group and was born as a response to unjust situations emerging in Cambodia, especially after March 1997 when a peaceful demonstration in front of the National Assembly had been gunned down by the government forces. The organisation charges the government of corruption, human rights violations, torture, execution, grenade attack on innocent people, electoral frauds, and immunity to the former Khmer Rouge leaders who were responsible for the genocide during 1975-79. It has a plan to continue struggle until Cambodia becomes a state of law, and the government is from the people, by the people and for the people. As such, it defines itself as an anti-government, but not a terrorist organisation. The organisation is said to be registered in the United States as a non-profit organisation and is headquartered in Long Beach, CA 90804 USA.  The police investigation shows that Chhun Yaseth, an American Cambodian, is the top leader of the group since 11 October 1998.

[2] The list of CFF prisoners as at April 2002 has been attached herewith.

[3] Art 1, Law on Punishment of the Acts of Terrorism 1992

[4] Art 2, Ibid

[5] Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period (United Nations Transitional Authority for Cambodia, 1992)

[6] Art 36, UNTAC Law

[7] Art 69 states: “Whoever has provided the means by which an offence is committed, ordered that the offence be committed, or facilitates commission of the offence shall be considered an accomplice and punished with the same punishment applicable to the principal offender.”

[8] Srun Vong Vannak, a member of the opposition Khmer Nation Party (KNP) and the party’s chief of security, was sentenced to 13 years in jail – a decision that took the judge only 10 minutes to reach.  

[9] Pretrial detention of the accused is not to exceed 4 months. It can be extended by 2 months for the purpose of investigation, but only on the order of a judge who gives reasons for extension. Article 14 (4), UNTAC Law.

[10] Article 22, UNTAC Law

[11] Art 38, The Constitution of the Kingdom of Cambodia (1993)

[12] Art 107 of SOC Law of Criminal Procedure provides that if the charge referred to the court is not sufficiently clear, the court may refer the charge back to the prosecutor or investigating judge for further investigation.

[13] See the Attachment – 1 of this Report

[14] If the charge referred to the court is not sufficiently clear, the court may refer the charge back to the prosecutor or investigating judge for further investigation. Art 107, SOC Law

[15] It is said to be another anti-government group and is based in the province of Kratie, and is reportedly led by two Cambodian-French, Ith Suong (former CPP official) and Nguon Soeur (former Funcinpec, who shifted allegiance to the  CPP in 1998).

[16] Arts 128-29 of  SOC Law on Criminal Procedure provides for public hearing  except when it is deemed to be dangerous to public order.

[17] Art 115, SOC Law

[18] Arts 1 & 2, Law on Terrorism

[19] Art 36, UNTAC Law

Over the last one and half year, many trial courts of Cambodia heard and decided a number of high profile criminal cases involving an allegedly US based Cambodian organisation called Cambodian Freedom Fighters (CFF).[1] These cases caught the attention of many human rights activists and organizations for a variety of reasons.  

Firstly, these cases concerned people who had a proclaimed political mission and challenged the legitimate or established political authority of Cambodia to achieve their mission by violent means, and whose organisation had a foreign origin. Secondly, the initial response of the Royal Government of Cambodia to their operations had also been heavy from the very beginning giving a strong image that the human rights concerns of these activists were under intense threat. As the number of those apprehended and arrested people grew, there were further doubts on the integrity of the law enforcement machinery, and concerns were expressed from different quarters that the Royal Government was using the CFF incidents also to arrest and prosecute its political opponents, other than the CFF. Thirdly, the courts which heard and decided these high profile criminal cases also seemed to be under intense pressure of the government which generally manifested a poor record of accomplishment in honoring judicial independence.  

The Cambodia Office of the High Commissioner for Human Rights (COHCHR) monitored most of these trials at the trial courts of Phnom Penh and other different provinces of Cambodia. Taking these cases as test cases, the objectives of monitoring these trials were – to monitor the fair trial standards in action in Cambodia, estimate the accomplishments of Cambodian judiciary in this matter, study the loopholes in the justice process, and present them to the actors in Cambodia’s judicial reform process. This report gives a summary account of the trial observation and monitoring exercises in general terms and our analysis and general conclusion about the issues before hand.  

First, the report gives a synopsis of imputed facts. Then it deals with charges against the accused persons, available evidences against them, the necessary elements of crime to be established, and the international fair trial standards, which are in principle already internalized by the Constitution and other laws. A number of sample cases involving a variety of suspects with different age and background has then been discussed which explain the realities of the situation in the background of the charges made against these suspects.[2] The stage then is ready for the detailed analysis of the pretrial rights and the rights at trial. The report concludes that, while Cambodia has improved its judicial procedures in very many senses, it does not score much in the application of fair trial standards. There are still many shortcomings in the justice process both in the application of pretrial rights and the rights at trial. These shortcomings are not only infrastrucural but attitudinal also.   

1.    Imputed Facts  

On the night of 23-24 November 2000, some 50-strong force of alleged anti-government insurgents attacked several government buildings housing Council of Ministers, Ministry of Defence and Military Base E70 using B-40 rockets, grenades and AK-47s leaving at least four dead and 18 police officers injured. One civilian was reportedly killed in heavy gunfire. Municipal officials identified the attackers as members of CFF which, they claimed, launched the attack to undermine the government’s hold on security in Phnom Penh. Chun Yasith, 43, a Cambodian American living in California, was said to have made the entire plan for the attack including determination of the main targets to be destroyed. Government arrested an alleged ringleader, Richard Kiri Kim, a Cambodian-American member of CFF who freely admitted directing the raid. The anti-communist organisation Cambodian Freedom Fighters admitted plans to overthrow the government. The CFF press release of 24 November, which the UNCOHCHR received only a few days later, claimed that the purpose for the attack were threefold: firstly to test the strength of the Cambodian government, to stop the planned visit by the Vietnamese President and to stop the ‘Vietnamisation’ of Cambodian society.  

In 2001 three separate incidents took place: bombings at the Vietnamese Embassy on April 13, blast outside the Ministry of Foreign Affairs on July 5, and the attack on Funcinpec Party Headquarters August 8.  Hand grenades were used on these attacks, one person was injured in the attack at Funcinpec headquarters, but there were no casualties anywhere. All these incidents were attributed to CFF fighters. Apart from them, various other activities of the suspected CFF members or activists were also made the subject of investigation and prosecutions.  

2.    Charges  

There were generally two charges against the accused in all CFF cases namely the charge of terrorism and the charge of participation in an illegal armed group.  

The Law on Punishment of the Acts of Terrorism 1992 defines acts of terrorism as “those acts of violence which are committed by one sole individual or one or many groups of persons which create panic amongst the mass of the people aiming at causing strong turmoil to the public order and security and affect the political stability.”[3] The Law contemplates two types of punishment for the acts of terrorism. Firstly, offences like kidnapping or detaining people with a view to subversion, extortion of money, revenge, taking of hostage for selling, and other acts of terrorism are subjected to punishment to imprisonment from ten to twenty years. In case if such kidnapping or illegal detention of the person(s) or such act of terrorism was made on a minor person or which caused any victim to death, such offender shall be subjected to life imprisonment regardless of any attenuating circumstances.[4] Secondly, any one who attempts to kill or kills people with prepared intention in the purpose of conducting terrorism shall be punished to life imprisonment regardless of any attenuating circumstances.  

The charge of illegal participation in a group is based on Article 36 of UNTAC Law.[5] This Article states that “any individual, who has taken part in a formal or informal association set up for the purpose of planning one or more crimes or misdemeanors against person or property, if specific acts of preparation of these offenses have taken place, shall be liable to a term of imprisonment from three to fifteen years.”[6]  

In a few cases, the charge of complicity under Article 69 of UNTAC Law [7] was also made. Similarly, illegal possession of weapons was also prosecuted. But the basic issues in all these cases were terrorism and organized crime.  

3.    Trial  

In June 2001, the first trial of 32 persons suspected of involvement with the CFF and the 23-24 November 2000 attack, was held at Phnom Penh. Two persons were acquitted, while others were sentenced to prison terms ranging from 3 years to life imprisonment for conspiring terrorism and/or organized crime. Chhun Yasith, 43, the leader and Thoang Samean, 50, were tried and convicted in absentia. Most of the convicts appealed against the conviction.  

The Phnom Penh Municipal Court tried a second group of 28 CFF suspects in October and November 2001. The trial was held, as before, at the Supreme Court building due to the large number of suspects and the limited infrastructural capacity of the Phnom Penh Municipal court. Two persons were acquitted and others were convicted to imprisonment ranging from 3 to 15 years. All convicted prisoners moved appeal to the Court of Appeal through the Phnom Penh Municipal Court.   

The third round of trial of 23 accused persons, three of which were tried in absentia, was held in February 2002. They were said to be taking part or involved with the bombings at the Vietnamese Embassy, Funcinpec Party Headquarters and the blast outside the Ministry of Foreign Affairs. The trial was held at Phnom Penh Court building itself. The court convicted 19 suspects including one who was tried in absentia. It ordered reinvestigation of three of the suspects including two of the suspects who were tried in absentia as the trial judge thought that the investigations of the charge against them were not complete. Among those who were convicted, one person was subjected to life imprisonment, four persons were sentenced to a term of 20 years, and the rest were sentenced for terms, which ranged from 8 years to 15 years. Only one of the three suspects whose cases were subjected to reinvestigation was released on finding innocent.    

Trials were also held in Battambang, Siem Reap, Banteay Meanchey and Kampong Cham provincial courts of smaller number of suspects locally arrested. Among the trials held outside Phnom Penh, the Battambang trial was the biggest one involving 18 suspects, none of which were found innocent. By the end of April 2002, the number of those who were prosecuted crossed 100.  

4.    Evidences  

Various types of objects were produced at the court as evidences by the prosecutor to prove the charge. At the first round of trial, they included 43 AK 47 rifles with 740 bullets, 1 B40 Barrel, 20 hand grenades, 10 AK magazines, 1 Compaq Computer, and other materials like hand phones, CFF flags, badges, medals, CFF documents and IDs etc. Evidence produced in the court during the second and third round of trial in Phnom Penh included a big CFF flag (which bears on its surface a number of signatures of different unidentified persons), some small table flags, CFF membership cards, one or two military (camouflage) uniform/s and some books/diaries.  

The sort of the evidence presented during all the CFF trials held in the provincial courts was not different in any sense. All these materials were presented during the hearing. There was a general problem of relating these objects with the accused and how they proved the suspects gui1lty. In some cases, there was no linking of these evidences with the involvement of the suspects in the case.  The prosecutor was relying not only on the evidential value of various pieces of evidence, like ID’s, pictures seized from CFF leaders and documents seized from the Computer of a CFF leader, but also on written statements given by the suspects before the police, prosecutor or investigating judge. Most of these written statements were not confirmed during the trial. A general type of inadequacy was thus seen in proving the elements of crime as suggested above.  

5.    Elements of Crime to be established  

The charge of terrorism will be reasonably proved when all the following elements are present and it is proved that the accused are involved in all the elements which are following:  

·       There must be evidence to show that the accused attempted to kill people or did in fact kill people. It must be proved that the accused did an act or participated in an act that led to the death of one or more persons. It must also be proved that the accused had the intention to kill. An attempt exists when the accused has committed acts which go beyond preparatory acts with the intent of committing an offence but fails in his venture owing to circumstances beyond his control in that he did not himself put a stop to his venture.  

·        The accused must have had the intention and purpose of conducting terrorism. It is not sufficient for the accused to have attempted to kill people or actually kill people. It must also be shown that the accused did the killing or attempted to kill with the intention and purpose of conducting terrorism. In order to find out what is terrorism Article 1 must be referred to.  

·    Terrorism consists of acts of violence. It must be proved that the accused committed in that they participated actively in the commission of these acts of violence. What amounts to acts of violence is for the judge to decide on the facts of the case.  

·      Acts of violence consists in creating panic amongst the mass of the people and are aimed at causing strong turmoil to public order and security and affect political stability. Once the judge is satisfied that the acts of violence were perpetrated he must go on and find out whether from the evidence it can be said conclusively that these acts of violence created panic amongst the mass of the people and aimed at causing strong turmoil to public order and security and affected the political stability of the country.  

·        All these elements of the offence must carefully be analysed and the evidence in support of each of these elements must be determined. If there is no evidence to prove one or more of these elements then the accused must be acquitted.  

Apart from them, there are other issues regarding the offence of “organised crime.” To confirm the charge of organised crime, the prosecution must be able to prove that the CFF is an ‘association’ as mentioned in Art 36 of UNTAC Law. In other words, it must prove that the intention was to topple the government by using violence. If CFF is not an ‘association’ as the said provision contemplates, can the group of people who took part in the (preparation of) attacks be considered as an (informal) association as mentioned in Article 36? Is membership of CFF sufficient for a conviction? Article 36 mentions ‘taking part’ in an association which requires more than just being a member. What if the perceived ‘members’ were not aware that they were members of CFF or did not know about the purpose of this association? Similarly, what is the meaning of ‘taking part’ in the offence? Does for example transportation of radio-communications or providing a meeting place for the benefit of CFF/the above (informal) association, fit in this definition? No, unless there is a knowledge of the criminal intention of CFF/above (informal) association. The same question is for ‘complicity’ to acts of terrorism.  

It is important at this stage to emphasize these elements because although, so called leaders of CFF quickly claimed responsibility for leading the attack, but it was still suggested that the attack was politically framed up. Undoubtedly, many people suspected that the government set up one of the movements and controlled the other through the infiltration of military intelligence. Insecurity situations have been created in the past to divert attention of the people, for instance, the arrest of Srun Vong Vannak by linking him to the murder of his brother in law, Kov Samuth, March 1997 grenade attack in front of the National Assembly, the July 1997 coup, grenade attack in September 1998 at his Phnom Penh residence which was used as an excuse to crackdown opposition demonstration.[8] So the argument goes that the incidents were used as a pretext to hunt down opposition activists and politicians, Funcinpec-affiliated generals, and former Khmer Rouge commanders. General Mul Roeup was responsible for putting up two lists of more than 200 suspected terrorists linking to CFF prior to the incident.   

It is thus not out of place to quote the following paragraph from the judgement of the first round of CFF cases:  

Any accused, whose name and designation are stated in the document on the organisational structure, and which bears thumbprint and acknowledgement of the mastermind, Kim Kiri Richard, should be considered by the court for imposing punishment in accordance with the law. However, those accused who were arrested by the competent authorities but whose name and designation are not available in the document on the organisational structure of the mastermind, Richard Kim Kiri, should be considered for punishment according to the law only if their involvement is supported by strongly compelling and consistent evidence which prove that they certainly have participated in the offence.   

6.    Fair Trial Standards  

The Constitution and several other laws of Cambodia guarantee all accused with both pretrial rights and rights at trial in order to accomplish what is know as fair trial. Implicit in the concept of a fair trial is the independent judiciary and the principle of equality of arms where the defence and prosecution are given equal status, equal rights and equal opportunities to present their case. The following standards are suggested as compulsory requirement in Cambodia:  

·         Pretrial rights include the right against illegal arrest or detention, the rights of the people in custody to information, the right to legal counsel before trial, the right of detainees to have access to the outside world, the right to be brought promptly before a judge or other judicial officer, the right to challenge the lawfulness of detention; the right to trial within a reasonable time or to release from detention; the right to adequate time and facilities to prepare a defence; rights during interrogation; and the right to human conditions of detention and freedom from torture.  

·         Rights at trial are the right to equality before the law and courts; the right to trial by a competent, independent and impartial tribunal established by law; the right to a fair hearing; the right to a public hearing; the presumption of innocence; the right not to be compelled to testify or confess guilt; exclusion of evidence elicited as a result of torture or other compulsion; the prohibition of retroactive application of criminal laws and double jeopardy; the right to be tried without undue delay; the right to defend oneself or through counsel; the right to be present at trial and appeal; the right to call and examine witnesses; the right to an interpreter and to translation; the right to a public judgement, ands the right to appeal.  

·         It is important to note that the Constitution assigns the Kingdom of Cambodia to recognise and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the Covenants and Conventions related to human rights, women’s and children’s rights. Needless to say, this provision supplements the Cambodian legal regime with existing international human rights standards of fair trial as well.  

7.    Some Instances of Hearing  

By April 2002 more than one hundred alleged CFF suspects were already tried by different trial courts of Cambodia. Although the trials took place in different courts, the cases often had common patterns. There was limited focus on most critical elements of criminal liability – i. e., an act was not wrongful unless accompanied by a wrongful state of mind, or as a general proposition, one cannot be convicted for mere criminal thoughts; one must normally do something towards bringing those thoughts to fruition. Some of the sample cases are discussed here for the purpose of this report.  

In June, the first trial of 32 persons suspected of involvement with the CFF was held. The first accused who was brought before the court was Richard Kiri Kim, 37, the General Secretary of CFF. As soon as the trial judge read the charge against him, Richard complained that the court was not independent, and that he be released immediately because he was detained in excess of six months,[9] implying that failure to comply with this rule enabled the accused to apply for immediate release.[10]The trial judge rejected these contentions on the ground that it was for the investigating judge to release the prisoner on this ground. He asked instead: “Please tell us when did you create this armed gang, and what was your purpose?” In the course of proceedings, he replied: “… [M]y group is a political group, which held meetings along the border and in the Long Beach, California in 1999. These meetings were legal, and held with permission from the USA  … This is a political organisation, a legal one, not an armed group …” Richard said he was in USA during 1990-93 as an engineer, and after that for about eight years, he worked with an NGO in Cambodia, built schools and helped children. In other words, he was neither a terrorist nor he had any terrorist background.  

Richard said he was arrested without warrant. He referred that he had not to that day seen the judge who had investigated his case: “How can my lawyer reach the investigating judge? Since I have been detained, I have never seen, heard or met the investigating judge. … How can he make a decision when he has never contacted me up to this point?” There was no comment on that by the trial judge. Richard was asked about the information on the Computer confiscated from his house. Some evidence presented at the court – i. e. ‘badges’ of rank and file, brochure (pamphlets/booklets), organisation chart, etc – which the judiciary police said were printed out from the same Computer. His answer was that he cannot speak anything on this matter unless he has been allowed to see and make sure if it has the same information, or that they have been changed. The judge said: “You have no right to see the Computer.” Most of the questions which the trial judge and attending prosecutor posed at him during the hearing were directed at securing more information about CFF and its departments, military profile, hierarchy, and similar other details. At one stage the judge said: “Stop talking about evidence. Turn to terrorism of 24 November. I ask you what was your role on 24^th.” He said he was asked by Chhun Yaseth, the Commander, to be the commander for the operation just two hours before, for which he was not prepared. But later he conceded to take the charge. When the prosecutor asked if the weapons shown on the exhibit table belonged to the CFF, he said he did not know about the weapons as the responsibility for military operation was vested in Commander in Chief and other commanders.   

The newly appointed lawyer for the suspects, Puth Theavy, wanted to know the names of other six persons in the central committee of CFF apart from Chhun Yaseth and Thong Samean. Richard was upset with this question of the defence lawyer appointed by the court. He rejected to answer. Again he inquired if CFF has any relation with the movement led by It Soung of Khmer Serey (Free Khmer). Richard said there is no relationship of any sort. But as a whole, it was not clear how the defence lawyer consolidated the defence of Richard  Kiri Kim by asking these questions. Finally, the court imposed a life sentence on him.  

Chey Vandy, 39, another accused during the first round of trial, also rejected his earlier confession given to the investigating judge and said that it was done under threat. He said he did not join the CFF at all. The confused prosecutor said aloud: “On what evidence Chey Vandy was arrested? His name is not in the organisation chart. I want the authority to clarify the relationship with CFF and Chey Vandy …” The policeman who arrested him, and who was present at the court told the lawyer of the suspect:  “he was in the list of people we were to arrest.” The police assumed that since Chey Vandy had held no clear position, he must have been in the combat force of CFF. The judge asked where he was during the operation in Phnom Penh. He replied: “I was running a motto at home. During the fighting I was sleeping at home with my family.” Chey Vandy was convicted of organised crime and served with the imprisonment of 3 years.    

The case of Chhun Hourng, 46, during the first round of trial can be another sample case. On being asked at the open court why he joined CFF, Chhun said his idea was to make an association. Yum Neam, his firiend who briefed him about CFF just did it in that sense. In the confessionary statement that he gave to the investigating judge of Kampong Cham, wherefrom his case was transferred to Phnom Penh, he stated that he was in CFF since 1998. He also had said that he held a CFF position at Kampong Cham, and he had his office at his own house. He further pointed out:  “The organisation structure at the district level was not made by me; it was made by Prak Porsa who worked as a rubber plantation filed at Peak Chan. Prak Porsa said he had sent the names to Phnom Penh already. Park Porsa was my Deputy…”  

Chhun identified the document that he had signed before but said that the statement is untrue. He further said that he did not know about the movement of CFF. What he knew was that Richard Kim Kiri was in charge of the organisation which aimed at the development of Cambodia. He further said that he received no letter of appointment. Chhun Hourng was also convicted of organised crime, and was sentenced for three years.       

The Phnom Penh Municipal Court tried a second group of 28 suspects in October 2001. Many of the same concerns were reported for this second round of trial with the exception that the trial was public from the start.  

Sok Som, 23, farmer, was born in Kandal province. He was arrested on 24 November 2000 by military police. He used to work at the factory. He said he did not know about the incident.  At the time he was arrested he was in the house of Tuol Key. He did not know that the house had some weapons inside. On 23 November at 6:30pm, Phany, the house owner, had told him to bring food (two parcels of food) for 30 people at a hill in the rice field.  He told that if he did not agree he would be shot dead. He said they pointed the gun at him and he went home to sleep because they ordered not to talk. On 24 November at 7:00am, the authorities arrested him and Phany.  He took the authorities to see 30 persons and found 3 weapons. The authorities informed Sok Som was arrested at the house of Phany who is the sister-in-law of Sok Som.  “This person showed the place where ‘2 Ak 47’ were hidden.  Answering to the question of his lawyer, he pointed out that when Khoeun the person who brought him to Phnom Penh on November 23, a day before the incident, he did not tell him anything about CFF.  

The Prosecutor interrogated him with a number of questions. He concluded that Sok Som came to work as the factory worker and he was asked by Khoeun for that.  On 23 November, Khoeun brought him to Phany who later asked him to bring food to a force of 30 persons.  Although he claimed that he was threatened, it was clear that he brought the food voluntarily.  This is a pretext.  It cannot be taken into consideration. He provided food for the armed group. With these arguments, the prosecutor gave his conclusion that Sok Som was involved in the group of terrorist. He further said that the person was involved in terrorism even though he was not in the CFF ‘structure list.’ Thus he affirmed his charge of participation in illegal armed group with the intention of causing chaos, instability, and terrorism.  

Lawyer of Sok Som, Chum Sovannaly, argued that the incidence was organized by CFF and Sok Som was not involved in the acts because on 23 November at 7:00 am, he came from the lake, Ponhea Leu, Kandal.  He came to Khoeun’s house in Tuol Key, Phnom Penh.  Khoeun brought him to work as the factory security guard.  It is not strange that poor people look for employment. He rested in Khoeun’s house for a night as a relative.  At 8:00pm on the same day, Sok Som was asked to bring the food.  It was normal to do this sort of job when somebody is a guest in the house of other.  He has never known CFF. He was intimidated to confess. He was arrested on 24 November and he was brought under legal detention only in 7 December 2000, or 13 days after the arrest. This violated the procedures specified by Article 13 of UNTAC. There is no evidence which shows that he is an associate of the CFF. There is no witness to testify. He was arrested in the house where he was a guest; it was not a case of flagrant délicto. Additionally, the lawful period of pre-trial detention was exceeded. The lawyer said that he had submitted a petition for his release; there was no response from both the trial judge and investigating judge. This violated Articles 21, 22 and 14 of the UNTAC law.  

Sok Som was convicted both of organised crime and terrorism, and was sentenced to a term of five years. The decision of the court did not respond to his statement at the open court that he was told to bring food (two parcels of food) for 30 people at a hill in the rice field, and that he would be shot dead if he did not agree to comply.  

Similarly Top Chea, male, 22, construction worker and farmer, was also tried during the second round. Top Chea accepted the statement of confession that he gave to the Military Police and Investigating Judge.  He said he was told to work as a construction worker for better salary in Phnom Penh by a person called Nuon Nath. As such, he came to Phnom Penh by taxi with Chea Kim San and Nuon Nath.  He stayed in a wooden rental house. Top Chea told that there were 3 males in the house, there was no one else. The house owner and his wife were there.  “At 2:30am, I was waken up and led to the railway station. They pointed the gun at me.  If I did not take the gun I would be shot,” said Top Chea. He did not know how many other people were in the force and how many were led at gunpoint.  He was threatened and he shot on the air several times. He went out of the railway station from main entrance with a full magazine and an AK 47 rifle.  He saw yellow and red bans and he threw it away. He denied that an unknown man told him to work as a U.S. soldier to get USD 200 every month. He told that he did not know any such thing.   

The prosecutor however pleaded that Top Chea came to Phnom Penh and stayed in the railway station. Nath brought him with other associates and stayed on the same house.  The house owner made the arrangement for it.  At night, 12:00 am, his group brought weapons.  Chea Kim San and Nuon Nath received weapons and then walked out. He admitted receiving a gun and walked out of the railway to open fires 4-5 times. He was arrested at the place of incident. The prosecutor referred to the fact that Top Chea acknowledged being cheated out but he argued that he had intention to participate in the battle. If he did not have intention, he would have escaped right away. He received the weapon and fired the authorities.  This, the prosecutor argued, showed his participation in terrorism. Lawyer of Top Chea, Chhor Lithay, however, argued that Top Chea was arrested at 7:00 in the morning.  He came to Phnom Penh for a job and he did not know what CFF was.  

Top Chea was also convicted of both the offence of organised crime and terrorism, and was sentenced for ten years term of imprisonment.  

Phy Sovann, 40, businessman, was arrested on 24 November 2000. He came to Phnom Penh on 22 November with a man named Kdeing who he knew during the SOC (State of Cambodia) time as a taxi-driver.  Kdieng asked him if he wanted to come to Phnom Penh.  “I had no job to do.  [As such,] I decided to come with him,” said Phy Sovann.  At 4:00 pm, he arrived in Phnom Penh, the car got flat-tier, so he separated with Kdeing at the taxi station.  On 23 November, he walked down to Ta Khmao to get a bus.  His friend asked him to help look for a car.  “I did not ask where his residence was.  I just went with him.  I was taken to a place near Neak Van Pagoda. Some people were there. They had drink until 12:00am.  I was so sleepy and I went to bed.  At 2:00 a.m, people called me and I went with the group. If I did not carry the B-40 gun, I would be shot.” said Phy Sovann.  

The prosecutor said Phy Sovann recognized that he traveled from his house on 22 November. He stayed in the railway station on 23-24 November. After receiving top of B-40, he walked after the group.  He stopped and went to hide in the wagon.  This showed he was in the armed group because he carried out terrorism in the organized armed group. The prosecutor also pointed out that he was arrested at the place of incidence on 24 November.  

Puth Theavy, the lawyer of Phy Sovann, argued that according to the charge sheet the accused left Kampong Thmor for Phnom Penh with Pheap. On 22 November 2000, Pheap asked him to help to buy a car for him. Until night on 23 November, the purchase of the car could not be done. He went to have a drink and then went to Pheap’s house where some people were drinking local liquor. He was drunk; he was not in a good sense. He carried bayonet of B-40 because of fear. They said if he did not carry, he would be shot dead.  When he walked for 200-300 metres, another person came and took that top of B-40. Then he came back to sleep. He was arrested in the morning. He was not able to operate the armed group.  How can the client create the armed group within one night and one day? To create an armed group, they need time, plans, and weapons. He was put at the gunpoint.  

Phy Sovann was also convicted of organised crime and terrorism and was sentenced for a term of seven years.  

The third round of CFF trial in Phnom Penh has some other stories. A couple of cases may also be discussed at this stage. Seang Hay, 51, who was charged of organised crime and terrorism in the context of the failed coup of November 24 and bombings at the Vietnamese embassy and Funcipec headquarters and the blast outside the Ministry of Foreign Affairs can be taken as an example. The charge read against him at the hearing did not look specific. Evidence produced in the court included a big CFF flag (which bears on its surface a number of signatures of different unidentified persons), some small table flags, CFF membership cards, one or two military (camouflage) uniform/s and some books/diaries. Included in the files were some faxed documents from the United States which, among others, mentions the name of Seang Hay, who was being treated as the most important accused in the group. These evidences, however, were not enough to prove that he was the Commander of the CFF in Thailand as stated by the Prosecutor, and had ordered the explosions/blasts there. Additionally, he also rejected the confession given to the police and the prosecutor, but accepted some of the details including the fact that he was the second bureau chief of the CFF operations in Thailand. Seang Hay was convicted of both terrorism and organised crime, and was committed to the prison term of twenty years.  

Most of the suspects seemed to be the people without sophistication. All of them said that they were forced to confess (some even dared to say that they were beaten up at police custody, and that even the statements given to the prosecutor were taken either in the presence or in close range of police who accompanied them to the court). For example, Ek Chamroen, Ri Borann and Khieu Radoeun, who were accused of planning the attack on the Vietnamese embassy denied the charge in the beginning, but later gave admission on some of the points raised by the court. Suspects Keo Tak, Neak Salim, Cheang Sophal and Phlong Bunthouen all testified that they were not directly involved in the grenade attacks on Phnom Penh’s Funcipec Headquarters, National Assembly and Ministry of Foreign Affairs. But later, after repeated questions and answers, Keo Tak and Neak Salim came to concede that some strangers paid them some money to recruit rebels and send their names to the CFF office in Thailand. Suspect Sri Sren who flatly rejected to corroborate any statement that he gave before to the police, prosecutor or investigating judge was asked by the judge not to be ‘stubborn’ and confess right away.  

The entire thrust of the court was to insist on reconfirmation of the statement of the accused in the dossier. Except in the case of the Cambo-American accused Sao Chum Gilbert, and other two persons named Sok Thy and David Chan, all of the suspects were made to accept some part of the statement they gave to the police or to the prosecutor implicating themselves. Gilbert denied of any involvement in the CFF attack, the bombings of Funcipec Headquarters, the Ministry of Foreign Affairs and International Cooperation or the Vietnamese Embassy last year. Gilbert was arrested in September 2001. Like Gilbert, all alleged CFF members standing trial with him were arrested in September and October of 2001. That means they all were arrested after 9 or 10 months of the fighting of November 2000; and the prosecutor till the end of the trial submitted no evidence to show that they took part in the fighting. There was little direct evidence linking the current defendants with the November 24, 2000 fighting.  

Curiously enough, the judge ordered reinvestigation of the case of Sok Thy, who was one of the 20 suspects brought for trial. He also ordered reinvestigation of the cases of Peter Leng and Chhun Chhoung, and asked to trace out their background in particular. Both of them were being tried in absentia and reportedly live in the United States.  

Several cases were heard outside Phnom Penh as well. The Battambang Provincial Court heard cases of eighteen CFF suspects in March 2002. Two accused were not represented by any lawyers. Even during the trial, they were requesting the court to provide one to plead their defence. But there was no response. The material evidences like CFF flags, booklets, guns, etc were produced in the court. The guns, ammunitions and flags, etc which were confiscated and exhibited at the trial room were said to be confiscated from the accused Chan Vorn, Chea Chhoy, Chhan Chuob Sambath, Suy Bour and others. They however counter-claimed that these evidences although confiscated from their possession belonged to the local military, and were still with them, as they had not surrendered them to the military as ex military men. Only two suspects – Sin Soth and Some Bin – confessed at the court. All others denied the written statement given to the police or prosecutor. At this the judge asked the suspects to produce evidence in support of their innocence. He also said that even if it is assumed that the police forced them to confess, what forced them to repeat the confession at the office of investigating judge. The judge was seen consulting the Phnom Penh Court’s CFF judgement of February 2002. No one was released by the judge on any grounds including lack of concrete evidences. All were convicted for 13 to 18 years of imprisonment.  

On 5 April 2002, three more CFF suspects were convicted to (suspended) imprisonment sentences by Siem Reap Provincial Court. Meas Savoeun, the Siem Reap suspect, stated during the trial that the police did not tell him why he was arrested. Later, he was told that he was arrested because his name was on the CFF list. The judge replied by asking him how many times he had been interrogated. He added that he had to prepare himself to “find evidence during the trial”. Lek Bunnhean, another suspect being tried together with him, did not reply on the question about awareness. The judge did not ask about it again. Mav Srei, the third accused, had not been arrested, nor pre trial detained.

Prosecutor started to accuse all these three suspects together during the trial. On August 10, 1998, Lek Bunnhean would have been recruited by CFF in order to disturb the government. Lek Bunnhean is a former police official and is currently a brothel owner in Osmach. In 1997, a Khmer/US citizen would have approached him in Osmach in order to join the CFF. In 1999, Lek Bunnhean would have stayed in the house of MS in Siem Reap, who also would have been involved in CFF. On September 23, 2000, Lek Bunnhean would have been in Phnom Penh, where he got some money from the government. Meas Savoeun would have been working as a military official in RCAF Region 4 (around 1000 subordinates) in Siem Reap, as a cover or a mean for CFF activities. He would have been complaining about a lack of salary towards his military commander around that time. Meas Savoeun eventually got salary from Chhun Yasith in 2000. Chhun Yasith would have said to him: strengthen your forces; you will get money from me. Mav Srei joined the CFF as secretary of Chhun Yasith. In 2000, Meas Savoeun got money from CY. He would have get respectively 1000, 500, 200, and 200 US $ from Chhun Yasith. Also, a gun has been found in the house of Meas Savoeun (against art. 36 UNTAC). There was a gun lying on a table in the courtroom. The judge stated that Meas Savoeun would have gained the gun by/for the purpose of CFF. Mav Srei (Mav Srei) would have obtained 650 US$ and 300 Bath from Chhun Yasith. 
 

Lek Bunnhean asked the Judge that in 1997, a US person called Hok Srey, asked him to set up an organization. He said he agreed as he had nothing else to do, and he was under the impression that it was an appropriate plan. Yes, he did sometimes come to Siem Reap to see Meas Savoeun; the latter was involved in the development of the organization as well. Lek Bunnhean was aware about the plan of Meas Savoeunto send forces to Kratie. He did not know why. Lek Bunnhean said that he did not see Chhun Yaseth in Thailand; he phoned with Chhun Yaseth sometimes. Lek Bunnhean did not reply on the question from the judge whether he received weapons from Chhun Yaseth.   

Judge asked Meas Savoeun whether he met Chhun Yasith in Thailand; why he was appointed as a military official for Region 4 and what he did with US $ 1000 US he got from Chhun Yaseth. He said only “no” on the first question.  

Mav Srei stated to the judge that she has been in touch with Chhun Yaseth by phone a few times. Lek Bunnhean knew nothing about these contacts. The judge said: “so later you realized that your activities were not good and you confessed to the government…”. She confirmed this statement. The judge stated (but no evidence presented) that Mav Srei received money in August and September 2000 (total US $ 450). Also, the judge said that Meas Savoeun received about 27 phone calls from Chhun Yasith.  

Meas Savoeun stated that he got the gun from the former governor of Siem Reap and that it had nothing to do with CFF. There was no evidence provided linking the gun to the case. He stated to the judge that he never met Chhun Yaseth in Thailand. The Judge asked why he had been appointed as a military official and involved in CFF. He also asked what he did with the money he got from Chhun Yasith. There was no reply from Meas Savoeun on this. The Judge stated to Meas Savoeun that he received 27 phone calls. But no evidence was presented at trial about this. Similarly, there was no evidence about the transfer of money, and the shopkeeper or his concerned staff was not present at the trial.   

Mav Srei and Lek Bunnhean admitted that they were involved in CFF initially, but that as soon as they realized that they were involved in illegal activities, they stopped collaborating with the CFF people. They said they did not realize that it was illegal at that time; they just thought that they were doing some business/building up an NGO. They had transported some phones, or had made some plans for doing this. They were not clear when they stopped doing it. Later during the trial they said that they stopped their involvement in 2000). Mav Srei stated that she never received money from Chhun Yaseth, but she agreed that she was in touch with him (temporarily).  

The prosecutor said that it was hard to find evidence in her case, but because she was accused of being involved in acts of terrorism, it was easier to find evidence. So, if her name was on the list, she was already assumed to be involved. Other CFF suspects/convicted informed the court about her involvement, but they were not present at the trail. If she was not involved with CFF, then why did she contact Chhun Yasith?  

Lek Bunnhean stated that Meas Savoeun never came to Osmach. He said that he met Mav Srei there one time, but that he did not know that she was the wife of Lek Bunnhean.  But Prosecutor stated that Meas Savoeun came many times in the brothel of Lek Bunnhean and that Mav Srei went to Thailand at least 20 times, 2 times accompanied by Meas Savoeun. Again there was no evidence or witnesses.  

Lek Bunnhean and Mav Srei agreed again that they joined CFF, but that they did not realize it was CFF of this sort. As soon as they realized they stopped their involvement with it. The judge said that Lek Bunnhean and Mav Srei accused Meas Savoeun from persuading them to join CFF. Only Mav Srei stated during the trial that Meas Savoeun came to Osmach to persuade her to join. Lek Bunnhean did not reply on this (he only said during the trial that he met Meas Savoeun in Siem Reap). Meas Savoeun denied everything. He said to have never been involved in CFF activities. He said that he did not know Lek Bunnhean and Mav Srei and that he admitted the crimes because of torture/intimidation committed by police and investigating judge.   

The court clerk read aloud some statements during the trial. They included statement of several co-suspects from Phnom Penh and shop owners of shops to which money was transferred and also reports on interrogations of the three suspects. Witnesses were absent. This prevented the accused from presenting proper defense on the contents of these statements, credibility of witnesses and the way in which the statements were obtained. Only Lek Bunnhean, Meas Savoeun and Mav Srei were, as being suspects, were present in the trial room. They accused each other in the statements they gave.  

Meas Savoeun stated that Lek Bunnhean persuaded him to join CFF, but they did not clearly persist in their statements during the trial (apart may be from Mav Srei). Prosecutor stressed that Lek Bunnhean and Mav Srei later realized that they were acting inappropriately. Prosecutor also states that Meas Savoeun was on the CFF list from the beginning. Lek Bunnhean and Mav Srei were not, so initially they were not prosecuted. Later, the court changed its mind, because they might continue illegal activities if not prosecuted.  

Lawyers had questioning of their clients and other suspects during the trial. In their pleas, they mentioned some procedural irregularities but stressed the lack of evidence in particular. They emphasized that the involvement with CFF is only found out from the statements of Lek Bunnthean and Mav Srei, which were vaguely confirmed during the trial. Meanwhile, the judge seemed indifferent about their arguments. He was busy adding something on the pre-written verdict with a red pen. He did not seem to listen to the lawyers. The three suspects got the last word in the trial. The judge did not take time to think or further make up his mind. Obviously, the verdicts were pre-written and sentences were decided before he started hearing.  

The case of Im Yoeu tried by Kampong Cham Court is yet another example. Im Yoeu was arrested on October 27, 2001 by Military Region – 2 which later sent him to provincial police of Kampong Cham. In the confessional statement he made to police he said he had joined CFF movement on the persuasion of two of his friends. One of the these two friends identified himself as a representative of CFF leader. He was appointed as commander of Division – 1.  

In September 2000 at Vat Than pagoda in Phnom Penh, he met with four other persons who knew him when they met each other at Funcipec office in Phnom Penh in 1998. He tried to persuade him to join CFF. There, he also met another man who identified himself as special representative of CFF leader. They all had a chat at pagoda for a while about mobilisation of forces. Im Yoeu was told that if he wished to meet the CFF leader, he would be brought to Thailand with a prior appointment made through special representative at Poi Pet. In Early September 2000 he together with two other men went to Poi Pet and met the special representative Ly Hov at a local hotel. Next morning, they were taken to a pagoda in Aranh province, Thailand, where he met the CFF leader. Before returning back to Phnom Penh, each of them was given 1,000 Baht. Back at Phnom Penh, when they met the CFF representative, he scolded them for visiting the CFF leader without taking his prior permission. Since then the representative never contacted him until the November 24 fighting in Phnom Penh. Three days after the fighting, Im Yoeu left for Chamkar Leu district and stayed there till he was arrested.  

In his statement to the investigating judge he said that the confession he made to police is not coerced. He also said he had joined CFF but had never conducted activities in connection with CFF. He denied participating in the November 24 fighting. During the trial as well he repeated the same statement. Except his first wife who was brought to the court, and had no knowledge of anything about CFF and, no other witness were called or appeared during the trial. After an argument from the lawyer that the case lacks evidence in support of the charge, the judge dropped the offence of organised crime, but convicted him of the charge of terrorism. He was convicted and sentenced for 10 years in prison. In fact, his hearing finished in about an hour in the absence of witnesses and other incriminating evidence.  

The case of Nuon Simoeun may also be discussed. Nuon Simoeun told the court that a man named Nol came to visit his house in June/July 2000. He asked Nuon Simoeun to do a job for him, and promised to give money, which Simoeun desperately needed for his treatment. Nol gave 20,000 Riel to him at that time, and lent another sum of 1000,000 after sometime. Nol visited Simoeun sometime later with another man named Phon when he was at a clinic going through treatment. After he recovered and came back to the house, Phon again visited Simoeun, and asked him to write a piece of paper that he has 375 soldiers under his command. He did not want to write such a thing. Then Phon remarked that he will get some money if he does it. Simoeun wrote a mock number of soldiers and demanded US $ 2000 and one hand phone. Because he was sick and could not travel to collect money from Phon, he asked Kosal to get the money from Phon. Kosal left the village for three nights and returned with $ 40 and gave that money to Simoeun who in turn gave five dollar to him for having done the job.  

In August 2001, Simoeun made a trip to Phnom Penh to get more money from Phon. He did not know Phon’s house but they both set a place at coffee shop to meet. Phon took Simoeun to his house, told Simoeun to write about the soldiers under him and gave US $ 400. Simoeun said when he got money from Phon he used that money to pay cost for treatment and stayed home without undertaking activities in relation to CFF. He said he had no contact with Nol and Phon until he and Kosal were arrested.      

In his separate statement, Kosal said Phon took him to meet an unknown man, told him to sit and drink coffee and gave him US $ 50. Kosal changed 10 of 50 dollar for travel expenses and gave 40 dollar to Simoeun who gave him five dollars.  

The judge read a confession Kosal gave to police that he and Phon went to Thailand, met and shook hand with a man, Ghin, who inquired about our forces. During their stay in Thailand, Kosal heard Ghin wanted to send CFF flag with Phon back to Phnom Penh, but denied knowing that whether the flag would be sent upon return from Thailand. During the trial Kosal did not talk how and with whom he came back from Thailand, but said he received US 50 dollars from Phon.  

The lawyer presented the prescription of Simoeun’s physician as an evidence that he was in the hospital and not able to undertake activities related with CFF or mobilisation of combatants under his command in the past. He also argued that there was no strong evidence and no witness testified that he was involved with CFF. All that the prosecutor had was the confession made to police and gendarmes. He also said that his client had never had any contact with the provincial military of Kampong Cham. No arms were found with the accused and there was no evidence that they used any arms. The lawyer also argued that the amount of money his clients received cannot be used to mobilise or prepare armed forces. The whole objective of his client was to find some money for his treatment so that he could live longer. The two names were not in the computerised list seized by the police.  

The prosecutor argued that the paper showing the numbers of soldiers and request for money and hand phone prove that they organised a group of people intended to be against the government. One of the two (Kosal) went to Thailand, met with CFF involved people, and received money and if they did just for money, why they did not confess to authority after they got money.  

The judge decided to sentence Nuon Simoeun for two years in prison and Soeung Kosal for five years in prison under Art 36 of UNTAC Law.  

These sample cases generally represent the sort of CFF cases tried in different courts as of today. In addition to these sample cases, mention must be made of people tried in absentia. Chhun Yaseth, who was believed to be the President of CFF, and Thong Samean, General Secretary, were tried in absentia.  According to the judgment of the first round of cases, Chhun set up the overall principles and plan in order to overthrow the legitimate government of Cambodia and the throne. He carried out the propaganda activities to persuade and mobilize forces and associates of the lower ranks to carry out acts of subversion. He organised the network, persuaded the people to serve the armed group of CFF, and bestowed medals to the associates. He collected and provided fund, arms and equipments. According to the judgement, this accused is the one who drew up the itinerary plan to attack Phnom Penh together with other associates of the lower rank including determining the main targets to be destroyed. The court said that he gave the order to attack on November 23-24 from Thailand on telephone. He was convicted of organised crime and complicity in terrorism with the life sentence.  

The activities and commission of offences carried out by Thong Samean were described by the court as similar to those carried out by Chhun Yaseth. Therefore, the offence with which he was charged was changed from terrorism to conspiracy to pursue terrorism and organisation of armed group leading to the attack of November 23-24. Thong Samean was also convicted in absentia of organised crime and complicity in terrorism with the life sentence during the first round of cases.     

Many other cases could also be added to the preceding discussion. Suffice it to say for our purpose that  there was limited focus on most critical elements of criminal liability – i. e., an act was not wrongful unless accompanied by a wrongful state of mind, or as a general proposition, one cannot be convicted for mere criminal thoughts; one must normally do something towards bringing those thoughts to fruition. The comment is not on the output of trial, but on the requirements of the trial.  

8.    Reinvestigation or Acquittal  

Most of the CFF cases, including those discussed above as sample, demonstrated one thing straight: there was a sort of doubt on the motive of prosecution and adequacy of proof. The existing law maintains that any doubt as to guilt shall be construed in favour of the accused.[11] That did not generally happen. Again, if the court so wished it could have asked the prosecutor or investigating judge to further investigate the case, instead of acquitting the suspects, if it had strong grounds for it. Generally, it did not like to go for this option too.[12]

After all the CFF trials,[13] only a few suspects were found innocent. During the first round of trial of 32 persons, for example, the court found Bun Mony, 47 and Sokh Samith, 41, innocent on both counts of participation in armed group and act of terrorism. Their release was immediately ordered. Some observers expected from the beginning that one or two persons will be declared innocent to demonstrate that there was a full-fledged trial. Some suspects were found guilty only of one of these two counts. The court had found 9 other suspects not involved in terrorism. In other words, they were convicted only for organised crime. The court found Chhun Yaseth and Thong Samean (both of whom were convicted in absentia), Richard Kim Kiri, Nou Sarun, Chhan Yean, Nuon Nath, Veng Sothy, and Kol Sarath who were tried during the first round of trial in Phnom Penh guilty of complicity in terrorism as well. Only a few were ordered with reinvestigation of their cases.

Mention must be made, for example, of the third round of trial at Phnom Penh in which the trial judge ordered reinvestigation of the case of one suspect named Sok Thy.[14] Later, he was released due to the lack of evidence.

9.    Pretrial Rights

These few instances of hearing must be understood in the light of pretrial rights of the suspects. The risk of human rights abuses started at the first moment with the officials raising suspicions against the persons known to be involved with CFF since its establishment. The right to liberty was under threat because several arrests were made without warrant, and many of those arrested were detained in military or police stations, or Ministry of Interior over 48 hours, and pretrial detention over six months. Most of those who were arrested were not given immediate information about the reasons of arrest. Access by lawyers to their clients in prison was denied or regularly restricted in several cases. Similarly, in several cases the lawyer was not enabled to meet in private with his client. The right of detainees to have access to the outside world was also impaired. Visits by family members had been denied or irregularly restricted. The right to be brought promptly before a judge or other judicial officer was ignored in several cases. Above all, the provision of law that any accused person, whether or not in detention, must be judged no later than six months after arrest was also violated in many cases.

In November 1998, at least 16 persons were arrested in Malai, believed to be CFF members, who were accused of organised crime and were detained for several months in Battambang Provincial Prison. Whereas those arrested claimed that they had gathered with a large group of people in order to go to the Thai border in order to receive rice from an American organisation based in Thailand, and carried guns to protect themselves from robbery, the government claimed that the group was organising rebel activity and had been incited by the CFF to stand up against the Prime Minister, and to receive rice in exchange for their struggle. Accusations were made against the group that it confiscated weapons from government authorities as well as civilians. The CFF repeatedly faxed reports to the press claiming that it had organised an opposition demonstration. It criticised the excessive use of force by the authorities during the arrest of its supporters. No trial was held in any of the cases; some of the suspects were released because of lack of evidence; others were released reportedly after influencing the court.  

Again in April 1999, five people accused of being CFF members were arrested in Phnom Penh and charged with terrorism/sabotaging to destroy Cambodian economy. They were suspected of planning to attack a Sokimex petrol stock station in Prek Pnov, near Phnom Penh. Shortly after the arrests, CFF issues a press release, in which it fiercely criticised the government for the grenade attack, the coup d’état, election fraud and immunities given to Khmer Rouge leaders. It did mention the alleged plan of attack on the Sokimex station. All of them were (former) Funcinpec members, two of whom claimed to have contact with Chhun Yasith.  

During mid-end 2000, the COHCHR received several reports that the CFF was carrying out propaganda activities calling for the overthrow of the government by handing out leaflets in at least two provinces in Cambodia. Three people were arrested in Kampong Thom and Kandal Province, and were released shortly after.  In August 2000, one of the leaders of the CFF visited the COHCHR twice and reported about his fear of arrests of members of the CFF. His fear was prompted by speech given by Prime Minister on 24 August, in which the Prime Minister called for the arrest of the leaders of both the CFF and the Khmer Serei movement.[15] Arrests of the members of the CFF started well before the 24 November attack in Phnom Penh. In the beginning of October 2000, three soldiers were illegally arrested and detained for 3 months at the Provincial Military Headquarters in Battambang. They were interrogated about their CFF activities. Again on 17 November, three men were arrested in Siem Reap. On 19 November, a woman who transported equipment for the CFF was arrested in Banteay Meanchey Province.  

Then on the early hours of 24 November 2000, CFF conducted an operation in which it attacked three governmental positions: Council of Ministers, Ministry of Defence and Military Base F70. This attack gave the green light for indiscriminate arrests. Several arrests were made in the wake of the day.  An investigation conducted into the arbitrary arrest and killing of persons allegedly involved in the November 24 attack  showed that arrest without warrants were made on the basis of a list of 50 persons whose pictures were included in the list. Arrests were also made on the basis of another list of 291 names of persons compiled by the military intelligence. Most of these arrests were made in the first few weeks after 24 November. None of these arrests were made with proper warrants of arrests issued by the courts according to law. Most of the suspects were held at the Phnom Penh Municipal Gendarmerie headquarters. Some had been transferred from the province to the National Gendarmerie, others to the Phnom Penh Municipal Police. Some of the suspects who appeared to have been high risk like Richard Kiri Kim [included as a sample case above] and some high ranking police officers like Nourn Nam , Nou Saron, Ma Soben, etc were detained at the Ministry of Interior. Prime Minister Hun Sen asked NGOs to stay out of its investigation adding that the government will arrest human rights workers who were hiding alleged terrorists.    

An unidentified number of suspects were released after interviews conducted at their initial place of detention, for lack of evidence linking them to the attack. Almost all of those arrested who were later sent to the prison were not brought before the court within the maximum period of 24 hours. The court reported to the Office that it was not able, considering their human resources, to deal with in a short period of time with the large numbers of arrested persons. In January, two monks were arrested for alleged involvement with the CFF; in both cases proper arrest warrants had been issued and the monks were brought before the court within 48 hours. As of the beginning of February, 73 persons had been taken to the Phnom Penh Municipal Court. Warrants of detention were issued and charges of terrorism and organised crime were laid against 54 of them. Warrants of release were issued for 19 persons. While all persons arrested in the provinces were transferred to Phnom Penh, one suspect, who is a journalist for Agence Khmer Presses, was in detention in Kompong Cham Province for unclear reasons.  

Arrests of persons believed to be related to the CFF continued in Phnom Penh as well as in the provinces, most of them carried out without issuance of proper warrants. In one instance in Banteay Meanchey Province, a man arrested on suspicion of involvement with the CFF was beaten up seriously. He was released after intervention by the COHCHR Provincial Office and provided assistance for medical treatment. The Office was able to conduct interviews with several suspects while they were brought to the Phnom Penh Municipal Court. The Municipal Court had approved a request by the Office to continue conducting interviews with the suspects, who are awaiting trial in a prison on the outskirts of Phnom Penh. The Ministry of Interior, in disrespect of the competency of the Phnom Penh Court, prevented access by staff of the Office to the prison. The COHCHR did not receive any response to a written request to the Ministry of Interior to allow staff to meet with suspects in the prison.  

Whereas in general, persons interviewed by human rights groups reported that they had been treated upon arrest and during detention according to the law, twelve out of 73 persons brought before the court in Phnom Penh reported they had been beaten or kicked during arrest by gendarmerie or police, and during detention at the gendermerie headquarters.  

The COHCHR, with the good cooperation of the Phnom Penh Court, was able to ensure that most of the detainees, who were brought before the court, were assisted by lawyers from legal aid NGOs or the Cambodian Bar Association. However, since the suspects were detained in the Phnom Penh Prison, lawyers had faced difficulties in getting access to their clients, despite the fact that the lawyers were all officially appointed by the court. The prison director reported to have received instructions from his superiors (and it is not clear from what level), not to allow anyone in without permission from the Ministry of Interior. As of mid-February, a few lawyers had been able to meet their clients, but only after approval given by Ministry of Interior. The Cambodian Bar association and Cambodian Defenders Project complained about the unlawful requirements made by the Ministry. The COHCHR on 14 February requested the urgent intervention from the Co-Minister of Interior to ensure that lawyers are given full access to their clients without the need for prior authorisation.  

Despite approval by the Phnom Penh court which was given in accordance with the prison procedures, relatives of suspected members of CFF still encountered difficulties in visiting their families in the Phnom Penh prison. The Ministry of Interior instructed the prison director to allow access only after approval by the anti-terrorism committee which was set up shortly after the 24 November incident. At the same time, the prison director had refused lawyers who were officially appointed by the Phnom Penh Court access to their clients accused of involvement with the CFF.  The Office also requested the Co-Minister to guarantee relatives’ access to the detainees, in accordance with prison procedures.  

Whereas six persons suspected of involvement with CFF were sent to military prison (and the three in Battambang kept at the military base), all others were brought before the civil court. After intervention by the Office with the military court, the six were transferred to the civil court.  

Many leaders of the attack, and recruiters for the CFF were Funcinpec members. It seemed that many of those who carried out the attack were not politically affiliated. Several of those who were arrested after the attack, and who did not participate in the attack, were also affiliated to Funcinpec. One person was known to be a former Son Sann Party member. All of those who were arrested from Pailin were former Khmer Rouge and current Sam Rainsy Party members or supporters. Many of those who ‘surrendered’ to the authorities were Funcinpec members or supporters. In Svay Rieng Province, some of them, used to be affiliated to Funcinpec but shifted allegiance to a party loyal to the CPP after the coup d’état in 1997. The Government stated that persons from the CPP had also been arrested. The COHCHR only received information about the surrender of two CPP members in Prey Veng, and the surrender of former high ranking CPP member and former Vice President of the National Assembly (’82-93), Nou Beng.  

Three round ups of large numbers of people in Kampong Som and Phnom Penh, related to the incident, led to the arrest of another approximately 400 persons, who were released after short periods of detention. In Kampong Som, authorities conducted late night arrests of young men, since many of those involved in the 24 November attack were young men. In Phnom Penh people were arrested in two instances, in the area around the railway station, wherefrom the 24 November attack started, because they had not registered their residency in the area with the local authorities.   

The Phnom Penh Municipal Court tried a second group of 28 suspects in October 2001. Many of the same concerns were reported for this second round of trial. Since most of the suspects had been arrested together with those tried in June, they had been in excessive pre-trial detention even longer than the first group. Difficulties for the lawyers and relatives to visit the suspects remained. When the suspects appeared before the court, it was clearly visible that several of them were not able to walk or stand up properly and suffered from beri beri. This is due to Vitamin B deficiency, and is due to the poor diet in the prisons. The fact that several of the suspects come from the provinces and therefore could not be frequently visited by relatives upon whom prisoners in general rely for additional food supplies could have caused the beri beri. However, it is likely that the fact that it was difficult for relatives to get access, as a result of the Ministry of Interior’s requirement to obtain prior approval could have contributed to prisoners contracting the disease.    

While sporadic arrests have been made since the beginning of the year 2001, September saw a third wave of arrests of CFF suspects, in particular in Battambang province. Arrests continued in October as well as November. As of 14 November, the Office had received reports that 62 newly arrested were in pre-trial detention in Phnom Penh, Battambang, Banteay Meanchey, Siem Reap and Kampong Cham provinces.

The first arrests were made in early September. The Office received credible information that the CFF had planned to carry out some attacks in September, around the Festival of the Dead (end September) and possibly the water Festival (November).

Most of the new arrests were carried out without warrants. At least nine of those arrested were prospective commune council candidates for Funcinpec or the Sam Rainsy party in Battambang province. Five of them were released and were still able to register as candidates. The Office tried to verify the basis of the arrests and detention of those who remained in prison as it was concerned that these persons might have been targeted because of their legal political activities. So far, the Office was reported that the arrests were based on a testimony of a CFF suspect, who used to be a Funcinpec member, but left the party disgruntled. Moreover, during house searches, which were conducted without warrants, explosives and some weapons were found. These suspects, however, came from former Khmer Rouge areas, where possession of arms remains common.  

In Battambang, the President of the Court refused to appoint lawyers for the suspects, claiming he first wanted to finish interrogations; relatives were also not allowed to visit the suspects in prison. After intervention by the Office, these issues were solved. In the context of April 2002 trial in Siem Reap, it is noted that COHCHR and NGOs were not allowed to enter Siem Reap provincial prison (prosecutor Siem Reap did not give approval) to interview the suspects preceding the trial.

At the end of September/beginning of October of 2001, the Ministry of Interior wrote to the Phnom Penh Court requesting them to get prior approval to meeting suspects in prison. The Prison Director had earlier told the court that security concerns prevented prison officials from transporting suspects to the Phnom Penh Court. The investigating judge refused to request permission from the Ministry. His staffs were able to conduct interrogations. He requested the Office not to raise this concern with the authorities.  

The patterns of the violation of pretrial rights are similar in most of the cases whether decided by the Phnom Penh Court or by the trial courts in the provinces.  

10. Rights at Trial  

The focus hereunder is on the rights at trial. In fairness to the CFF trials, one must say that the courts, which decided CFF cases, were the courts with all jurisdictional competence to hear these cases. There was no retroactive application of criminal laws and double jeopardy. Similarly, any suspect invoking the right to an interpreter and to translation was not noted. In the rest of the cases, generally speaking, the performance of the court in the context of the rights at trial was also very poor.  

In 11 June 2001, when the first trial of 32 persons suspected of involvement with the CFF had begun, it was not public.[16] Several media and representatives of human rights organisations were not allowed to observe the trial. The security guards outside the court asked for authorisation letters from the court in case of NGOs and the Ministry of Information in case of media persons. Lawyers too did not have enough sitting arrangements for them. A lawyer spoke to the court that the wife of his client (suspect) was not allowed to come and listen to the trial. Another lawyer complained to the trial judge that he was not allowed by the guards to come to the hearing room. The third lawyer then commented: “On behalf of the lawyers, [I protest that] this is not really a public hearing. The organisation of the trial is not according to the procedure. [I} requests for a public trial. This hearing is not held publicly.” Several other lawyers also boycotted the proceedings. Ang Eng Thong, President of the Cambodian Bar Association, and Soun Visal of the Cambodian Defenders Project were both denied access to the trial on the morning of June 11.

However, the trial judge did not delay the hearing, and appointed two new lawyers for the clients whose lawyers boycotted the courtroom. They defended the clients they had never met. The presence of a large number of security forces in the courtroom, creating an intimidating environment, threatened the right to a public trial.

During the trial of second group of 28 suspects in October-November 2001, the trial judge denied a request made by a lawyer of one of the suspects to summon one of the leaders of the CFF already convicted, and who had currently been in prison, to the court. Written evidence provided by this convict, stating that many of those on trial were his subordinates, was however used by the judge against the suspects, in spite of the latter’s’ consistent testimonies that they had been lured to Phnom Penh from the provinces, with promises of money. Most of them claimed not to know about the CFF, and thereby denying that they had any intention to conduct terrorism (one of the elements of the offence of terrorism). Most of them were however convicted of terrorism (as well as organized crime). Another request by a lawyer to summon two other witnesses was also denied by the judge during the trial.

Many of the suspects retracted confessions made in front of the investigating judge in the early stages of the pre-trial detention. They claimed that they feared reprisals if they would not answer consistently with the interrogation made by the Military Police, since after their appearance before the court, they were brought back to military police detention. The judge did not take this defense seriously. None of the military police interrogators were present during the trial, or were called so that they could be examined.  

One of the suspects claimed to have been recruited by the military intelligence in order to provide the government with information on the CFF. He had been provided with documents to that effect, but these were allegedly confiscated during arrest. They could not be found in the court’s file, which did include a letter from a senior officer of the military intelligence, Mr. Hour Sareth, denying the allegation. The trial judge summoned the commander to the court, but he failed to appear, according to the Ministry of Defense, Mr. Hour Sareth was on mission. Despite his failure to appear the judge upheld Mr. Hour Sareth’s argument and considered the claim by the suspects as untrue, and convicted him to 15 years.  

Despite the appearance that the reasoning on which the judgement was based was more substantial than during the first trial, serious concerns remained leading to the conclusion that the suspects did not get a fair trial. Interestingly, one of the suspects was convicted to 7 years imprisonment, despite guarantees of immunity from prosecution given to him, through Om Yentieng and Mul Roeup, head of the military intelligence by the Prime Minister. Several months after his return to Cambodia, and on the first date of the first trial he was arrested. One of the judges, who requested anonymity, reported that he had been called several times to one of the Ministries in order to discuss his decision concerning one of the suspects. He feared that he could be dismissed, possibly by the Supreme Council of Magistracy which has legal powers in this regard.  

The third round of CFF trial in Phnom Penh had some other stories. At the beginning of the trial of 23 suspects, the trial judge told the lawyers as well as suspects that they can request for additional lawyers if they think that there are conflicting interests, and the lawyers appointed at the moment cannot represent all these interests together. He also told that additional lawyers are ready if they are requested for. Nobody had any specific request on that point. Dy Borima and Puth Theavy, who were acting as the court appointed lawyers for the 2+18 accused persons being prosecuted, also did not comment on that. The judge also briefed the accused persons at the beginning of the trial on all fair trial issues that were brought to the attention of him in COHCHR’s meeting with him on February 15, 2002. The right to consult lawyer and get clarified from the judge if the suspects did not understand questions posed to them was also included.  

The court appointed lawyers in the third round of cases were not defending the interests of their clients to a desirable level. The two lawyers representing 20 (i.e., 2 + 18) clients had difficulties to meaningfully prepare the defence of their clients not only because of the gravity of charge against them, but also due to the possibility of conflict of interest between the accused persons, and impossibility of defending every suspect equally and meaningfully. It was also not possible to understand what they had in mind when, in addition to the questions asked by the prosecutor, they were asking further questions to the suspects, making their position more complicated. One of the lawyers was given a hint, for example, during the hearing of Seang Hay, that faxed documents do not prove anything until the prosecution proves that Seang Hay acted on the advice given by the sender of the fax, or responded it in appropriate ways. There was no comment on that from the defence lawyers. There were so far no comments on the paucity of evidence.  

Some irrelevant questions were also asked by the Prosecutor and the trial judge. [This is true of all CFF trials held throughout the country]. The impartiality of the trial judge in conducting the trial might be questioned. Most of the questions that should have been asked by the Prosecutor were asked by the trial judge himself. The courtroom appeared more as a room of the investigating judge than a trial room because most of the time was spent on further interrogation, than asking the prosecutor and defence lawyers to take up or defend their case. The prosecutor did not call any witness to testify; his whole approach was to focus on the confessionary statements made by the suspects in the police or prosecution office.  

The court seemed keen on using the statement given by one suspect against another. There is no law in Cambodia which requires that the statement of a co-accused can only be taken as evidence against another accused on oath and subject to the process of cross examination at the trial. The statements of some convicts, serving their prison sentence following the CFF trials held last year, were also being used against some of the present suspects. But these convicts were not called on to give their testimony in the open court, thus depriving the attending lawyers an opportunity to examine or cross-examine their implicating statements. Apparently, the prosecution was consolidating its position on the statements of the co-accused and former CFF convicts in the absence of other substantially incriminating evidence. From the statements given by the suspects to the court, and further clarifications, it appears that some of them may be technically involved with CFF without knowing much about the organisation and its purpose. In this background, the challenge before the court was to find the required intent under both these provisions, and that seemingly was not proved.   

On 5 April 2002, three more CFF suspects were sentenced by Siem Reap Provincial Court. One of the three suspects was convicted to 10 years imprisonment, but the sentences of two others were suspended. Again, the convictions were not based on substantive evidence, and the trial suffered from several procedural irregularities. One of the suspects was not provided with a defense lawyer. Sequence of trial events was as such performed reasonably well as in the case of Phnom Penh trials (opening of the trial, accused questioned as to background, prosecutor reads charges, questioning by judge, reply of accused, questioning by lawyers, reply of accused, pleas of lawyers, closing arguments, last reply of accused, judgments including sentences). But the judge did not keep off from asking some leading questions. He seemed to act as a prosecutor at times. Both the judge and prosecutor stressed the opportunity for the accused to prove their innocence, rather than explaining them about their rights (including the right to silence). Defense lawyers did not object to the continuance of the trial without the presence of witnesses (whose statements were read aloud by the clerk), to leading questions from the judge, and to not inform the suspects of their rights and asking them to come up with evidence about their innocence. Note that the reference here is to the cases of Lek Bunnhean, May Srei and Meas Savoeun, which have already been described above as sample cases.  

The judgements of CFF cases generally don’t focus on the elements of crime that we discussed above in relation to the fact and evidences presented at the court. Conclusions are made without referring to the arguments made by lawyers. Very limited references are given on the statement of the suspect at the open court. They all show that the judgment that these judges have rendered are inadequate. A more objective assessment of the rights at trial may be made with specific reference to the following standard principles:  

·         Presence of the Accused  

All the accused were present at the trial with the exception of those who apparently had not been traced. The people like Chhun Yaseth and Thong Samean who are said to be the leaders of the CFF were convicted in absentia. The lack of presence of such important figures of CFF in the trial means that even those who were present were not sufficiently understood in the absence of the statement of the prime suspects. There were other problems also. In the second and third round of cases in Phnom Penh, for example, the court appointed lawyers had not argued anything in favour of the absentee suspects. Trial in absentia, though acceptable in exceptional cases, is a current feature of the Cambodian justice system. At any rate the rights of the accused will still be protected under Cambodian law since an accused who has been tried in absentia can lodge an opposition to the judgement.[17]   

·         Equality of Arms  

All the CFF lawyers did have access to the files containing the evidence relied on by the prosecution. Since many of the court appointed lawyers expected the copy of all these files supplied to them free of cost, but that was not done. In the third round of cases, at the Phnom Penh Court, for example, the case files supplied to the lawyers did not contain statements of the accused persons at the police station. To maintain equality of arms a fair balance is expected to struck between the parties in the case. The disclosure should cover all materials for or against the accused and it should include the relevant testimony of the accused at the police custody.

During the second round of CFF cases at Phnom Penh, for example, at no time did the prosecution show any willingness to assist in providing the necessary information to one accused, Tep Simoly, in respect of a key witness, Hour Sareth, who was a senior military intelligence officer. The accused alleged that Hour Sareth had asked him to infiltrate the CFF organisation and act as a spy for the State. Though the judge did request that the witness should be present, the witness never turned up and the only official reason was that he was on mission. The judge did not pursue the matter further. The lawyer of the accused insisted on the presence of that witness but her efforts fell on deaf ears. The prosecutor simply submitted at the end of the case that Hour Sareth had denied the version of the accused. A letter allegedly written by Hour Sareth and remitted to the accused was never produced; the prosecution remaining content in saying that there never was such a letter as Hour Sareth had no right to issue it. In the absence of Hour Sareth this important fact could not be verified. It is a matter of grave concern that, on the state of the evidence and, given that this witness did not attend court, accused Tep Simoly was convicted and sentenced to 15 years imprisonment.

Impartiality and Independence

Under Cambodian law the trial judge has the right to question the accused. This should obviously be done in the strict respect of the rights of the accused, more particularly his right to silence and self-incrimination. The questioning of the accused in all CFF trials seems to have been conducted with a view to compel them to confess to the alleged offenses. In many cases in Phnom Penh or the outside provincial courts, the accused persons were confronted with the list of the names of the alleged CFF activists and the impression was that, since their names appeared there, they could have no plausible explanation to give by way of a defence. The defence of the accused was that they had been tricked to come to Phnom Penh to get a job and that they were forced to carry rifle and follow the group. This defense was simply dismissed as ridiculous during the questioning. A glimpse of the cases that have been reported above as sample cases explain the realities.

In the second round of cases in Phnom Penh, at one stage in the course of trial one lawyer requested that three witnesses be summoned to court for questioning. The judge simply ignored this request and the lawyer did not pursue the matter further. As pointed out above, one important witness who was a high ranking military intelligence officer did not attend court in spite of a request by the judge that he should attend. In fact, that witness, Hour Sareth could have helped in determining whether the defence of the accused that he was an under cover agent was genuine or not. The judge was not unduly concerned by this absence and the explanation of that accused was simply rejected.

Presumption of Innocence

The overall impression during all CFF trials in Phnom Penh and outside was that this principle was not really respected. In fact the whole atmosphere in the course of the trial, with police officers in uniform filming the proceedings from the bench and the picture of each accused being taken during interrogation, was rather intimidating. The judge, at times, and the prosecutor, all through the trial, in the course of his interrogation of the accused, visibly treated them as guilty persons.

On the first day of the second round of trial at Phnom Penh, the accused were brought to court in handcuffs. They were removed subsequently and were not used on the following days.  

During the third round of trial in Phnom Penh, the trial judge shouted at the suspects at times. He even threatened one accused not to be ‘stubborn’ and accept the guilt. The observers expected the trial judge to ask the prosecutor to prove his charge, or request the court to drop it in the absence of incriminating evidence. He never did it. An aggressive course of interrogation was a challenge to the guarantee of the presumption of innocence.

Right to be informed of the charge

The charges were read out to the accused. All of them presumably understood what they had to face. But it cannot be assumed that they understood the legal characterisation of the acts allegedly committed by them. In fact, the elements of the offences of terrorism and taking part in organised crime are quite complex for a layman or even for a lawyer to understand. All the accused simply stated that they were not guilty of the offences. One accused, during the second round of trial at Phnom Penh, had some difficulty to understand what the charge was and he kept saying that he did not understand why he was in court as he had done nothing wrong.

Times and facilities for the preparation of defense

All the accused, except those tried in absentia, were represented by lawyers during the first and second round of trials at Phnom Penh. During the second round of trial at Phnom Penh, a lawyer was appointed during the trial in the case of those accused who were not represented or who wanted a change of lawyers. None of the lawyers who were so appointed made any request to be given some time to talk to their respective clients. Since the main line of defence of most of the accused was that they had been forced to join the CFF group and that they had been beaten up by the police to confess, it would have been better for the lawyers to ask for some time to prepare the defence on those lines. The judge also did not make any observation on this. The interesting point is whether the lawyer would have been granted an adjournment. In fairness to the judge, however, it must be said that he really acceded to the requests of the lawyers to allow them to communicate with their clients whenever required. On some occasions, the lawyers were even allowed to talk to their clients before answering questions from the bench. But during the third round of trial in Phnom Penh, and many other trials in the provinces, there were neither times nor facilities for the preparation of defense.  

Trial delay

The accused in the CFF case of the first and second round were arrested in November 2000 and have been tried almost a year after. Article 21(1) of UNTAC Law provides that a person whether or not in detention must be judged not later than six months after arrest. Lawyers always invoke this article to secure the release of those persons who are tried more than six months following their arrest. Article 22 of UNTAC Law provides that where there has been no compliance in the procedure set out in articles 10 to 21, and this includes the right to be tried within six months from the date of arrest, the person must be released if the non compliance has seriously interfered with the rights of the defence. That did not happen.

Legal representation

As already stated all the accused were represented during the first and second round of trials in Phnom Penh. Some of the accused were represented by two or more lawyers who took turn in questioning the accused. At times, it was apparent that this strategy confused the accused. When the same questions were put by the different lawyers the situation became worse. It is not clear whether these lawyers had had time to meet and discuss among themselves before hand. The lawyers who were appointed in court had no time to consult the accused in such a situation.

The main line of the defence of the accused was that they were tricked into coming to Phnom Penh to get a job and that they had been acting under duress if at all they participated in the armed group. Hardly any questioning was done on this aspect except for statements made by the accused parties. None of the police officers present was questioned on this issue nor did the lawyers make any request that this be done. Yet this was an important line of defence. In the context of third round of trial in Phnom Penh , one should also quickly add that the court appointed only two lawyers to represent 20 suspects. There were apparent conflict of interest between these suspects, and the lawyers could not plead the defense of all these suspects reasonably. The role of the lawyers in relation to these 20 suspects was in fact largely ceremonial. The office had cautioned the trial judge about this fact some days before the trial. Two accused in Battambang were not represented by any defense lawyers.

The submissions made by the lawyers at the end covered mostly the law relating to the rights of the accused and the articles of the law creating the offences. There was no in-depth analysis of the offences and the evidence or lack of evidence in relation to each element of the offences.

Many of the lawyers turned up late in court and some of them just left because the questioning of their clients was over. One lawyer who was representing one accused left and disappeared after the questioning of his client was over and did not attend the court to make his submissions at the end. It is believed he is a CDP lawyer. The judge stated he would accept written submissions from him. 

In general the lawyers both in Phnom Penh and provinces were given full latitude to defend the interest of their clients and the court cannot be blamed for their shortcomings. This is a matter that should be taken with the Cambodian Bar Association so that remedial action is taken to improve the quality of the profession. There is an emerging jurisprudence in human rights on incompetence of lawyers and its effect on the rights of an accused and the lawyers need to be aware of this.

The right to call and examine witnesses

This right was impaired in most of the cases. Many necessary witnesses were not called to the court. During the third round of trial, what the trial judge did was to pit one suspect against another, or use the statement of the already convicted CFF prisoner to establish the guilt of the present suspect. As mentioned already, during the second round of trial, a key witness for the prosecution, who could have shed light on the defence of one accused, Tep Simoly, was never present in court. It is clear that this particular accused had suffered an immense prejudice in the conduct of his defence and of his basic rights as an accused. None of the police officers who recorded the alleged confessions of the accused was present. A request by a lawyer to have three police witnesses present had no follow up. It is surprising that the lawyers themselves did not insist strongly enough on the presence of these witnesses or ask for a clear ruling from the court on this aspect. An Mao is one of the accused who has been convicted in the first CFF trial. A list given under his hands and containing the photographs and names of the accused was produced in court. An Mao was never called to be examined. His absence has deprived the accused of a legitimate opportunity to question An Mao on the circumstances in which the photographs found their way on a list already prepared by him.

Right against self-incrimination

The main evidence against the accused was their confession. Most of the accused stated that the police had subjected them to physical violence. When they were asked to explain why they confessed before the investigating judge in presence of their respective lawyer, they explained that they had no choice. They feared that they would be beaten up again by the police on their return to their place of detention. This line of defence went almost unnoticed. None of the police officers who had recorded the alleged confessions were present in court. The lawyers who represented the accused did not take any steps to secure their presence in court. Whenever there was an allegation of ill treatment by the accused, only one police officer who was present at the trial, stood up to deny the allegation by reading some notes. In addition the questioning by the prosecutor was to get confirmation of the confessions. It is worth noting that the judge stated in his judgement that he was not prepared on the confessions of eighteen of the accused and acted on what he believed was sufficient evidence to convict for the offence of terrorism.

11.  Positive Indications

This largely negative analysis of the report must be taken by the readers with some caution. One can dispute whether these CFF cases can speak for the hundreds of ordinary civil or criminal cases being investigated, heard and decided by Cambodian courts on almost daily basis. For a variety of reasons elaborated at the beginning, the CFF issue remains different, and the likelihood of outside influence in this case from the beginning was greater than any other cases decided in Cambodia after the promulgation of the new Constitution in 1993. One has to understand the fact of involvement of military in the investigation phase in the beginning, and also the possibility of willingness of the government to consolidate its position by using the CFF banner against its opponents. The pressure that the court might have borne on this case might not be the same when it is trying another ordinary case of the day, where nobody is personally involved except the contesting clients.  

Although violations of pretrial rights were massively reported, the authorities expressed that they know the right to liberty, and that they are committed to the procedures of arrest and detention. Once the suspects were taken to the prison, their rights to have the information about the reasons of arrest or detention were recognised in most of the cases. In most of the cases, lawyers were allowed to visit the prisons, if they wanted to consult their clients. Most of the clients were represented by lawyers, although in some cases, the quality of representation was very nominal. Most of the suspects were not tortured once they were taken to the prison.    

The observation of CFF trials gives some other indications also. Except the first day of first round of cases at Phnom Penh, all CFF trials were held in public, notwithstanding the presence of security guards outside the court. Except this first day, everybody could have access to the court without the need to have any prior authorization. Even relatives of the prisoners were granted free access to the court. In addition, at Phnom Penh, a loudspeaker was placed outside the hearing room to enable people to follow the trial in all CFF cases in all these three round of trials. 

Moreover, in all CFF cases, judges generally informed the accused person about their rights (including right to disqualify the judge. If the course of aggressive questioning is to be ignored, the trial judge had been able to show respectful attitude during most of the trial to all participants, including accused persons and lawyers. They were in control of the hearing. In most of the cases, they gave ample opportunity to lawyers to speak and to consult with their clients. In many cases, lawyers had good arguments; they were seem to have questioned about independence of the court, arrest without warrant, excessive pretrial detention, and hindrance imposed on the way of lawyers access to their clients. Ample references to the law and even to international treaties were noted at times, for example, during the second round of CFF hearing in Phnom Penh. Many of the lawyers submitted their briefs to the trial judge after their conclusive arguments were done. This is indeed a good trend. 

In spite of the many shortcomings highlighted above, some accused persons were acquitted and in the case of some, their confessions were not acted upon. If these shortcomings are current features of criminal trials in the Cambodian criminal justice system, it is high time that a rational strategy be developed to counteract these failings. Trial judges also showed some sense of sentencing. For example, during the second round of cases, with regard to the sentences meted out to the accused, on the charge of terrorism which carries a penalty of between ten to twenty years[18] six accused were sentenced to ten years, four to seven years and eight to five years imprisonment. On the charge of organized crime which carries a punishment of between three to fifteen years[19], one accused was sentenced to seven years, three to fifteen years, one to ten years, two to five years and one to three years. However, to all intents and purposes, terrorism appears to be a more serious offence than organized crime. This fact is reflected in the sentences.

Conclusions

In general, the application of fair trial standards with specific reference to CFF cases shows that Cambodia ’s judicial system remains weak in several senses and has to go long way into the future to make it strong.

If these CFF cases are taken as test cases, we find both the pretrial rights and the rights at trial still not adequately institutionalized in Cambodia . These cases are illustrative of the violation of the protection regarding arrest, detention and the presumption of release pending trial. Some cases of torture were noted. Many of the suspects were not informed immediately of the reasons of arrest or detention. Detainees had restricted access to the outside world. Right to communicate and receive visits was also restrictive. Many of these suspects were not promptly brought before the court. In many cases, the right to trial within the lawful period was not respected. In several cases, the right to defence was not adequately guaranteed. In fact, the court appointed lawyers were not serving the suspects as expected of legal professionals. A few of suspects did not have lawyers despite the right to have a legal right to that effect. Bail did not become an important concern for judges who investigated the case. Confessions were taken as principal evidence.    

The right to a fair hearing lies at the heart of the concept of fair trial. It is specified by a number of concrete rights, such as the right to be presumed innocent, the right to be tried without undue delay, the right to prepare a defence, and so on. In none of the trials the CFF judges spoke about exclusion of evidence elicited as a result of torture or other compulsion. The right to be tried without undue delay was affected in more than half of CFF cases. The right to call and examine witnesses was not complied in some cases. The right to a public judgement was recognized; but the judgements were not adequately reasoned. Even the major arguments of the attending lawyers were not responded in the judgement. The cases we monitored placed several question marks on the realization of these rights. None of the trial judges thought about exclusion of evidence elicited as a result of torture or other compulsion. They show that the justice system has to go far ahead in getting these rights rooted in the judicial consciousness. They also show that the court system to grow stronger to deal with the pressures, and other challenges before it.

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[1] A press release of CFF dated 27 April 1999 reiterates that CFF is a resistant group and was born as a response to unjust situations emerging in Cambodia, especially after March 1997 when a peaceful demonstration in front of the National Assembly had been gunned down by the government forces. The organisation charges the government of corruption, human rights violations, torture, execution, grenade attack on innocent people, electoral frauds, and immunity to the former Khmer Rouge leaders who were responsible for the genocide during 1975-79. It has a plan to continue struggle until Cambodia becomes a state of law, and the government is from the people, by the people and for the people. As such, it defines itself as an anti-government, but not a terrorist organisation. The organisation is said to be registered in the United States as a non-profit organisation and is headquartered in Long Beach, CA 90804 USA.  The police investigation shows that Chhun Yaseth, an American Cambodian, is the top leader of the group since 11 October 1998.

[2] The list of CFF prisoners as at April 2002 has been attached herewith.

[3] Art 1, Law on Punishment of the Acts of Terrorism 1992

[4] Art 2, Ibid

[5] Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period (United Nations Transitional Authority for Cambodia, 1992)

[6] Art 36, UNTAC Law

[7] Art 69 states: “Whoever has provided the means by which an offence is committed, ordered that the offence be committed, or facilitates commission of the offence shall be considered an accomplice and punished with the same punishment applicable to the principal offender.”

[8] Srun Vong Vannak, a member of the opposition Khmer Nation Party (KNP) and the party’s chief of security, was sentenced to 13 years in jail – a decision that took the judge only 10 minutes to reach.  

[9] Pretrial detention of the accused is not to exceed 4 months. It can be extended by 2 months for the purpose of investigation, but only on the order of a judge who gives reasons for extension. Article 14 (4), UNTAC Law.

[10] Article 22, UNTAC Law

[11] Art 38, The Constitution of the Kingdom of Cambodia (1993)

[12] Art 107 of SOC Law of Criminal Procedure provides that if the charge referred to the court is not sufficiently clear, the court may refer the charge back to the prosecutor or investigating judge for further investigation.

[13] See the Attachment – 1 of this Report

[14] If the charge referred to the court is not sufficiently clear, the court may refer the charge back to the prosecutor or investigating judge for further investigation. Art 107, SOC Law

[15] It is said to be another anti-government group and is based in the province of Kratie, and is reportedly led by two Cambodian-French, Ith Suong (former CPP official) and Nguon Soeur (former Funcinpec, who shifted allegiance to the  CPP in 1998).

[16] Arts 128-29 of  SOC Law on Criminal Procedure provides for public hearing  except when it is deemed to be dangerous to public order.

[17] Art 115, SOC Law

[18] Arts 1 & 2, Law on Terrorism

[19] Art 36, UNTAC Law

*Adhikari is a Nepalese lawyer currently working with Cambodia Office of the High Commissioner for Human Rights (UNHCHR)

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The population of Nepal is growing very fast. The 1991 Nepal census was a widespread national census conducted by the Nepal Central Bureau of Statistics. The rate of population growth has frightened everybody. However, the pressure that the country is facing on the population front is not only internal. The Indian people moving into Nepal and finally settling here are one of the major factors behind increasing population pressure. The effects of this migration are not only demographic, but socio-political and economic as well.

Although the changeover in Nepal during the last five year is ominous for democratic consolidation of the country, it is nevertheless a challenge as well. It must be reminded here that the movement for restoration of democracy, made possible by the blockade imposed by India was a response to the determination of the then government to implement what is popularly known as the Harka Gurung Report. Harka Gurung led a government Task Force created in August 1983, which submitted a long list of recommendations after a long and thorough study into the problems, to safeguard national interests. The other members of the Task Force were Upendra Pradhanang, Dr Chandra Bahadur Shrestha, Dr Chaitanya Mishra, Dr Durga Prasad Ojha, Dr Parthiveswar Timilsina, Dr Bal Kumar K.C., Dr Bidya Bir Kanshakar and Santa Bahadur Gurung. Most of the 70 recommendations of the Taskforce for controlling internal and international migration were related to the regulation of the Indo-Nepal border. It is in the national interest of Nepal that the recommendations of the report be studied and put to planned implementation process. This also requires broad-based dialogue with concerned stakeholders.The excerpts of the report are as follows:

International Border
It is clear that the free movement of people across the open border between India and Nepal has accelerated the migration process between the two nations. This is the cause for the increase in illegal businesses which is a matter of deep concern for both nations. In this background it is necessary to regulate the free movement of people across the border. Movement of people across the Indo-Nepal border should only be allowed through specific points agreed upon by both sides. Movement from other areas must be restricted.

Three stages have been proposed for the process of regulation of movement of people across the Indo-Nepal border. In the first stage, the provision for making the people moving across the border register their names in the specified check posts must be made within this fiscal year. One year after this provision has been made, entry permits must be provided as a start to the second stage. Residents of area within 10 kms from the border must be provided multi-entry permits and others must be provided single-entry permits. In the third stage, requirement of Passport must be enforced for travel between India and Nepal.

In order to effectively control illegal businesses between India and Nepal, expansion and strengthening of border patrols in necessary. Alongside, import of luxury items from overseas must be banned.

Immigration and Population Policy
With regards to national interests, arrival and activities of the foreigners in Nepal must be controlled to a certain degree. Being a small nation with limited resources, the state of Nepal must have special control over immigration. Since the majority of the migrants to Nepal are Indians, it is necessary to include Indians in any program related to immigration for it to be effective. The process of name registration in the border and provision of entry permits are the preliminary steps in this direction. To discourage the departure of able population necessary for development and the immigration of unnecessary foreigners, a national policy must be formulated without further delay. Since uncontrolled migration can have a negative impact upon the family planning programme, the national policy on population must prioritize the regulation of international migration. Short-term and long-term programmes must be formulated in this regard.

Citizenship
The current policy on citizenship appears to encourage immigration. The number of people acquiring citizenship by descent has increased unexpectedly after the change in citizenship by birth and naturalization. Changes need to be made in the prevailing law, rules and Constitution regarding citizenship.

According to Nepal’s Constitution of 2019, part 2, Article 8(d), a person of Nepalese origin is eligible to acquire naturalized citizenship after residing in Nepal for 2 years and for people not of Nepalese origin the requirement is 15 years. But the term “person of Nepalese origin” has not been defined in the Constitution or any law. Therefore this term being controversial, discriminatory and ambiguous must be removed from the Constitution.

The term “either of whose parents was born in Nepal” in Part 2, Article 7 (b) of the Constitution must be amended to “either of whose parents are Nepalese citizens”. According to Citizenship Act of 2020 section 3(4), orphans found in Nepal whose fathers are not identified will be assumed to be Nepalese citizens by descent. The term mothers should also be added in this provision.

Provisions regarding citizenship by marriage or adoption or honorary citizenship must have the same requirements as naturalized citizenship. Naturalized citizenship must be differentiated from citizenship on hereditary basis or citizenship by birth. Naturalized citizens must be declared ineligible to occupy Constitutional or military positions. Naturalized citizens must be eligible for public posts whether by appointment or election only after 10 years of acquiring the citizenship.

Persons other that children born of naturalized citizens before and they acquired their citizenship or minors accompanying them to Nepal must be eligible only for naturalized citizenship.

The current provision enabling political personalities to recommend for citizenship must be removed. Only recommendation of authorized official and the fulfilling of legal requirements must enable a person to acquire citizenship by birth or on hereditary basis. Similarly a naturalized citizen must be disallowed from making recommendation for citizenship.

In order to address the concerns of people who have not taken temporary certificates, special courts must be set up is each district to certify in reference to the applications made and review suspicious cases and cancel citizenships and penalize the wrongdoers if the need be.

Provisions must be made to publish a list mentioning naturalized citizens, revoked citizenships and reclaimed citizenships for public reference. Registration offices must be established in the central level to register births, deaths, events and citizenship. Administrative and legal provisions must be made keep up to date voter’s lists in the zonal and district levels.

The requirement of presenting citizenship certificate must be applied only for – sale of property, loan from public institutions, acquiring passport, appointment to public or other institutions, candidature in elections, or other matters requiring the differentiation of citizens from non-citizens.

Trade 
The artificial steps taken by the government in the name of trade diversification has resulted in an increase in undue foreign influence. Therefore foreign influence must be controlled in the trading sector. Involvement of domestic players must be encouraged along with institutional development in this regard. Import of luxurious, semi-luxurious or provocative items but be prohibited. Special legal provisions must be made to punish people who discourage this trade upheaval.

Clear policy must be made to limit the role of foreign entities in both internal and international trade. In order support the involvement of public representatives in trade businesses, foreign nationals must be allowed to own only up to 49% of shares of the Traders Public Limited being set up under the Nepal Company Act. Foreign nationals must be allowed to be involved in Private Limited Companies that only conduct trading activities between India and Nepal with the goods originating in these two countries. But the dominant shareholding in these companies must be allotted to Nepalese citizens other than the naturalized ones.

Legal provisions may be made to allow Indian owned companies to establish and run in Nepal only to import and sell products held to be essential for the public by the government. But restrictive provisions must be made for such companies in view of industrial development regarding such goods in Nepal. To protect the interests of small and medium sized domestic businesses, foreign involvement in any institution, firm, partnership or cooperative entity other than Public or Private Limited Companies must be banned. Auditing of public institutions, agencies and foreigner involved institutions must be conducted by Nepalese auditors only. The amount of profit flowing out of the country must be controlled. The amount that is allowed to be taken out of the country (in Nepali currency) according to the accounts must be exchanged only through banks.

The Commercial Policy of 2039 mentions allowing foreign investment and technology into the export market. Such policy to encourage foreign businesses in export market is not desirable hence must be discarded. To protect public welfare by maintaining healthy competition in the market and to prevent monopolistic practices by an individual, company or any particular group regarding any good, trade or business, a law controlling monopolistic practices must be enacted.

Mobile or street vendors must be allowed to conduct businesses only after acquiring permission from the relevant local bodies. Owners of shops situated in markets specified by the government must be made to acquire certificates from the relevant local bodies. Such certificates must only be given to Nepalese citizens. The current practice where any foreign company or institution can create advertisements or such services via agencies must be stopped.

Industry
The current industrial policy of Nepal protects small and cottage industries for Nepali citizens. The administration must still check to see if foreigners are involved, indirectly or invisibly in the establishment or management of these industries. The government must specify the priority of the industries that are likely to have foreign participation in each fiscal year. Technical services, management and market services regarding such industries must be according to the parameters specified by the government. The locations of the Industries that are allotted for foreign involvement must be specified by the government. Such industries must not be allowed to run in government established industrial areas.

Industrial Business Act of 2038 which gives concession to hotels and transport businesses within 8 kms from the border. In order to strengthen border administration, the Industrial Policy and the law must be amended to disallow the establishment of such businesses in such areas. In order to shift such industries to area adjacent to the highways provincial industrial plans must be formulated and implemented.

Labour and Employment 
National Policy on labour and employment has a great effect upon internal and international migration. Currently there is no clarity in the policy regarding labour and employment and implementation of legal administrative provisions has been incomplete. The working of the Ministry of Labour and Social Welfare has focused more upon social welfare and traditional works so a separate Ministry for Labour and Employment must be created.

The Nepal Factories and Factory Workers Act of 2016 and the rules made thereunder in 2019 have not been effectively implemented. This legislation and the rules must be enforced upon the industries duly registered in the country by this fiscal year. These provisions must be gradually expanded to cover other business areas. Work permits must be made compulsory for Indian citizens to work in Nepal.

The Nepal Factories and Factory Workers Act, 2016 (Section 47) and Industrial Business Act, 2038(Section 10) have separate provisions regarding the restriction on employment of foreign workers in Nepal and in general are favourable towards foreign immigrants coming in and getting Nepali citizenship. These laws should be amended so that they are compatible and also reduce the time period for which permission can be granted to employ foreign workers. Provisions to provide skill enhancing training for Nepali workers must be made. Industries providing such training must be given tax concessions proportional to the amount spent on such training.

Laws regarding foreign investment and technology must be amended to make the inclusion of Nepali citizens compulsory in a way that with respect to the proportion of investment to labour, foreigners do not form the majority. Both short-term and long term planning must be done to include Nepali workers in the businesses conducted by non Nepali citizens and provide minor, medium or high level skill training.

In order to fulfill the demand for labour required in development programmes, the National Planning Commission and the proposed Ministry of Labour and Employment must make necessary plans and programmes for updated forecast and mobilization of unskilled and skilled labour. The role and responsibility of Labour administration in skill development training must be defined. Greater institutional cooperation and coordination must be developed between the institutions that are providing the same kind of professional training.

In big construction plans, foreign contractors tend to employ more of foreign labour than Nepali labour. To discourage this, relevant laws must be amended to provide concessions to contractors employing Nepali labourers. Additionally employment of foreign labourers in government sanctioned projects must be prohibited. Foreign workers must be made to register their names in the Labour department and renew it every year. The training programmes conducted by the labour department must focus upon providing employment to the labourers and such programmes must be conducted from the coming fiscal year onwards.

The number of voters from the Terai region has been seen to have increased abnormally with regard to the National Referendum, General Elections and local body elections. The reason for this must be found out via an investigation.

In order to promote national unity, harmony and development, the time for foreign music on Radio Nepal must be limited and programmes in local languages on family planning, agricultural, soil conservation and other developmental programmes must be aired. Along with this foreign cinema and newspapers must be controlled.

Conclusion 
Harka Gurung, the main architect of the report has been seen quoting American poet Robert Frost’s 1914 poem frequently ever since. Indeed, the poem “Mending Wall” explains the persistence of problem along the Indo-Nepal border ever since the report was out:

Before I built a wall I’d ask to know
What I was walling in or walling out
And to whom I was likely to give offense.
Something there is that doesn’t love a wall.
That wants it down.
He will not go behind this father’s saying
And he likes having thought of it so well
He says again good fences make good neighbors.                               

There is nothing to disagree with Harka Gurung: “good fences make good neighbours.” The challenge is – can the politicians in this post-1990 environment take up these national issues once again in their right perspective and make sure that the population influx is checked, and Nepal’s age-old identity, sovereignty and independence is not jeopardized under any design.