William and Mary Law School

E-Learning Project

Side note: I have pictures for all of these entries and plan on uploading them as soon as I get back to the states where I’ll have faster internet!

This past week has been very busy with client interviews, writing success stories, meetings with clerks and judges at the court, trials, a workshop on land law, studying Khmer, consultations with clients at the prison, and a Stung Treng visit.  Another IBJ intern—she works in Pursat Province—and I also finished the E-Learning training manual for Cambodian defense attorneys!

The training manual, which will be available online at http://elearning.ibj.org/ and used in training sessions throughout Cambodia, is titled, “Rights and obligations of defense attorneys and the right to defense in Cambodia.”  The goals of the module are to train attorneys to be aware of their rights and obligations, identify clients’ rights, identify situations that trigger rights, and identify when those rights are violated.

Because Cambodia is a UN member state it technically falls under the umbrella of all international law, so the training for each of these objectives includes information on both international and domestic laws.  For international laws we utilized the International Covenant on Civil and Political Rights (ICCPR), the United Nations Basic Principles on the Role of Lawyers (UNBPRL), and the United Nations Declaration on Human Rights (UNDHR).  We used the Cambodian Constitution, Criminal Code, and Criminal Procedure Code to cover domestic law.  You can imagine that there are a lot of provisions concerning attorneys and the right to defense under this long list.  One of the most difficult aspects of creating the module was distilling down the law to its most vital components.

Another challenge was creating hypotheticals and quiz questions concerning international law since most UN provisions are understandably vague.  Most of the rights and obligations of attorneys in Cambodia come from the UNBPRL.  One example of this legal imprecision can be demonstrated by our attempt at creating a hypothetical involving two provisions in the UNBPRL: “The duty of lawyers toward their clients shall include…13(b). Assisting clients in every appropriate way, and taking legal action to protect their interests…15. Lawyers shall always loyally respect the interests of their clients.”  Our draft hypothetical on these provisions read: “Ms. Sophoe is Nan’s attorney.  Nan tells Ms. Sophoe that he wants to plead guilty. Ms. Sophoe fully informs Nan of his rights and tells him that it will be better for him to plead not guilty. Ms. Sophoe tells Nan that she is quite positive that he will win if he pleads not guilty. Nan insists that he wants to plead guilty. At the hearing, Ms. Sophoe tells the judge that Nan is pleading not guilty. Did Ms. Sophoe fulfill her obligation as an attorney?”  When we started to discuss possible answers to the question, we started to ask each other, what does protecting a client’s “interests” mean?  What does it entail to “loyally respect” those interests?  No Cambodian laws or professional standards exist to further clarify the UNBPRL provisions at issue.  The answer to the hypothetical is most likely “probably not,” but because the purpose of the quiz was to clarify the important points of our module, not to cause further confusion or discussion, we ultimately decided to scrap this one.

In addition to researching the law and creating a quiz, we gave the presentation a slant in order to impassion attorneys to defend indigent criminals.  We did this in part by emphasizing the right to defense and the numerous sources of the right.  Article 38 of the Cambodian Constitution states that every citizen shall enjoy the right to defense.  The UNBPRL and ICCPR further clarify this right, even affirming that the right to defense shall be enjoyed, “without payment by him in any such case if he does not have sufficient means to pay for it.” (ICCPR Article 14).  The Cambodian Criminal Procedure Code (although largely ignored) outlines duties for attorneys, the police, and the court to ensure that the right to defense is upheld in each stage of criminal procedure.

We condensed the rationale behind the right to defense to three main concepts: the right to be treated equally under the law, the right to be presumed innocent, and the right to a fair trial.  All three of these fundamental rights are repeatedly enumerated throughout international and domestic law, and without the right to defense, none of these perimeter rights can be upheld.  Further, as one of our sources stated, “These rights apply to those accused of all criminal offences, no matter how shocking or abhorrent the alleged offense and no matter how strong the evidence available to the prosecution appears to be.”

To encourage attorneys to defend the indigent we also emphasized the vast need for criminal defense attorneys in Cambodia.  During the Khmer Rouge regime the legal system was completely destroyed and nearly all attorneys fled the country or were executed.  The country continues to suffer from a severe shortage of attorneys and other trained legal professionals.  In 2009 Cambodia’s population was 14 million and there were 712 attorneys, which equates to one attorney for every 19,662 people.  This statistic might be a bit optimistic, however, since it includes a number of attorneys providing legal services at an exorbitant cost which most Khmer citizens cannot afford.  As I’ve mentioned in a previous entry, in Ratanikiri and Stung Treng provinces my boss is the only attorney providing free legal services to indigent defendants over a population of 180,000.  Meanwhile the number of imprisoned criminals continues to increase.  Cambodia’s prison population is 15,000 but capacity is only 8,360, and the rate of imprisoning criminals increased by almost 13 percent over the past year.  LICADHO recently prepared a thorough report on prison overcrowding in Cambodia: http://www.licadho-cambodia.org/reports.php?perm=154. Keep in mind that alongside the overcrowded prisons the courts become impossibly backlogged; now 36 percent of prisoners are pre-trial.  To top it all off, the cases that take the longest to go to trial are the ones involving indigent defendants since they are not able to pay off the court for an earlier trial date.

In the past it was possible for legal aid officials or paralegals to defend criminals, but since the establishment of the Bar Association of the Kingdom of Cambodia (BAKC), only members of BAKC are allowed to defend.  At the beginning of my internship I researched the process of becoming an attorney in Cambodia in order to determine the need for a training sessions throughout the country.  I learned that very few attorneys are actually accepted into BAKC every year.  In addition the only law school in Cambodia is excessively prestigious. Out of the small number of attorneys accepted into the program even fewer are accepted into BAKC.  The difficult process of becoming a lawyer only exacerbates the shortage of attorneys.

I thoroughly enjoyed making the E-learning module, and I hope it will help inform Cambodia’s future defense attorneys while impassioning them to provide representation to the increasing number of individuals greatly in need of quality advocates.