December 5, 2009 · 00:48

Will the Rule of Law Bring Back the Khmer Rouge in Cambodia?

Hun Sen has periodically warned the Khmer Rouge Tribunal (KRT) risks reigniting reopening old wounds if it expands its jurisdiction beyond the five Khmer Rouge leaders already on the docket.* According to The Straits Times, he claimed:

I am not interfering with the court. But it is not the court that stopped the war. Be careful – the court will create war, causing division of society again,’ Hun Sen said in a speech in the capital Phnom Penh.

Obviously, this claim is self-serving, as many suspect Hun Sen fears the KRT could upset his allies, both among the ruling elite, local villages, and abroad. However, does he have a point? Could international criminal courts actually prevent political and societal reconciliation? 

I’ve always been a bit disturbed by the fact that  it seemed to be Western lawyers, rather than Cambodians themselves, who really demanded justice for the crimes of the Khmer Rouge. Despite the KRT’s many problems, there probably isn’t much evidence to support the claim that post-conflict justice might actually reopen old wounds. Many international criminal courts actually face the opposite problem. For example, the International Criminal Tribunal for Rwanda suffers from local credibility problems, especially because most Rwandans do not have TV or radio and cannot follow court proceedings (the ICTR is located in Arusha, Tanzania). The International Criminal Court has run into its own credibility problems, such as being unable to enforce an arrest warrant for Sudanese President Bashir. 
Certainly, the Cambodian people do not support impunity – in fact, if the data in this poll are still accurate, upwards of 97% of Cambodians support trials against Khmer Rouge leaders (I apologize, I couldn’t find more recent polls). However, the KRT seems destined to suffer its own credibility problems. First of all, the delay – it is now over 30 years since the overthrow of the Khmer Rouge. Second, the KRT’s hybrid structure means that Western and Cambodian prosecutors and judges must agree on whether to initiate more prosecutions against other Khmer Rouge leaders – and very often they haven’t agreed. Public participation also seems low. Of the 17,000 victims at Duch’s S-21, only 169 civil parties have come forward to the prosecution. It seems the real fear isn’t, as Hun Sen claims, renewed civil war, but rather the gnawing sense that the KRT will not satisfy public demands for justice.
* Prison Chief Kaing Guek Eav (a.k.a. Duch), whose trial concluded last week, as well as propagandist Nuon Chean, former president Khieu Samphan, foreign minister Ieng Sary, and his wife, former minister of social afairs Ieng Thirith.

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December 2, 2009 · 20:01

Literature Review: Burma had the first lawyers in Asia?!?

Citation: Myint Zan, Woe Unto Ye Lawyers: Three Royal Orders Concerning Pleaders in Early 17th Century Burma, 44 The American Journal of Legal History 40-72 (Apr. 2002)

Today, we think of the Burmese legal system as, if anything, a farce. Andrew Huxley, Buddhist law historian at SOAS, famously claimed that since 1988 the military has delegalized the entire system. Lawyers and judges are widely considered corrupt or incompetent. Yet, it was not always so. Before British colonialism, the Burmese empire had one of the most advanced legal systems in Asia.
Given our stereotypes about Burma (and Asia more widely), it might be surprising that lawyers played an important role in pre-colonial Burmese society. According to Huxley, Burma was “the only country between Japan and the Middle East to develop a legal profession independently of European influence.” Historians differ over when the first Burmese lawyers – the shay-nay – began their practice. Burmese Buddhist legal mythology (yes, there is such a thing) places lawyers way back in the 5th century B.C. Some Burmese historians, such as Dr. Maung Maung, claim lawyers existed even during the Pagan era. However, scholars place the latest date for the development of lawyers at 1550.
According to Myint Zan’s article, lawyers had become such a pest that the government had to regulate them. In 1607, King Anauk Hpet Lun (1606-28) issued three edicts regulating the legal profession.

1) Royal Order A

The first order prescribes a code of dress for the shay-nay: a conical hat, cloth-sling bag, carrying cup, and fan. It regulates attorneys fees to 37.5 ticals of copper. Perhaps most interesting, the order prohibits lawyers from living within the royal city walls because – I love this – “shay-nay could not help themselves from breaching the Buddhist precept against telling untruths on a daily basis.” Yes, in 1607 the Burmese king did not want lawyers to sully his court because they lie too often!

The Burmese people criticized lawyers as habitual liars long before the rest of Asia even had lawyers – and hundreds of years before the rise of ambulance chasers in America. Burma accumulated quite a repertoire of lawyer jokes. One of my favorites: “the tongue of a lawyer would not burn even in the fires of hell.”

2) Royal Order B

King Anauk Hpet Lun issued another edict regulating oral advocacy in the courtroom. The edict lists the 10 permissible styles of argumentation. This list isn’t simply about roadmapping your legal argument. They 10 styles include exotic techniques such as “duck and weave as though running away from an elephant” and “a cock’s retreat and attack.” I never studied anything like this on for the Federal Rules of Civil Procedure! Fortunately, Myint Zan provides wonderful explanations for each. For example, “duck and weave as though running away from an elephant” means evasive speech (i.e., evading an elephant). A “cock’s retreat and attack” is somewhat similar to our expression of letting somebody “hang himself with his own noose.” In the U.S., the closest equivalent might be the Model Rules of Professional Conduct or the Federal Rules of Evidence, which govern attorneys’ conduct during litigation.

3) Royal Order C

This order is both the most complex and interesting edict. It governs judicial procedure and judicial conduct. Under the edict, judges are supposed to interrogate both sides of a dispute, somewhat like the inquisitorial system in civil law countries. The judge’s role was to listen to all the testimony, weigh both sides, and discern the truth. Myint Zan also argues that the edict gives judges some discretion to interpret Buddhist law to fit the contemporary context of the dispute in the case. This has been interpreted by some scholars as the stirrings of judicial independence.

The article is an excellent piece of historical legal scholarship. The edicts employ colorful similes and examples. Myint Zan does a great job navigating the Western reader through these cultural nuances. Sadly, the British uprooted much of Burma’s legal tradition after 1886. However, scholarship like Myint Zan’s will hopefully help the Burmese legal profession regain a sense of professional pride and independence that it so desperately needs.

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November 27, 2009 · 04:25

Of Geckos and Crocodiles

When the Washington, D.C., think-tank crowd gathers for an event on legal reform in Indonesia, you know a major scandal is brewing. At a CSIS event earlier this week, November 23 2009, Michael Buehler, of Columbia University’s Weatherhead East Asian Institute, discussed the ongoing controversy surrounding Indonesia’s Corruption Eradication Commission (KPK). Appropriately titled Of Geckos and Crocodiles,” the talk discussed the KPK (nicknamed the geckos), and its failure to root out vested interests in the police and judiciary (the crocodiles).
Buehler began his talk with a tour de force of Indonesia’s current anti-corruption legal framework. He later discussed the institutional capacity of Indonesia’s legal institutions, particularly the KPK. As of 2009, the KPK has a staff of 400 and a budget of $22 million – an obvious improvement over the Suharto era, but miniscule compared to its counterparts in Hong Kong and Singapore. According to Buehler’s data, the the KPK Corruption Court (TIPIKOR) handled over 30% of all corruption cases in the country. Impressively, it has a 100% conviction rate against defendants, versus less than 40% in the regular judiciary. However, most of those officials convicted in the TIPIKOR have been lower-level officials rather than the “big fish.”

Unfortunately, the SBY administration watered down the legal basis for the KPK and TIPIKOR in the Corruption Court Law of 2009. Previously, TIPIKOR judge panels consisted of a mix of ad hoc and career judges. The former were seen as more independent than the latter, who often must please superiors to receive promotions. However, the new law would replace the ad hoc judges entirely with career judges. Furthermore, the district court chief judge can alter a panel of TIPIKOR judges at will, even further weakening their independence. The law also establishes a branch of the TIPIKOR in all 33 provinces, but some critics allege that this would simply stretch the KPK’s already limited resources too thin.

Buehler made an interesting point about the “legal mafia.” According to a study he recently conducted, Indonesian conglomerates pay tuition for law students and recruit them to serve in the judicial service. Then, when they graduate, the conglomerate knows it has a network of loyal judges throughout the district courts. I am in the process of tracking down this report and will post comments as soon as possible.

The Istana Merdeka announced a policy that resembled traditional Javanese aloofness more than the vigorous activism legal reformers had hoped for. According to BBC, SBY has suggested the two KPK officials – Bibit Samad Rianto and Chandra Hamzah – should not face trial, but also resisted pressure to interfere directly in the case. SBY hinted that the scandal should be settled out of court, i.e. that nobody would face justice on corruption charges. Buehler criticized this as sending precisely the wrong message about corruption, and that’s certainly the image foreigners have taken away from this scandal.
While far from blameless, one thing that bothers me about all of these attacks on SBY is that they seem to ignore the finer points of Indonesian law. Any American lawyer knows that the president cannot simply intervene in an ongoing prosecution. Just imagine the outcry if President Bush had publicly condemned Patrick Fitzgerald’s prosecution of Scooter Libby for outing CIA agent Valerie Plame. As the Economist pointed out, it’s ironic that legal reformers are now criticizing SBY for refusing to take a similar action. As lawyers, we should be concerned with process as well as justice. Just because Bibit and Chandra are sympathetic figures on the side of righteousness, it wouldn’t make a good precedent for the president to take extra-constitutional steps to protect them. Unfortunately, this is not the first or last time legal reformers have urged foreign governments to take certain reforms without considering local context.

Note: if you haven’t been following the story, check out BBC’s Q&A about the scandal.

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Filed under corruption, indonesia, KPK, Michael Buehler

November 20, 2009 · 18:44

New UN Rule of Law Website and Document Repository

In yet another sign of the increased focus on the rule of law in the development community, the U.N. recently launched a website for its Rule of Law projects. The site connects all of the various U.N. agencies that work on rule of law projects and makes their research accessible to the public. Unfortunately for Rule by Hukum, the site does not categorize projects by country or region, so the only interview you’ll get of the U.N.’s rule of law work in Southeast Asia is a brief summary at the bottom of the homepage.

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November 18, 2009 · 21:23

ABA Rule of Law Update 2009

I thought I’d post this useful link in case anybody who reads this blog is interested in the American Bar Association’s rule of law projects in Southeast Asia. The ABA’s Perspectives from the Field 2009 Update was actually held back in March, but I recently had to find the link again for something I am working on. It contains presentations by ABA staff from Cambodia, Thailand, and the Philippines, as well as a panel on China. Podcasts on all of the sessions are free and easy to download. Here’s the link:

http://www.abanet.org/rol/perspectives_09/podcasts.shtml

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