Judge Motoo Noguchi's Imminent Departure and Lasting Legacy

Supreme Court Chamber Judge Motoo Noguchi has recently resigned and is presently awaiting his departure. Judge Noguchi has been with the Chamber since its inception but his legacy best known to the public will be his voting with the Cambodian end of SCC bench to quash the remedy for unlawful detention prior to the establishment of the ECCC granted to Duch by the Trial Chamber. Judge Noguchi voted against his international colleagues on this and has set back the status of procedural rights in this country by 20 years. In recognition of this, I am re-running my initial comments on this part of the Appeal Judgment posted on this forum earlier. Judge Noguchi wrote in his farewell statement that he trusts that "[the Cambodian people] will strive to overcome the tragic past". I would like to join in with that and wish the Cambodian people to overcome the tragic recent past of the manner in which Judge Noguchi chose to cast his vote.  

Delivering its judgment on the appeal in Case 001 the Supreme Court Chamber (SCC) struck down the Trial Chamber (TC)-ordered remedy for the violation of the fundamental rights of the accused through illegal imprisonment prior to the establishment of the ECCC.

In finding in this manner the SCC disregarded every possible shred of applicable fact and law. The SCC’s decision to quash the remedy does not have as much as the narrowest reed to stand upon: it is undisputed that the accused had been detained between 1999 and 2007 on the orders of the Military Court and in violation of the Cambodian law and for the sole reason of expectation of the establishment of the ECCC (otherwise, there was absolutely no reason for his 8-year long detention and no obstacles for his timely prosecution); there is documentary evidence that the accused was transferred (not released and then re-arrested) to the ECCC from the Military Court which amounts to uninterrupted custody (just because a suspect or accused is moved from the jurisdiction of one national court to that of another does not interrupt what is known as ‘government custody’); there is no question that the Cambodian Criminal Procedure Code (CPC) clearly and unequivocally provides for remedies for the violation of what the CPC terms as ‘mandatory rules’; the observance of statutorily prescribed limits of detention is but one of these mandatory rules; there is abundant case law which makes it clear that the added procedural rights (which stem from the ICCPR) require that there is a remedy for the violation of the procedural rights applicable to a person’s deprivation of liberty in pre-trial detention (anyone familiar with the particulars of the presumption of innocence as set out in the ICCPR and the Cambodian law would be able to see that it is clearer than daylight).

SCC, singlehandedly, managed to overturn the last 2 decades of very difficult human rights work of many dedicated foreign and local individuals who grind this work bit by bit through the unreceptive and often flat-out undignified attitude of the Cambodian government (Hun Sen’s insults thrown at the OHCHR Representative immediately come to mind but the high-profile nature of these insults blots out the indignity suffered by the scores of officers of the NGOs like ADHOC, LICADHO and many others who stand by those whom the government wants jailed with the key thrown away). Jailing people and throwing away the key is what the Cambodian government has done for decades before, during and after Democratic Kampuchea with a handful of individuals opposing this and the rest of the Cambodian society merely standing on the sidelines and gazing thinking ‘thank God it wasn’t me’. SCC pulled the rug from underneath these individuals’ feet today and left them absolutely nothing to stand on. By defying the legal and factual realities the SCC told the Cambodian government that it was correct about keeping Duch in detention with no reasonable prospect of finality other than the establishment of the ECCC and the beginning of the proceedings. SCC also told everyone in Cambodia from its high pulpit that so long as the Cambodian government needs to detain a person it has full discretion to do so which is not hindered by any law. It also told the Cambodians and the observing outsiders that the government owes them nothing for illegal detention that no matter how many international jurists will be on the Court the Cambodian government will go scot-free and will be validated in its approach after much bluster which will amount to one thing: the Cambodian government cannot be wrong, even if both the law and the fact are against them. The bluster and the incendiary oratory we have seen and continue seeing in the other two Chambers do not amount to much more than mere entertainment for those of us who are wired in a way which seeks stimulation in this type of processes; the SCC is the least televised Chamber but, by the end of the day, it is the only one that matters as it can overrule the other two. And it did so today.

Some of the incidents we have seen throughout this process are entertaining and funny. DC-Cam Deputy Director’s LLM from Notre Dame and knowledge of the law from underneath a palm tree is funny. What the SCC did today isn’t funny. It is a black day for human rights in Cambodia. SCC has managed to do what only science fiction writers had been able to do before: they created a time machine. With that time machine they took us back to the time before 1992 when officers of the UNTAC Human Rights Department yanked persons out of prisons who were locked up there without a process, without a possibility or timeline for release. The UN officers of the UNTAC showed that it could be done. This time the UN paid to create a court that would take these achievements away. It’s a shame. The Cambodian government has every reason to open champagne tonight and the human rights advocates have every reason to pack their bags. That’s provided they have a place to run.

Why does this feel like August, 1979 happening again and yet somehow different? Ah, yes, because the foreigners who came to validate the PRT actually believed in the government they came to validate. Oh, yes, and none of them came from Japan (Japan was not shouldering half the cost of the proceedings at the time; perhaps, packing the SCC with a mix of Japanese and Singaporean judges would have been ideal: they would have been seen as foreigners and yet would have acted as locals in pursuance of the concept of 'Asian values' rather than that other concept ... what do we call it again? ah, yes, human rights).

As Leonard Cohen said in one of his songs, "everybody knows that the war is over; everybody knows that the good guys lost". Whoever the good guys were in this case.