Basil Fernando, former senior officer at the Human Rights Centre, United Nations Transitional Authority in Cambodia (UNTAC)
It is not a surprise that these people who have been engaged in protests and calling for change are not really talking about issues as to what happens to those who have been killed and what happens to those in prisons and things like that.
Why is it not a surprise? It is because the possibility of justice does not exist in Cambodia. The contradiction that has been there from the very beginning of the new period which began under the UN Transitional Authority of Cambodia (UNTAC) has continued up to the present day. Pol Pot’s regime wiped out whatever system that existed in Cambodia in terms of justice and democracy.
Of course that system that existed was also very limited one. It was a short period, after the French Revolution and the Monarchical system that was there was the very foundation of Cambodia for centuries. A small beginning of democracy was made in a few decades and that whole thing was wiped out during what happened during the Khmer Rouge. And the magnitude of what happened has been openly spoken in terms of the number of lives lost.
But what is not very much discussed is what happened to the peoples’ memory? What happens to the people? What happened to the understanding that was there collectively in the society? Certain understandings were there in the previous society about the fact that Monarchy had to be removed and that democracy was necessary. And that democracy always accompanied by a system of justice, executed, and implemented through a system of judicial institutions.
Now the overall understanding about that was already established during this period although the system that came about was not comparable to systems in developed countries. What understanding and collective understanding was there about that system? Now, with the physical extermination of all the educated classes, now when you say educated classes in Cambodia it is not really the elite, like those who has university degrees and things like that, but also the average person who will be intellectually interested on the issues of society and the issues of justice and things like that, including court clerks. Those who are capable of understanding; all of them were wiped out.
And about that, the next important issue is where the rebuilding of Cambodia took place, the new conception was introduce by the Vietnamese as mentors, there are people who are experts, who are put into work in various fields, and in many fields they did a great job. For example, the re-establishing of the whole agricultural set-up which was shattered during that period, clearing the basic roadways, beginning, even though slow and in small ways, the infrastructure. To that the Vietnamese also brought their conception of what the justice institutions are.
And that constitution idea was based on socialism. Because Vietnam at that time was a communist country, and their intellectuals were trained in the Soviet Union, and in many other Eastern European Countries. They invented at that time what was known as the socialist model of jurisprudence or the Stalinist model. The person who was mainly responsible for ideologically reshaping that was called Andrey Vyshinsky.
He was the one who reinvented jurisprudence, turning the liberal democratic principles the other way around. It was a complete turning upside down; a kind of liberal democratic understanding of justice. Justice in this set-up means the protection of the State. The state needs to be protected from anybody who challenges the State, anybody who protests, anybody who does not accept the ideology of the state, the functioning of the state, those who question, all the people who are threatening the State. So the principle was to turn the liberal democratic idea into the protection of the State from its own people. Citizens must behave as the state tells them to behave. It is the citizens who had to be shaped in a particular way of thinking, in a particular way of obedience.
Now that particular way of obedience is what the state structure was supposed to impose. So, the people who were appointed as judges with a very limited education for years were trained to act in this fashion. So the whole system which arose was kind of a system to protect the state from the citizen. That did not undergo a fundamental reform when the UN intervened. The reform started in 1992 leading to the 1993 elections, and to the 1993 Constitution at the end of the year.
In the development of these things, to achieve a reform of the system the constitution adopted the liberal democratic principles in the abstract. I think that in very few places there will be such a vast difference, vast disconnection between the constitution and the actual practice, what is actually happening in practice. So although the constitution looks very nice, there is separation of powers, independence of the judiciary, and all these things are there. There was no medium by which attempts were made to get these ideas transformed into the reform of the system that is based on the opposite principles.
There were neither intellectual discussions on those things, nor documents available to train people. It continued. The whole system continued. Whenever there is a conflict between the state and the individual there will be protection of the State. So if five (one of the victims has disappeared) people were shot dead, those five people will never get any relief by way of law in Cambodian courts. That really does not exist. There is no mechanism to investigate against the state. There is a certain rudimentary mechanism, like going into some things like small issues, like robbery or even murder; even that is not properly systematically developed in Cambodia.
But when it comes to a problem between the state and the citizens, no jurisprudence has been developed; there is no improvement. And this system cannot improve that. And if they try to improve that there will be an explosion, and probably anybody who tries to do that within the institutions will be sacked by the people who are running the state. In other words, there is no justice unless the government and the state agrees that on basic areas that there is space for protection of the people’s right, people cannot legally enforced rights so long as that apparatus is there.
Of course morally you can enforce rights. You can say that you have a right, but unless legally there are openings, like people going to courts and the courts to making decisions, that kind of system has never come into being.
The big contradiction that needs to be understood is that, the mere fact that the government signed and ratified some documents, UN documents or they may make sonstitutional provisions, does not mean that the system is changing. The system is institutions. What you would have to say is, what is this document, and how does this document relate to the institutions. What obligations do the institutions have to abide by these laws or obligations?
Within the institutions: the prosecutor, the investigator feels no obligation to follow this. So this will remain some kind of you know a book. So you have to create the obligation in fact, not merely by writing something. And that happens by way of the government and the sate agreeing that the institutions will have those powers, and that others are being convinced and trained that they have those powers. At the present time the judge does not feel that he has those powers, that he will be removed from his office the moment he tries to protect the rights of the individuals. That is what I said: books are books, institutions are institutions.
Institutions in Cambodia are run by other principles, not the principles in the constitution and the law books. So the judge of the prosecutors and anybody else has to abide by the instructions of the government. They are selected by the government by way of those criteria or their opinions of a particular ideology. So in those terms, the idea of justice did not enter into the institutions. What is happening lately is that the people are asserting their rights: we have rights and you have to recognize them, but the recognition process has not come yet. People are demanding and they are even sacrificing their lives, but there is no transfer of actual physical protest to a political discourse leading to legal and institutional reforms.
But the first step is taking place. The important thing is unless the people themselves begin to protest, the state on its own will not give the people their rights under those circumstances. So the fact that the people are asserting their rights is a beginning. But this beginning must consciously be brought, not into political discourse, but the political discourse leading into the discussion about the law, the discussion about the institutions, and how to reform the institutions. And this kind of discussion had never taken in place in Cambodia.
So that is the crux. The idea was so completely lost that justice can be achieved through institutions. It was so, for example, I have been saying in many places. During the UNTAC period, and immediately afterwards the UN Human Rights Centre. I have participated in discussions with the Ministry of Justice at that time. It was around 1990, the end of 90s period at that time. Now when we went and told the Minister that the judiciary needs independence he said, “Well, I will make them independent.” So, that shows that he did not even grasp the principle. He was not hostile, but he thought it was as simple as that. His thinking framework was this idea that there are institutions, and within those institutions there will be independent people, like judges and others, who will form independent opinions of their own, that basis does not exist. Those people must act according to his opinion. This is the idea.
The political authority thinks that the people who are working within the judicial institutions must act according to the opinion of the political leader. These people cannot form their own independent opinions in terms of principles of justice even though leaders may form their own opinion for their own reasons. But the judicial officers form their opinions on that basis. The judicial officers have to form their opinion on those terms, and there is no application of those principles base on rational decisions. When the judiciary act on the basis of opinion of these people, politicians, you have a vacuum. The court is another place where the political opinion of the government is reimposed.
So it’s an institution where political opinions of the government are reimposed. That space that should be there for judge, to see that I’m bound only to these laws and principles, that I will look at this facts on my own, meaning for him to form his opinion. This is that area that needs to be developed. This can’t come overnight. These are things that people have to fight for, and people themselves have to understand that beyond the political struggle, there needs to be an intellectual struggle for the people to understand: “what does justice mean?” and how to create a struggle for institutional change, not only for salary changes. It is very important to fight for salaries because justice is also about your need to have good way of living; that is what justice is also for. It is not the same thing. It is not completely equal. So there is a discourse on justice. So there have to be intellectuals in Cambodia to understand this, go to the people, educate the people, and bring this into a political discourse to create an institutional change.
Unfortunately this is an area which is even difficult for the UN to deal with because today if you are living in a developed country, a justice framework exists. If you make laws thereafter these institutions exist. This has happened for many, many years. For many reasons in their history that is how it happened. Now the UN leaders should understand that these countries, are not Europe.
Therefore to achieve standards that today Europe has achieved, the changes that need to come out from the ground has to be caused, not assumed. You can’t just assume it is there. You have to help them. The justice process, justice education, and people are made to understand these things. They must be educated on these things so that they will participate in changes. These did not happen in Cambodia for the last 20 years. There is certain area where in practical level there had been changes. The old fear to some extent has disappeared. But the people have no sense of protection, no sense that the state will protect their rights. They still have the idea that they have to live by the opinion of their political leaders. The government believes that everybody should live on the basis of their opinion.
Until that situation exists, there is not going to be justice. You can get killed. Somebody may erect a statue for you; but that is it. You know for them, for their family and for their future—in order to avoid that (killing) from happening—nothing has happened. So it can happen again.
The soldier does not think that: “I’m under obligation not to hurt the life of a person, not to hurt the liberty of a person.” He, on the basis of political opinion of the government and the State thinks, ‘I must carry out the opinion of the political leaders irrespective of anything. So everybody is made to think that all that matter is the opinion of the political leaders’. So everybody acts and conforms themselves on the opinion of the government. If you come in conflict with that, then you would also be punished. People will be punished if they do not obey the opinion of the government, not the law. There is no uniformity between the opinion of the government and the law. The government is above the law. There are some books of law. But people have their lives. They have their needs, and if they come in conflict with the government, at that point repression is used. And for that repression there is no protection.
What matters is that you conform to the opinion of the authority. You conform to the political authority. The real law is that. The judge must conform to that, prosecutor must conform to that, the investigator must conform to that, and everyone should conform. There is no investigator. The government should allow the investigator to investigate. Investigators are state officers. For this to happen, the state officers must (first) feel that he has to investigate according to law. But if he feels that he also needs to obey the political opinion of the government, then how can he investigate?
So the overreaching principle on which the Cambodian people live in is the political opinion of the government. So that transformation is what is needed, and for that (to happen) there has to be an understanding of that, by everybody, by the people, by the government, by the intellectuals. That is why there is no space for intellectuals in the country because it is the intellectuals who bring these things, who ask questions. They are the ones who bring all these.
So a state that is governed only by the political opinion of the leaders is not a state. The intellectuals also have this task to carry the opinion of the political leaders. So there is an intellectual dessert. No thinking, no creativity, no will to oppose anything. So within that set-up, because of their life condition, they conflict with the state. At that point the state will use repression, and for that there is no solution.
