Reviving Justice in Cambodia

No one disputes that Ren Phalla killed her enraged former lover. The young woman with silky black locks tells the story quite openly--about being beaten bloody across her face and chest, about fleeing home to avoid more bruising blows to her small body, about his drunkenly pursuing her and ripping off her clothes, and about finally, in desperation, grabbing a table knife and plunging it into his body.

For her crime, Phalla expected to be locked away for life. Instead, she made Cambodian history when a court for the first time accepted the principle of self-defense in the case of a battered woman. It reduced the charge from first-degree murder to involuntary manslaughter. In April, she was sentenced to three years.

Phalla got a fair day in court courtesy of an internationally assisted effort to provide Cambodia with something it has lacked for decades: a system of justice for all its citizens. In addition to providing defense lawyers for defendants such as Phalla, these programs are training judges and lawyers and providing human rights training for police.

Cambodia’s programs, aided by foreign lawyers, the United Nations and the U.S. Agency for International Development, are among the most extensive and intensive of the many similar efforts in the world’s new democracies, according to Kassie Neou, director of the Cambodia Institute of Human Rights and a survivor of Cambodian death camps.

In fact, Cambodia’s poor may now have better access to real justice than the rich and famous and powerful--people such as Pol Pot, the Khmer Rouge leader recently reported detained by dissidents within his own splintered revolutionary movement.

So little confidence is there in the threadbare judicial system that the ruling coalition’s co-prime ministers, whose long-standing differences erupted into pitched battles on Phnom Penh’s streets over the weekend, have jointly appealed to the international community to try Pol Pot.

Pol Pot bears much of the responsibility for the country’s predicament. The Khmer Rouge’s murderous rampage between 1975 and 1979 left more than 1 million people dead, including all but seven lawyers. Justice collapsed into a Kafkaesque abyss as courts were shut down or converted into human slaughterhouses and schools were used as prisons, their playground swings serving as gallows.

When Cambodia started to build a democracy from scratch in 1993, it had to appoint a new crop of judges and prosecutors from among cab drivers, farmers and primary school teachers--or anyone else who was even partially literate.

Even now, the phrase “Cambodian justice” is largely a contradiction in terms. Most judges and prosecutors are paid about $20 a month. Most cases, criminal or civil, are decided by payoffs or political persuasion, lawyers and diplomats here say.

“In this very difficult situation, we can’t have honesty 100% of the time,” conceded Minister of Justice Chem Snguon. “The salary of judges and prosecutors is so low. They can’t preserve their dignity if their wives have to sell vegetables or cigarettes in the market to earn a real livelihood. Under these circumstances, it’s hard to prevent corruption.”

A Common Problem

Cambodia is not unique. In most of the new democracies that have sprouted in recent decades, justice still has a long way to go.

In Russia, for example, trial by jury was brought back three years ago for the first time since the 1917 revolution--but in only nine of 89 regions. Among the hundreds of thousands of defendants who languish in detention for 10 months or more, 66% are either acquitted or given sentences shorter than the time they have served, according to human rights groups. Most judges are holdovers from the Soviet system; the one difference is that many are now more corrupt. Torture is still widespread.

In Argentina, President Carlos Menem has undermined judicial independence and credibility by almost doubling the number of Supreme Court judgeships and then, according to human rights groups, filling them with largely unqualified friends.

And in Brazil, police in the big-city shantytowns beat the poor with such regularity that a recent poll found that Brazilians fear police more than criminals.

In this context, once-lawless Cambodia’s progress is all the more striking. One big reason is the Cambodian Defenders Project, which supplied a “public defender” for Phalla, who otherwise would probably have been unrepresented in court.

The project was started by the International Human Rights Law Group, an independent agency in Washington that has similar programs elsewhere around the world. The program runs on a U.S. Agency for International Development grant, and its advisors and trainers are American lawyers.

The project has handled more than 1,000 cases, with a 48% acquittal rate in murders and 37% in all criminal cases in its first year--rates so high as to suggest that the police were often content to round up the usual suspects, without much regard for whether they were the real criminals.

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In a society where 40% of the 10 million people live below the poverty line, the impact of programs like this could be profound.

“Legal reform has already begun to and will continue to change lives on a daily basis,” said Keith Hargreaves, the U.N. Development Program coordinator for human rights, governance and democracy. “It restores people’s understanding that there is some fairness in a democratic society. People increasingly feel protected by the law.”

Cambodia’s legal aid societies, including three major defenders groups, are doing more than just providing a voice for the poor in courtrooms. They are establishing legal precedents that may form the basis of future decisions.

The defenders project’s 31 Cambodian defenders--most of whom had at least some high school education and received 10 months of training in basic laws, writing motions and cross-examining witnesses--won the nation’s first acquittal due to a confession forced by torture.

That case involved Kim Phal, a 29-year-old pregnant woman who witnessed a thief leaving a home that had been robbed in a neighborhood she was visiting--only to be arrested for the crime herself. Police burned her with cigarettes and slapped her until she lost hearing in one ear. She confessed, and suffered a miscarriage soon after.

The decision to acquit was also highly unusual because Cambodian judges who want to release defendants tend more often to find them guilty, then sentence them to the prison time they served awaiting trial.

In another robbery case, the project defended a young man arrested on suspicion of riding a stolen motorcycle. When police found the bike was registered to his brother-in-law, they beat the suspect on the face and legs to get his confession to 20 unsolved thefts. When defenders proved he was not even in town at the time of the crimes, the judge acquitted him--and set another precedent by declaring confessions invalid unless corroborated by evidence.

The project also won dismissals or acquittals for an array of people held without trial beyond the four-month constitutional limit. One was a 14-year-old boy detained for 14 months for allegedly stealing goods worth about $1. Others held for eight years had basically been forgotten.

When it took on its first clients in 1995, the project found that an estimated 60% of Cambodia’s prison population had not yet been tried. It later filed and won the first bail motion, establishing the principle that not everyone has to be imprisoned until trial.

“We’re helping create a system where there are two sides in a case. And even if we don’t win, the fact that defenders are in court raising arguments and pointing out laws to the bench reinforces the rule of law,” said Christina Poulter, an American advisor. “We serve as the conscience for a young court.”

Another Precedent

With the project’s help, Lim Yun Nalin, a 37-year-old mother of four, set another legal precedent. Nalin spent much of her 14-year arranged marriage in fear of her husband, who beat her and their children--the children when they were as young as 2 months. Once Nalin suffered a fractured skull. She was rarely without bruises.

Plagued by gambling debts, Nalin’s husband demanded a divorce last year. He wanted to sell the house she had brought with her to the marriage. “I had never heard of a restraining order,” she recalled recently. But with the help of the defenders project, she won the first ever issued in Phnom Penh, blocking her husband’s sale of their home.

“He still ended up with $2,000 more than I did when the house was sold [for $7,000] as part of the divorce. But at least I got enough to start a business,” she said in the neat little downtown street stall where she peddles postcards, cheap perfume and magazines wrapped in plastic to protect against tropical humidity. Otherwise her ex-husband could have taken all the profits and left her destitute.

Another of 14 U.N. programs here is helping to rebuild justice from floor to ceiling. In Kandal, a town near Phnom Penh, bony cows and water buffalo still wander onto the grounds of the ochre-colored courthouse to wash in and drink from its pond, and songbirds still fly through its large open windows.

For the first time, however, prosecutors no longer sit on the judicial bench, with defense attorneys relegated to the back of the courtroom. The defense’s furnishings also are now on a par with the prosecution’s. A large outdoor bulletin board--open to the public for the first time--lists cases to be heard. And the court now has a room just for arraignments--a new procedure for a system in which cases once went straight to trial.

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To help the largely unschooled judges, most of whom get only a brief course on Cambodian law and courtroom protocol, another U.N. program has brought in “mentors.” Visiting judges from as far as Boulder, Colo., and Dhaka, the capital of Bangladesh, sit in offices across from courtrooms where they are available to discuss cases, help weigh the relevance of evidence or evaluate witnesses’ credibility. They also offer training to judges, prosecutors and even clerks.

“Judges now understand that they should be neutral, but we still don’t know how to make full use of the law in Cambodia. It helps to know about practices in other countries,” said Hy Sophea, the chief judge of Kandal, who shares a small office with two other judges, his clerk and his aging motorbike.

Police retraining is another critical component. It is conducted by local U.N.-backed groups and by Khmer Rouge death camp survivors such as Prak Sarun, a wizened ex-customs official who teaches at an old Phnom Penh pagoda where the luster of gold trim and pastel paint has been overpowered by mildew and cobwebs.

Barking through a microphone during a recent session, Sarun explained to about two dozen officers dressed in neatly creased khakis that arrests must now be made only after a judge issues a warrant, that torture is now an illegal way to get suspects to talk, and that suspicions are not enough to send a case to trial.

A Class for Police

“What happens when a suspect poisons someone to steal his motorbike but denies it when he’s arrested and we don’t have evidence?” asked a beefy village police officer named Un Narat. “Then later someone beats him and gets a confession. Which is more effective?”

“Breaking the law,” Sarun replied evenly, “is not the way to enforce it.”

More than 20,000 of the capital’s 80,000 police officers have taken the one-week course.

Elsewhere, the University of San Francisco law school staff has been teaching at the University of Phnom Penh, which this year graduates its first class, of about 100 law students.

Cambodia still has a long way to go to undo the damage wreaked by Pol Pot and by the subsequent decade of turmoil. Some of the programs also had to overcome the initial reservations of the government.

Several defenders have been given files of new clients, only to find verdicts already stamped inside. In court, many judges ignore the presumption of innocence guaranteed in the 1993 constitution.

One judge is noted for admonishing defendants: “You committed the crime, didn’t you? If you do not tell the truth, you will be punished more severely.”

The concept of “reasonable doubt” is also still unknown. The use of expert witnesses for such technical matters as forensics and mental health is also an alien idea. The Cambodian Defenders Project recently launched a series of training sessions to create the first cadre of expert witnesses.

Despite such challenges, the accumulated impact of Cambodia’s justice programs is beginning to be felt not just in the courts but throughout one of Southeast Asia’s most unstable societies.

“The political settlement wished democracy into existence and expected blood enemies to make it work,” said Brad Adams, chief of the U.N. Human Rights Center’s legal assistance unit.

“The problem is that there was no place to bring disputes, there has been no forum for resolution. So the courts, which were politicized before, now have to play that role. It’s the key step.”