TRANSPARENCY ALWAYS

TRANSPARENCY ALWAYS

Norman Henry Pentelovitch

Documentation Center of Cambodia

Today, the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) will hold a “directions hearing,” which is aimed at ensuring readiness for the first public hearing of the ECCC. The ECCC previously scheduled the hearing to be held in public, but it has since reversed course, and the hearing will now be closed to the public. The Pre-Trial Chamber attributes this change to a request by the prosecutors and defense attorneys. The Court’s internal rules specify that the hearings of the Pre-Trial Chamber are to be held in private unless a judge or party requests a public hearing, which the Pre-Trial Chamber may then approve. If such a request is made, the Pre-Trial Chamber can decide whether or not it should be in public.

The Pre-Trial Chamber has not stated a reason that the hearings should be held behind closed doors, except to suggest vaguely that this “preparatory hearing” is more suited to being held privately. It is the responsibility of each individual at the Tribunal to make the proceedings as transparent as possible, and here the judges of the Pre-Trial Chamber should keep the “directions hearing” open to the public to promote transparency and understanding of the ECCC by Cambodians.

The Pre-Trial Chamber, as well as the Prosecutors and the Defense Support Section should be working to make the proceedings of the ECCC available to the public. Particularly given recent criticisms of the court for withholding a United Nations Development Programme (UNDP) report commenting on misallocation of funds and improper hiring practices, the ECCC should be taking every opportunity possible, consistent with fair and impartial processes of justice, to make all aspects of the Tribunal public.

There has also been criticism from various civil society groups of the discretion that the Tribunal can exercise to keep its proceedings private. For instance, the rules say that judicial investigations will not be conducted in public, but that the Co-Investigating Judges can issue information about a case to the public to keep the public informed (emphasis added). Similarly, the rules state that the Co-Prosecutors may provide the public with an objective summary of information contained in their submissions, but are not required to (emphasis added). The reason for such latitude is that the court is “mindful of the need to ensure that the public is duly informed of ongoing ECCC proceedings. Both of these rules have a presumption of confidentiality that must be overcome by a specific effort to make proceedings public. The decision to close the “directions hearing” to the public reflects a lack of such an effort, and potentially sets a dangerous precedent for future transparency.

Many scholars have noted that international criminal tribunals, particularly “hybrid” tribunals such as the ECCC (and the Special Court for Sierra Leone), provide the opportunity for domestic legal systems to utilize the example set by the Tribunal as a standard which other judicial processes in the country can aspire to. By keeping proceedings, even specialized proceedings like a “directions hearing” private, no lessons can be learned and no examples can be set for the Cambodian legal community.

The fact that a “directions hearing” is strictly a procedural matter as opposed to a substantive one is all the more reason to make it a public process. Much of the trial proceedings of the ECCC will occur beyond the view of the public. There are good reasons for doing this in some cases, such as protecting witnesses from reprisal, or protecting victims from the prying eyes of the public when the victims request privacy. However a judicial process is a series of steps, from investigation, to indictment, to trial, to decision, to sentencing, with numerous sub-steps along the way. Attempting to demonstrate a fair judicial process cannot be accomplished by showing fragments of the whole.

A study conducted by a Cambodian NGO in 2006 has found that there is not a widespread understanding of judicial processes in Cambodia . Given the country’s complex legal and political history—characterized by a fusion of different legal traditions and series of different constitutions—that finding is hardly a surprise. As much as possible, the ECCC should be striving to take advantage of every opportunity to open its proceedings to the public in order to help Cambodians begin to understand what a judicial process looks like. Some may argue that only the most important and determinative of judicial proceedings should be made public to avoid confusing Cambodians about what is occurring at the Tribunal. However, that argument fails to account for the overall effect that a broad dissemination of information about the Tribunal can have. By sensitizing Cambodians to the fact that proceedings are occurring at all, it may be more likely that as the trials begin Cambodians will already have a sense of how the judicial process works and be in a better overall position to assess the trials and judge whether justice is done.

The Pre-Trial Chamber, Co-Prosecutors, Co-Investigating Judges, and other organs of the court should capitalize on every opportunity to make information regarding the ECCC public that won’t be prohibitive of fair and impartial justice, be it a preliminary hearing or a decision on criminal culpability. The ECCC is a tribunal for the Cambodian people, and the actions that it takes should reflect this mandate.