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Lawyering in ‘Limited’ Democracies Preliminary Reflections from Cambodia.

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Presentation on theme: "Lawyering in ‘Limited’ Democracies Preliminary Reflections from Cambodia."— Presentation transcript:

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 Norodom Sihamoni - 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 (eg Bonelly 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


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