Lawyering in ‘Limited’ Democracies

1. Lawyering in ‘Limited’ Democracies Preliminary Reflections from Cambodia

2. Overview • Project Introduction • Methodology • Background on Cambodia • Democracy • Rule of law • Lawyering within contemporary Cambodia • Role of the Bar Association • Political lawyering • Threats against lawyers • Role of lawyers in Cambodia

3. Lawyers, Conflict & Transition Project Explore 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 & TJI Funded by ESRC

4. Research Questions How 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’?

5. Methodology re Cambodia • Theoretical literature review • Worked with ‘local’ researcher • Background paper on Cambodia • Fieldwork logistics • Research instrument • 23 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

6. Rationale for Case Study • Interested in the intersection between local and international lawyers in hybrid model, eg • Site of legal pluralism • Capacity building • ‘Overselling’ the legal product in TJ • Political interference • Human rights as neo-imperialism • Presentation focuses on domestic system

7. Democracy in Cambodia? • Constitutional monarchy • King NorodomSihamoni- head of state • Elected Prime Minister, Hun Sen (Cambodian People’s Party), the head of government • Bicameral parliament • UN 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.’

8. 2013 Elections • 2013 election CNRP opposition 55 seats, CPP 68 seats • But allegations of vote rigging etc led to • Mass demonstrations • Opposition refusing to take seats in the assembly • State responded violently • Still no political agreement • Opposition filed complaints against a govt official for ordering violence • Working on ICC complaint

9. Rule of Law in Cambodia • 1993 Constitution guarantees an independent judiciary • World 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

10. Theoretical Framework • Most literature on lawyers relates to democratic states • Political and rule of law context in Cambodia closer to • Authoritarian regimes • Conflicted democracies • Limited literature on lawyering in these contexts • Assumptions differ from literature on democratic societies • Cambodian experience evaluated against four themes from this literature

11. (1) Role of the Bar Association • Assumptions from literature (egBonelly 2003, Terence 1999, Davis 2011) • Bar as centre; cause lawyers as periphery • Bar as ‘thin’ conception of rule of law; cause lawyers as ‘thicker’ conceptions • Bar as technical, non-political; cause lawyers as explicitly political

12. Bar Association of Cambodia • Theoretical assumptions hold true in Cambodia because of political control of the Bar, eg • Hun Sen appoints himself as member • Interference in Bar Association elections • Regulates entry to the legal profession – systematic corruption • Using Bar disciplinary procedures to sanction lawyers perceived to be opposing the state • Requires lawyers to seek approval before speaking to media

13. (2) Parameters of ‘Political’ Lawyering • Where 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 be • Those who dedicate themselves to explicitly political struggles • Those who litigate for fundamental or property rights of individuals who do not otherwise engage in manifest political opposition

14. Political Lawyering in Cambodia • Evolution of human rights ‘causes’ • Post 1991 Paris Peace Accords: • Targeted assassinations • Torture • Contemporary human rights issues • Land grabbing • Freedom of expression • Gender-based violence • All lawyers in human rights NGOs viewed as opposition

15. (3) Threats and Sanctions • Challenges to state can carry risks for lawyers in authoritarian regimes or conflicted democracies, eg • Physical violence or exile • Professional sanctions • Impact on lawyers • Can shape their identity and demarcate them from conventional lawyers • May want to play down the ‘cause’ element in their work

16. Attacks on Lawyers in Cambodia • Criminal charges or disciplinary sanctions for eg taking cases against govt or powerful people • Complaints for eg incitement or defamation • Charges withdrawn if lawyer resigns from case and joins CPP • Blocking trainee lawyers from human rights NGOs entering the legal profession • Restricting legal aid

17. Role of Lawyers in Cambodia • Many Cambodian lawyers explicitly described their role in society as • Raising public awareness of the law and their rights • Some careful to assert this in technical terms • Others linked greater rights awareness to enhanced prospects for political transformation • Some NGOs or public interest law groups explained strategies of cooperation, not confrontation: • Participation in drafting of legislation • Training state agents • Facilitating or mediating between different stakeholders • These activities all resonate with what the literature suggests woud be actions of lawyers working within state (NeJaime 2012)

18. Conclusion • Cambodia 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 corruption • But also suggests the role of human rights as a catalyst for greater political transformation