To Witness a Miscarriage of Justice

2015 Noga BrodieBy Brodie Noga

I used to think that the phrase miscarriage of justice was oddly visceral. Having felt my heart slow, my chest become heavy, and my stomach wrench as the “Phnom Penh 11” were handed down 20 and seven year sentences in a deeply flawed legal proceeding after a mere 15 minutes of deliberation, it now feels sterile.

The trial of the 11 opposition party officials and activists I was observing had deteriorated quickly after an opposition led boycott of a vote on the NGO law and a major political rally held at a contested area of the Vietnam-Cambodia border. Plaintiffs conveniently failed to show when summoned and instead had suspiciously similar written statements read into the record; after months of delay the trial was suddenly sped up to a daily schedule despite defence lawyer protestations that they would be unable to attend; the day of the verdict only one of the nine defence counsel was present; closing arguments were announced with three minutes notice; and as as the judges left to deliberate, scores of police were mobilized to shut down the streets surrounding the Court and to fill the courtroom.

When it became clear that the outcome was pre-determined, the 11 men charged with leading and participating in an insurrection – despite a total absence of any accusation that they’d committed acts violence or that the events of July 15 2014 had in any way amounted to an insurrectionary movement – began to joke. One man, whose son had died that morning, teased the court police that he needed to pee before the verdict was rendered and promised he wouldn’t run away. Others asked the guards if they could have their cellphones back so they could give them to their family before they were jailed. While my translator conveyed these words to me he would interject and tell me how these words hurt his heart. They hurt mine, too.

And then the verdict came, read so quickly most couldn’t even catch who received which sentence, and the police handcuffed the 11 to lead them to prison. As we left, my translator told me that he was glad to see the verdict so that now he will be prepared for when they come for him. And then my heart hurt for him as well.

As students of law we often talk about justice and injustice, but it is nearly always in the abstract. The trial is far from the first terrible thing that I have witnessed, but the emotional charge that hung in the air as the verdict was read continues to haunt me. But it wasn’t the catalog of fair trial violations in my notebook that was disturbing, it was the performance of state power before me, it was the men aware of their looming sentence, it was the nervous energy of the audience, it was the rapidity of the judge’s speech as the sentence was read. Law in the abstract never really exists without law in the concrete. A miscarriage of justice isn’t just a failure of the court to abide by abstract codes of behaviour, it is the immensely visceral interaction between humans whose final reality exists in their flesh. For me and for those in the audience, the physicality of the injustice was vicarious. For those 11 who felt the handcuffs around their wrists, it was far more immediate.

Resisting the Civil Society Kill Switch

2015 Noga BrodieBy Brodie Noga

The past month has been a blur of activity and emotion as LICADHO has, alongside numerous others, led a campaign against an NGO and Association law that, if enacted, will effectively give the government a kill-switch for critical civil society. The Law on Associations and NGOs, or more commonly, LANGO, requires mandatory registration of all NGOs and any group of citizens who “work together for a common purpose” and gives the Minister of Interior the power to ban any group that threatens the peace, security, traditions or “good culture” of Cambodia. In a country where vague laws are the basis for arresting and jailing activists, there is no doubt that LANGO will be a powerful tool to silence dissenting voices.

Protestors holding anti-LANGO signs are stand on a blockade across from police.

LANGO protestors blocked by police from marching to the National Assembly. Photo: LICADHO

While human rights NGOs like LICADHO certainly have much to fear from the enactment of such a law, it is community and grassroots activists that have the most to fear. In the past years an influx of foreign investment has caused the value of urban and rural land to skyrocket, prompting numerous corrupt land-dealings that force poor communities from their homes. Many of those evicted communities have organized prominent campaigns against the government, bringing, from its perspective, unwanted attention to their plight. In the past the government has not hesitated to use police and private security guards to brutalize protestors or abuse the judicial system to imprison them. Now, with senior politicians spouting conspiratorial theories that the CIA and MI6 are funding such subversive groups, LANGO will make all such community movements de jure criminal organizations.

The campaign against LANGO has been a process of organized chaos, made all the more difficult by the fact that a draft of the law was only obtained via a government leak a month ago. However the Say No campaign has also been inspiring, with youth creating songs and music videos denouncing the law, organizations releasing thousands of balloons across the city, and groups coming together to protest despite government warnings not do so. And as a result of tireless efforts of numerous campaigners the chorus of critical voices has steadily increased, both domestically and abroad. Yet despite the resistance, the law passed through the National Assembly on Monday with the opposition party boycotting the vote. Now all the law needs is approval by the government controlled senate and signature by the king.

And so it is easy to be disheartened. The future of not only LICADHO, but Cambodia as a whole has become immensely uncertain, particularly as government plans to pass other repressive laws, leaving little room for hope – other than in the knowledge that there are many across Cambodia willing to continue speak out (though it is the risks of doing so that continue to worry me). It has left me with many questions to consider; questions about the failure of development organizations to speak out on behalf of Cambodia, of the reticence of foreign governments to get involved, of what it means to express solidarity where the risks are disproportionately felt by your local allies. But for now I am too tired to answer them and can only hope that the next weeks bring a welcomed change of course.

Monitoring a Trial for Insurrection

2015 Noga BrodieBy Brodie Noga

The morning heat is starting as the defendants filter into the courtroom. Most are smiling and laughing, some are taking selfies, one jokes that the court is starting to feel like his second home, one is in tears. In total there are 11 men sitting on the bench reserved for the accused, each charged with either participating in or leading an insurrection, facing 10-20 year minimum sentences for the respective counts.

The charges stem from the events of July 15th, 2014, where several hundred protested the closure of Freedom Park, a popular site of political demonstrations. While the police stood by, private security guards took out bamboo batons and began beating protestors. Some members of the crowd retaliated, striking back with PVC flagpoles and batons they had taken from the attacking guards. When the violence settled, both protestors and guards had been injured, some severely. In the days that followed, MPs from the opposition party CNRP who had attended were arrested, along with party officials and supporters.

The proceedings I witness pour cold water on any law school idealism that legal argumentation will carry the day. Contrary to the logical fact patterns we disassemble in final exams, where the law is an abstract and tangible thing, the trial is simply politics by other means. The criminal code provisions are vague and harsh, recent reforms of the judiciary leave judges squarely under the control of the executive, and the rules of evidence are co-extensive with the discretion of the judge. Indeed, there is little attempt to hide the appearance of collusion between prosecutor and the bench, as they periodically take “washroom breaks” and follow one another into their chambers.

The trial is nothing new or unexpected in Cambodia. Criminal charges have been used regularly in the past to give the ruling party bargaining leverage over the opposition.

This is of course troubling on a number of levels. But for a law student emerging from the depths of the academic study of law it represents the danger of learning law solely in the abstract. The law is found not just in its written form, rather it is a practiced enactment of state power.

This may seem like common sense, but it is easy enough to lose sight of when the immediate success in law school depends on your in-depth knowledge of the written law. If anything, this past week has made me reflect on how to be an effective advocate requires not just legal knowledge, but adeptness at negotiating the social and political context in which one is advocating.

Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.