អំពើនៃឆន្ទះ

Interesting quotations

I just watched half of an Indian movie talking about love of two people: an Actor Vee from India and an Actress Sara from Pakistan. Among others, I like three phrases as quoted:

“សារា សូមនាងផ្តាំទៅឪពុក ម្តាយរបស់នាងផងថា ខ្ញុំសូមអរគុណនូវគុណតំលៃ ដែលពួកគេបានផ្តល់មកឲនាង”

“វី ប៉ាជឿជាក់ថា សារា នាងមិនធ្វើឲឯងធ្លាក់ពីលើកងឡើយ និងមិនបណ្តោយឲឯង ជិះទៅរកផ្លូវខុសទេ”

“សូមនាងចង់ចាំថា នៅឯជាយដែន មានមនុស្សម្នាក់ហ៊ានស្លាប់ដើម្បីនាង”

Criminal Procedure Code of Cambodia

I have tried to find out the Cambodian Criminal Procedure Code for a long time on the Internet, but I could not find one. Finally, I found one website which has recently uploaded the Criminal Procedure Code of Cambodia, and I would like to post links to this website because this code is very important for Cambodia and her people. There are two versions of this code: one in Khmer and one in French. We are still waiting for another version of English. At this moment for the Khmer and French versions, please click the following links:

1. ក្រមនីតិវិធីព្រហ្មទណ្ឌ​ ឆ្នាំ ២០០៧
2. Code de Procédure Pénale du Royaume du Cambodge

The two versions linked above were uploaded by the Office of the High Commissioner for Human Rights (OHCHR Cambodia). You can also access to other laws and regulations on this website through Khmer Law Compilation. I hope this post is useful for students and researchers in law who have no access to hard or printed copy of this code.

Cambodia: $4000 Costs A Life

In one article of Koh Santepheap, I have learnt that a guy was killed by a car driven by a wealthy and powerful man in Cambodia (click here to read this news).  What happened after the accident? A license plate was removed by the police who said to the killer that: “Don’t worry. It wasn’t your mistake. It was the motorbike driver’s mistake.” A case was then closed after the killer paid 4000 US Dollars to the family of the victim (click hereto read it). I called the driver a killer because he did kill that guy regardless of whether it was intentional or unintentional. An Information Minister commented on this issue, and I will give my own opinion on these comments.

First, he told a reporter that “Normally, there is one problem in Cambodia. When a car hits any person, a license plate is removed if the driver wants to sell it. If keeping the license plate, no one will buy this car.” This is the reality in Cambodia. But, it should be the owner of the car who did it, not the police. Then, why the police had to care about whether or not the car could be sold after the accident? Or did the police try to keep the value or to protect the private interest of the driver? I scanned the law on the land traffic, but I could not find any article which allowed the police to do that. One journalist pointed out a doubt that the police tried to conceal the identity of the driver (read the second article mentioned above). Is it possible that the Information Minister gave his comment without legal basis, and then pointed out the reality to justify the removal of the plate?

Second, the Information Minister commented what remedies were available when one car hit a man. He said that in other countries, there are two types of remedies: monetary and penalty (criminal punishment). But, under the Cambodian law, “if hit, compensate the victim,” he continued. He pointed out that this point was different from other countries. His statement is not based on the law on the land traffic, and one can argue that the Minister knew nothing about this law. Concretely, let’s see what stipulated in the Law:

Article 69: “The drivers might be responsible for both penal and civil codes to the offenses [for both civil and penal offenses] that they have committed in driving the vehicles.“  Article 81: “Those who are driving by unintentionally provoking the permanent injuries to the others shall be imprisoned from one year to three years and/or fined from 2,000,000 Riels to 6,000,000 Riels.“ Article 82: “Those who are unintentionally driving and provoking the death accident to the others shall be imprisoned from one year to three years, and/or fined from 2,000,000 Riels to 6,000,000 Riels.” Article 83: “Those who are willingly driving and causing the injuries, disabilities, or death to the others will be punished in compliance with the penal code.“

I dont know why the Minister who is also the spokesman of the Country could argue that without a legal basis.  He knew nothing about this law, but gave comments on that. Or does he mean that we can hit any person as long as we can pay the monetary damages to the victim or his/her family? If so, his argument is not reflected by the law in the book, but by the law in action. Indeed, it reflects the reality in Cambodia where law enforcement is lax and subject to the rich. In this case, the rich just paid 4000 us dollars, he could escape from the law suit. This is the country where the lives of the poor are totally different from the rich and where the rich could buy their lives for a little amount of money. The rich do not need an expressed law to enforce this transaction, but the current system, such as corruption, bribe, and impunity, embedded in this country could help them to effectively carry it out. This is where we should start to reform not only through law enactment, but law enforcement. To start it is to reform the current corrupted and failed system.

Law and Politics in Cambodia: Again and Again

The question of law and politics have become a central point for discussion among politicians, law makers, scholars, and civil society for almost every time immediately after the national election have just finished. In 2003, there was a remarkable event where the Cambodian Constitution was amended to solve the political deadlock. Since the 1993 the first year when the Constitution was adopted, many amendments have been made to accommodate and resolve political deadlocks. This raises a question of how law and politics interact with each other to solve the political deadlocks while at the same time to observe main principles such as the principle of separation of power and fundamental rights. While the problem has still been subject to discussion and have not been solved, the 2008 national election has brought the same problem that I believe we should pay more attention to it.

According to the announcement of the national election provisional result by National Election Committee,  the CPP gets 91 seats, the SRP gets 26 seats, Human Right Party (HRP) 3 seats, Funcipec 2 seats, and Norodom Ranariddh Party (NRP) 2 seats. The CPP will make a coalition with Funcipec to have a total seats of 93 seats, and the SRP, the HRP, and the NRP have made a democratic alliance to have a total number of 31 seats. This democratic alliance has just recently announced that they rejected the result of the national election, and their position, especially SRP, is about to boycott the first meeting of the near-future-established national assembly.

For the CPP, if the democratic alliance boycotts this first meeting, they are going to share the 31 seats whereby 15 seats will be given to the CPP and 16 will be given to the Funcipec. Then, it comes to the legal question of how to share these seats under the laws. The main discussion will focus on Article 76 of the Constitution which saying that “The assembly consists of at least 120 members.” The democratic alliance will base on this article to argue that without their participation, the requirement of at least 120 members cannot be fulfilled. It means that the National Assembly cannot be established without their seats.

The CPP takes a different position and argues that if the democratic alliance does not attend the first election, it means that they abandon their seats; therefore, their seats can be shared among other parties (See Cheam Yiep, the Cambodia Daily, August 5, 2008). There is no legal ground to reach to this conclusion. The Constitution does not say so and the Election Law does not make clear too. For these reasons, how the boycott can lead to the abandonment of the seat will be subject to the interpretation. The Constitutional Council will play an important role in this matter, but Hun Sen said that the Constitutional Council has already interpreted this. I cannot find which decision of the Constitutional Council on which he based to conclude this.

Even though, the CC has not interpreted it, it is believed that the CC will interpret in favor of the CPP. It does mean that law and politics distinction will depend on the neutrality and independence of the CC, but I think the CC will not go in that way. In this case, politicians are going to use law to get power to control this country, and the only result the democratic alliance will get if based on legal argument is a loss.  So the democratic alliance should use other strategies to win this battle.

Nevertheless, Chhim Phalvorun makes a very interesting argument that the political parties should bear two important responsibilities (See the Mekong Times, August 4, 2008). First, it is the legal responsibility for the electoral process. In this sense, they must show that the electoral process is fair and free. If there is enough evidence to show that it is necessary to hold a new election for any constiency, all should do it. If not, they have to accept the result. But they should not mix them up, I think. Second, it is the political responsibility for the voters. If they share the seats, they ignore the voters of about two millions for the democratic alliance. This will affect the democratization in Cambodia whereby it will discourage people from going to vote again because they lost their confidence and expectation. Therefore, two main responsibilities should be seriously considered by all parties: legal responsibility and political responsibility.

Quotation 1

អាគតដ្ឋាន ១

Justice and Money: A Case of Khmer Rough Trial

It is very interesting to ask a question of whether there is a justice without money. The case of the Extraordinary Chambers in the Courts of Cambodia (ECCC) can give some hints to understand this issue. This ECCC is a hybrid court created by the Royal Government of Cambodia and the United Nations to try senior leaders of the Khmer Rough who were the most responsible persons during the Pol Pot Regime, and to find justice for victims.

According to the Radio Free Asia (read this news), the ECCC is now looking for more money of about 100 million dollars, totaling 170 million dollars, and is planning to extend its existence up to the year of 2011.  There have been a concern that if this additional money cannot be obtained, the ECCC might be suspended or stopped by the end of this year. Another concern relates to the fact that most of the Khmer Rough leaders who have been arrested are getting older and older and that they might pass away before a formal trial is taken place. This raises a question of whether money is the key for finding justice. If the money can be obtained from various sources to complement the total amount up to 170 million dollars, the ECCC may continue and justice may be found although technical procedures may be problematic sometimes in the future.

However, if the ECCC could not get this additional money, and it had to be suspended or stopped; these would reflect that justice could not be provided without money. This will make stronger an argument, mainly believed by most Cambodian people, that “no money, no justice.” I am very concerned that these will fade out a hope of many victims and Khmers as a whole, a hope that they are hunger for more than 30 years. They will probably and completely lose their confidence and trust in the judicial system, in courts, and even in the same folks. And they might become people who can live without justice and liberty, and in turn they lose trust in each other, a trust that can help develop this poor country.

There are two possibilities that might happen in the future. First, the additional money might not reach to the amount they are asking. If so, the future of the ECCC is still uncertain and unpredictable. This will get very little trust from the public. Second, the ECCC can operate without money or operate with money that is not much as they are asking. In this case, the money they presently possess must be used in a constrained condition. Salaries of judges, prosecutors, lawyers, and other personnel should be reduced, new building construction should be stopped, unnecessary procedures should be eliminated, and other non-value added activities and facilities should be reduced.

Although the last option may provide justice that is not in compliance with international standards, it is at least workable (a “workable justice”). This option will requires very high commitment from judges, prosecutors, lawyers, and others who love justice and who want to give this justice to Khmer people and victims. I believe that they can do it if they really love justice, a true justice regardless of money and a genuine justice that many Khmer people want to see not only in or through this ECCC, but in general courts in Cambodia.

People in this country have already suffered too much from the present system of the courts of no independence and no impartiality. For this reason, I suggest that judges, prosecutors, lawyers, and others, who love and believe in fairness and justice and who want to show and give it to Cambodian people, sacrifice some amount of their salaries, time, power, and energy to make it happen for these miserable people who are extremely hunger for justice. I do not suggest that they give up all salaries and work for no money, but I appeal that they all work within this constrained budget to fight for this 30-year-waiting justice, and to fight for the independence and impartiality of a judicial system that this country and the people thereof have never known and experienced in her history.

No matter how much money the ECCC can get, it clearly shows that justice cannot be found without money. However, this piece of writing suggests that the ECCC can find justice for Khmer people and victims even within this constrained budget as long as judges, prosecutors, lawyers, and other relevant persons really love and want to give them a genuine justice. Even though it may be called a “workable justice” for it operates not in fully compliance with the international standards, this workable justice can be proved and given to these people mainly based on the professionalism, internationaly recognized, of these judges, prosecutors, lawyers, and others involved.

Life, Liberty and the Pursuit of Happiness

Here is a quotation from the Declaration of Independence, which is very important to understand what kind of rights belong to us and how the government exists and should play a role to protect these rights for each individual. It is the core principle of how the government and the governed are interrelated to each other and how we, as citizens in one nation, must understand the legitimate institution of the government.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Let look at the Cambodian case. These fundamental rights have been incorporated in Chapter III of the Constitution talking about rights and obligations of Khmer citizens. Here are some important quotations:

Article 31: “[...]Every Khmer citizen shall be equal before the law, enjoying the same rights, freedom and fulfilling the same obligations regardless of race, colour, sex, language, religious belief, political tendency, birth origin, social status, wealth or other status.”

Article 32: “Every Khmer citizen shall have the right to life, personal freedom and security.”

Article 35: “Any suggestions from the people shall be given full consideration by the organs of the State….”

Article 44: “Khmer citizens shall have freedom of expression, press, publication and assembly. No one shall exercise this right to infringe upon the rights of others, to affect the good traditions of the society, to violate public law and order and national security….”

From my observation, we are rarely demand a protection of our rights based on the principles set forth in this Constitution. We normally refer to the protection of Human Rights and claim that we are entitled to demand such protection from the state organs such as governmental institutions, courts, and others. Although the contents of the rights are almost the same, I believe that it is necessary, as a starting point, to point these principles in our Constitution and to understand as a whole that these principles must be observed by all because it is the supreme law of the state. No one can violate these principles, and as long as we do not refer and respect these constitutional principles, we agree to live in or agree to preserve such a lawless state.

គោលការណ៏សីលធម៌ក្នុងសង្គមខ្មែរ

នៅក្នុងសង្គមខ្មែរបច្ចុប្បន្ន ខ្ញុំសង្កេតឃើញមានអំពើជាច្រើន ដែលមនុស្សបានប្រព្រឹត្តិឡើង ដោយគ្មានគុណធម៌ និងសីលធម៌ ហើយសកម្មភាពទាំងនេះបានកើតឡើងម្តងហើយ ម្តងទៀត ដោយគ្មាននិន្នាការថយចុះជាដុំកំភួនបន្តិចណាសោះឡើយ។ សកម្មភាពទាំងនេះរួមមានដូចជា អំពើរំលោភសេពសន្ថវៈរវាងឪពុកបង្កើតមកលើកូនខ្លួនឯង ឬមកលើសាច់ញាតិខ្លួនឯង អំពើហឹង្សារវាង ប្តីប្រពន្ធ និងក្នុងគ្រួរសារ អំពើកាប់សំលាប់បងប្អូនឯង អំពើកាប់សំលាប់មនុស្សទាំងនៅពេល​ថ្ងៃត្រង់ចេះ អំពើពុករលួយ និងស្អុយរលួយនៅក្នុងស្ទើរតែគ្រប់ស្ថាប័ន និងបុគ្គល រួមទាំង ការប្រីប្រាស់ពាក្យអសុរោះដោយអ្នកដឹកនាំមួយចំនួន ក៏ដូចជាការជេរប្រមាថ មើលងាយជនជាតិ ខ្លួនឯង និងជនជាតិគេជាដើម។ល។ មានកត្តាជំរុញជាច្រើន​ដែលអាចបណ្តាលអោយអំពើ​ទាំងនេះកើតឡើង ដូចជា ភាពគ្មានច្បាប់ទំលាប់ ភាពមិនអាចអនុវត្តច្បាប់បានដោយជោគជ័យ ឬភាពមិនគោរពច្បាប់ទាល់តែសោះ​ ឬមានច្បាប់ដែរ តែមានចន្លោះប្រហោង។ ប៉ុន្តែនេះជាកត្តា ដែលសន្មត់ថា មាន​ ឬទាក់ទងនឹងការមានច្បាប់ វាមិនទាក់ទងទាល់តែសោះចំពោះចំនុចត្រង់ថា ហេតុអ្វីបានជាមនុស្សត្រូវគោរពច្បាប់ទាំងនោះ។ ត្រង់ចំនុចនេះ គេនិយមហៅវាថា “កាតព្វកិច្ចសីលធម៌ក្នុងការគោរពច្បាប់” ហើយជាបញ្ហាមួយដែលមិនទាន់បានដោះស្រាយអោយ ជ្រះស្រឡះនៅឡើយ និងអ្នកសិក្សាស្រាវជ្រាវកំពុងពិភាក្សាគ្នានៅឡើយ។ ខ្ញុំនឹងពិភាក្សាបញ្ហា នេះនៅក្នុងអត្ថបទផ្សេងទៀត តែក្នុងអត្ថបទនេះ ខ្ញុំចង់បង្ហាញថា អំពើទាំងប៉ុន្មានខាងលើអាច​បណ្តាលមកពីសង្គមខែ្មរយើងខ្វះខាតនូវគោលការណ៏សីលធម៌ដ៏រឹងមាំមួយ ឬក៏សង្គមខែ្មរយើង​មានដែរ តែគោលការណ៏សីលធម៌ដ៏រឹងមាំមួយនេះ មិនបានចាក់ឬសគល់ដល់បេះដូង និងចិត្តគំនិតរបស់អ្នកប្រព្រឹត្តិទាំងនោះ ដោយសារតែគ្មានប្រព័ន្ធមួយច្បាស់លាស់ ឬមានដែរ តែទន់ជ្រាយ ដើម្បីបណ្តុះបណ្តាល និងចាក់បញ្ចូលនូវតំលៃសីលធម៌ទាំងនេះទៅក្នុង សរសៃឈាម បេះដូង និងចិត្តគំនិតរបស់អ្នកទាំងនោះ។ នេះជាបញ្ហា ដែលយើងទាំងអស់គ្នាជាខែ្មរត្រូវយកចិត្តទុកដាក់ និងស្វែងរកមធ្យោបាយនានាដើម្បីដោះស្រាយ ទំលុះទំលាយបញ្ហាដ៏សំខាន់នេះ​ ហើយមុននឹងឈានដល់ដំណាក់នេះ យើងគប្បីយល់អោយ ច្បាស់ជាមុនសិនអំពីគោលការណ៏សីលធម៌ចាំបាច់មួយចំនួន។ នៅក្នុងអត្ថបទនេះ ខ្ញុំសូមដកស្រង់នូវគោលការណ៏សីលធម៌ចំនួនប្រាំ ពីសៀវភៅរបស់លោកសាស្រ្តាចារ្យ សរ សារុន ដែលមានចំនងជើងថា “អត្ថាធិប្បាយទស្សនវិជា្ជ” បោះផ្សាយនៅក្នុងឆ្មាំ ១៩៧៤ សំរាប់អោយ មិត្តអាន និងខ្មែរទាំងឡាយយកមកធ្វើជាការពិចារណាៈ

1.      សីលធម៌ផ្ទាល់ខ្លួន

①     ដឹងខុសត្រូវ

②     ស្គាល់ល្អស្គាល់អាក្រក់

③     តាំងខ្លួនជាម្ចាស់ចិត្តរបស់ខ្លួន

④     ក្លាហានក្នុងផ្លូវត្រូវ

2.      សីលធម៌ក្នុងគ្រួសារ

①    ឪពុកម្តាយចិញ្ចឹមកូនដោយពុំនឹកគិតដល់ការសងគុណតបមកវិញ ព្រោះជាមុខងាររបស់ឪពុកមា្តយ

②     ធ្វើអោយមានភាពសុខដុម

③     រៀបចំកូនអោយទៅជាពលរដ្ឋពេញលេញ

3.      សីលធម៌ក្នុងវិជ្ជាជីវៈ

①     មនសិការការងារ

②     រកស៊ីតាមសមត្ថភាព

③     រកស៊ីតាមសម្មាជីវោ

④     មិនរំលោភលើអ្នកតូចជាងខ្លួន

⑤    មិនធ្វើការហួសកំលាំងខ្លួនដែលនាំអោយមានជំងឺឥតប្រយោជន៏ 

4.      សីលធម៌ក្នុងសង្គម

①     មិនបែកបាក់គ្នា

②     មិនមើលងាយមនុស្សផងគ្នា

③     ស្រលាញ់យុត្តិធម៌

④     រាប់អានមនុស្សទូទៅ

⑤     ទទួលស្គាល់ទុក្ខវេទនារបស់អ្នកដ៏ទៃ

⑥     មិនឈ្លានពានអ្នកដ៏ទៃ

5.      សីលធម៌ក្នុងពិភពលោក

①    ការរួមរស់ដោយសន្តិភាពជាមួយប្រទេសដ៏ទៃ។

ខ្ញុំសង្ឃឹមថាខ្មែរម្នាក់ៗនឹងព្យាយាមសែ្វងយល់ពីតំលៃនៃគោលការណ៏សីលធម៌​ និមួយៗ ទាំងប៉ុន្មានខាងលើនេះ ដើម្បីធ្វើខ្លួនអោយទៅជាពលរដ្ឋ ដ៏ល្អ សំរាប់ប្រទេសជាតិ៕

Why Self-Understanding Important in Nationalism?

I start to ask this question after I revisited the concept of nationalism and I have tried to find out how this self-understanding can be built or can be promoted among Cambodian young generation so that they can feel the sense of nationalism. From my readings, self-understanding is very important to promote nationalism because by knowing ourselves clearly about who we are and where we come from, we are able to identify our own identity. Through this self-understanding, we can understand how we belongs to a group, how we belong together, and how we can interact together to develop a happiness and prosperity in the group.  In addition, we can understand and identify our own culture and society, then we are able to categorize ours as different from others. We can point out which ones are ours and which one belong to others.  When our self-understanding reaches to a degree, the sense of loving our group, our people, and our nation will emerge and strengthen nationalism among folks.

But how we can promote our self-understanding is another problem. I think there are many ways to do it, but I am interested in reading books talking about history. This is a very starting point to create self-understanding when being a student who is fresh and wants to know ourselves. By reading these books, we continuously learn what happened in the past, what is happening in the present time (by observation), and what will happen in light of this historical development.  Through this topic, I would like share three important books that help me to understand myself and to know the pain and the happiness this country has been through.

The first book is titled “Histoire de Cambodge” written by ADHEMARD LECLÈRE. From his book, I have learnt how the Kingdom of Cambodia emerged from the first time, especially from the time when most areas were covered by ocean of water. I have also learnt where Annam and Siem were located in that time. The second book is “When the war was over: Cambodia and the Khmer Rough Revolution” written by Elizabeth Becker. This book is very interesting for me, especially on how the Khmer Rough was formed and how they failed. One of the most important points I have learnt from this book, and I also share my personal view is that they failed because they did not trust each other. Finally they decided to kill each other because they had no trust. The residual legacy of this regime has left the sense of no trust-to-each-other to many people who have been through and this still remains in them. The third book was written by Nayan Chanda, “Brother Enemy.” This last book tough me how Vietnam and China intervened in the internal affairs of Cambodia, especially how these two countries involved and lead to the establishment of Pol Pot regime, especially a period before the collapse of the Khmer Republic. Brother Enemy told me why brothers of communism(Cambodia and Vietnam) bit each other on January 7, 1979. (These books are also available in English)

This is not an attempt of writing reviews on these books, but I am trying to point out important parts where I have learnt from and where I have never known from my previous generation. Cambodia is waiting for her young generation to know and understand her history of pain and suffering and Cambodia is crying for self-understanding from her people; otherwise, they will walk on the same track of no trust and no sense of loving each other. ..