Lawyering in ‘Limited’ DemocraciesPreliminary Reflections from Cambodia

OverviewProject IntroductionMethodologyBackground on Cambodia

DemocracyRule of law

Lawyering within contemporary CambodiaRole of the Bar AssociationPolitical lawyeringThreats against lawyersRole of lawyers in Cambodia

Lawyers, Conflict & Transition ProjectExplore the role of lawyers in societies

undergoing or transitioning from violence or authoritarianism – within and outside the courtroom

Case studies: Cambodia, Chile, Israel, Palestine, Tunisia, South Africa

Collaborative project – QUB Law & TJIFunded by ESRC

Research QuestionsHow do lawyers respond to extreme political violence and state

repression?What is the role of lawyers in social movements?What is the role of legal collectives (e.g. bar councils, law societies)?How do lawyers contribute to understandings of the ‘rule of law’ in

conflict and transition?What effect do litigation strategies have on events outside the courts

in conflicted and transitional societies?To what extent do local lawyers engage with international law and

international legal actors? How what impact does this have?How significant is the issue of gender in determining the role of

lawyers?How relevant are lawyers to political negotiations?How do lawyers contribute to efforts to ‘deal with the past’?

Methodology re CambodiaTheoretical literature reviewWorked with ‘local’ researcher

Background paper on Cambodia Fieldwork logistics

Research instrument23 interviews Mar 2014 with 37 individuals – inc.:

Human rights lawyers, including defence lawyers Government lawyers Private practice lawyers Public interest law groups International lawyers working within ECCC or with NGOs National lawyers working within ECCC Judges Civil society activists Academics

Now in data analysis phase

Rationale for Case StudyInterested in the intersection between

local and international lawyers in hybrid model, egSite of legal pluralismCapacity building‘Overselling’ the legal product in TJPolitical interferenceHuman rights as neo-imperialism

Presentation focuses on domestic system

Democracy in Cambodia?Constitutional monarchy

King Norodom Sihamoni - head of stateElected Prime Minister, Hun Sen

(Cambodian People’s Party), the head of government

Bicameral parliamentUN Special Rapporteur (2013) ‘while

the Constitution of Cambodia speaks of a liberal democracy, in reality the situation is akin to a limited democracy in many respects.’

2013 Elections2013 election CNRP opposition 55

seats, CPP 68 seatsBut allegations of vote rigging etc led

to Mass demonstrations Opposition refusing to take seats in the

assemblyState responded violentlyStill no political agreementOpposition filed complaints against a

govt official for ordering violenceWorking on ICC complaint

Rule of Law in Cambodia1993 Constitution guarantees an independent

judiciaryWorld Justice Project Rule of Law Index (2014) –

measures e.g. checks on government power, absence of corruption and fundamental rights Cambodia ranked 91 out of 99 nations Worst score in East Asia & Pacific region

Key problems include: Impunity Poor respect for freedom of expression Weak judicial independence Limited judicial capacity Little public confidence in legal system

Theoretical FrameworkMost literature on lawyers relates to democratic

statesPolitical and rule of law context in Cambodia

closer toAuthoritarian regimesConflicted democracies

Limited literature on lawyering in these contextsAssumptions differ from literature on democratic

societiesCambodian experience evaluated against four

themes from this literature

(1) Role of the Bar AssociationAssumptions from literature (eg Bonelly

2003, Terence 1999, Davis 2011)Bar as centre; cause lawyers as peripheryBar as ‘thin’ conception of rule of law; cause

lawyers as ‘thicker’ conceptionsBar as technical, non-political; cause lawyers as

explicitly political

Bar Association of CambodiaTheoretical assumptions hold true in

Cambodia because of political control of the Bar, egHun Sen appoints himself as memberInterference in Bar Association electionsRegulates entry to the legal profession –

systematic corruptionUsing Bar disciplinary procedures to sanction

lawyers perceived to be opposing the stateRequires lawyers to seek approval before

speaking to media

(2) Parameters of ‘Political’ LawyeringWhere the rule of law is undermined by state:

Even ‘thin’ demands for rule of law seen as transformative political demands

Any legal challenge to state power or public officials is a-priori a political move

Under authoritarian regimes ‘cause lawyers’ may beThose who dedicate themselves to explicitly political strugglesThose who litigate for fundamental or property rights of

individuals who do not otherwise engage in manifest political opposition

Political Lawyering in Cambodia Evolution of human rights ‘causes’

Post 1991 Paris Peace Accords: Targeted assassinationsTorture

Contemporary human rights issuesLand grabbingFreedom of expressionGender-based violence

All lawyers in human rights NGOs viewed as opposition

(3) Threats and SanctionsChallenges to state can carry risks for

lawyers in authoritarian regimes or conflicted democracies, egPhysical violence or exileProfessional sanctions

Impact on lawyersCan shape their identity and demarcate them

from conventional lawyersMay want to play down the ‘cause’ element

in their work

Attacks on Lawyers in CambodiaCriminal charges or disciplinary sanctions for eg

taking cases against govt or powerful peopleComplaints for eg incitement or defamationCharges withdrawn if lawyer resigns from case and

joins CPPBlocking trainee lawyers from human rights

NGOs entering the legal professionRestricting legal aid

Role of Lawyers in CambodiaMany Cambodian lawyers explicitly described their role in

society asRaising public awareness of the law and their rightsSome careful to assert this in technical termsOthers linked greater rights awareness to enhanced prospects for

political transformationSome NGOs or public interest law groups explained strategies of

cooperation, not confrontation:Participation in drafting of legislationTraining state agentsFacilitating or mediating between different stakeholders

These activities all resonate with what the literature suggests woud be actions of lawyers working within state (NeJaime 2012)

ConclusionCambodia has transitioned from the

Khmer Rouge period, but transition to democracy is stalled

Exploring the role of lawyers in Cambodia society Highlights limitations of the rule of law Demonstrates the impact of political

interference and corruptionBut also suggests the role of human rights as

a catalyst for greater political transformation