Courts Making Illegal Use of Clerks: Experts

Courts Making Illegal Use of Clerks: Experts

Court clerks throughout Cambodia are unlawfully undertaking the work of prosecutors and investigating judges, according to legal experts, a practice which under the letter of the law should nullify criminal or civil cases whose investigation were conducted in such a manner.

Sok Sam Oeun, executive director of legal aid NGO Cambodian Defenders Project, said by telephone Thursday that since 1994, court clerks have been illegally interviewing suspects, witnesses and victims-work that falls far outside their jurisdiction.

"It's become common in Cambodia," Sok Sam Oeun said, adding that the role of the court clerk is to take notes while a judge or a prosecutor conducts interviews, but more often than not, the clerks are allowed to do the work themselves.

Ny Chandy, Model Court Project manager for Legal Aid of Cambodia, said that because the illegal practice goes against court procedures it should result in the nullification of up to 40 percent of all court decisions.

"Clerks can't do the work of the prosecutors and judges. They only have the role to take notes," Ny Chandy said. "If they do, the whole procedure must be annulled," he said.

"It is illegal and makes it so you can't find justice for the victim or defend the rights of the accused," he added.

According to article 128 of the Criminal Procedure Code, court clerks doing the work of judges is prohibited.

"Regardless of any case, a clerk can not fulfill the duty as the authority of investigating judge," the article states.

Answers from senior court officials varied Thursday when questioned about the longstanding but illegal practice.

Phnom Penh Municipal Court Director Chiv Keng, who also sits on the Supreme Council of Magistracy, Cambodia's top authority on judicial procedure, all but denied that clerks had ever done the work of investigating judges or prosecutors.

"Judges in principal lead the questioning process," he said. "No clerks arbitrarily do the work by themselves."

Municipal Court Chief Prosecutor Ok Savouth confirmed Thursday that his clerks had conducted interviews, but only if ordered by prosecutors to do so.

"They received the list of questions from the prosecutors to do the questioning," he said. "If they question by themselves, it's against the law."

However, Phnom Penh Municipal Court Chief of Clerks for the Prosecution Prak Savouth said Thursday that clerks always conduct interviews by themselves.

"Court clerks are the ones who always do the questioning," Prak Savouth said, adding that clerks do not swear oaths to uphold the laws of the country, as judges and prosecutors must do to hold their positions.

Justice Minister Ang Vong Vathana said he was too busy to speak to reporters Thursday.

According to Justice Ministry Secretary of State Meach Sam On, the practice of clerks conducting interviews is illegal, but due to understaffing, it's a necessary illegality.

"We understand that it is illegal, but it helps facilitate the work of the judges," Meach Sam On said, adding that once a clerk finishes questioning, the judge should verify the clerk's notes for accuracy. Meach Sam On did not explain how such accuracy could be ensured after the fact. He also said that decisions on cases, in which clerks have conducted the questioning, should not be annulled.

"The clerk questions and if the judge refuses to take it, it will be done again," he said.

One foreign resident of Phnom Penh who was summoned to the court over a sensitive civil case recently recounted being interviewed by a young clerk in his early 20s.

He claimed that the clerk became angry with him when the resident refused to participate in questioning conducted by the clerk.

"The clerk had already started filling out the questioning form and then launched into questions of his own," said the resident on condition of anonymity for fear of retribution by municipal court officials.

"When I told the young clerk I would only be interviewed by the person whose name was on the summons-a deputy prosecutor-he responded angrily saying 'this is how the courts work.'"
According to the resident, a second older clerk then entered the office reeking of alcohol. Upon being told that the situation by the young clerk, the older clerk responded in a "surly manner" and told the resident to return in the afternoon, the foreign resident said.

After returning in the afternoon, the older clerk, who like the younger clerk had not identified himself, tried twice to begin the questioning again by opening the case file in front of the resident and asking for comment on the enclosed material. The deputy prosecutor did not turn up after almost two hours wait at which point the resident asked to leave the courthouse.

Ham Sunrith, deputy director of the monitoring and protection unit at local human rights group Licadho, said the power of the clerks has created confusion within the courts, as judges and prosecutors don't get their information about a case first-hand.

Judges and prosecutors "are the ones who have legal skills and the power to make decisions," Ham Sunrith said, adding that without doing the interviews themselves, judges and prosecutors might not fully understand the cases presented to them, and must simply rely on the word of a clerk.

"They may make decisions without understanding the case in depth," he said. (Additional reporting by James Welsh)