Lawyering in ‘Limited’
Democracies
Preliminary Reflections from Cambodia
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
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
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’?
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.:
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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
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
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.’
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
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:
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Impunity
Poor respect for freedom of expression
Weak judicial independence
Limited judicial capacity
Little public confidence in legal system
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
(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
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
(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
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
(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
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
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)
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