On July 30, 2008 the Supreme Court of Cambodia upheld a lower courts ruling that found Prince Norodom Ranariddh guilty of breach of trust and sentenced him to 18 months in prison.
Ranariddh was the president of a political party named FUNCINPEC. FUNCINPEC was a partner of the Cambodian Peoples Party since 1993. In 2006 Mr. Nhiek Bun Chhay, the Secretary General of FUNCIPEC ousted Ranariddh from the party and later filed a criminal lawsuit against him for breach of trust. The allegation was that Ranariddh had sold party’s land in Phnom Penh and had used the sale proceeds, claimed to be US$3.6 millions, to buy land for the new, self-named party, Norodom Ranariddh Party, Ranariddh had formed.
To many observers, his ousting, the lawsuit against him and his subsequent trial by the court of first instance of Phnom Penh, the Court of Appeals ruling upholding it and finally the Supreme Courts ruling have a political undertone. Some time before his ouster from the FUNCINPEC, Ranariddh had already become an arch rival to Prime Minister Mr. Hun Sen, commonly known as the strongman of Cambodia and the Vice-President of the Cambodian Peoples Party.
There is also a strong and tenable opinion that a mere civil dispute of handling the partys assets was turned into a criminal case to eliminate Ranariddh from the Cambodian politics altogether. Before the first trial Ranariddh was living in self-exile in Malaysia.
In addition of being viewed as politically motivated, the Supreme Courts July 30th ruling has been criticised for ignoring the letter which Mr. Keo Put Reaksmey, the current president of FUNCINPEC party, has written to the court to notify it that his party had withdrawn its complaint against Ranariddh. In effect, Keo wished to compound the breach of trust his colleague Nhek had accused Ranariddh of having committed.
Every crime is not of the same nature. To determine the gravity of a crime and the punishment a crime warrants several yardsticks are used. In a similar fashion, crimes are generally divided into two categories of which minor crimes that warrant lesser punishment are allowed to be compounded between the complainant and the accused in most jurisdictions. Cambodian law also provides this to a certain degree.
However there is the lack of a clear distinction between compoundable and non-compoundable offences under the Cambodian law, although the Cambodian criminal code enacted in 2007 has laid a principle for it. Under Article 8, the code has provided for an end to a criminal action by the complainants withdrawal of his or her civil complaint where this end is expressly provided for in a separate law and where such a complaint is a condition necessary for prosecution: Where it is expressly provided for in separate laws, criminal action may also be ceased by
[t]he withdrawal of the civil complaint in the case where the civil complaint is a condition necessary for prosecution.
In the course of the development of Cambodian criminal law, there are only two laws which specifically provide for an end to criminal action thereby categorising the offences as compoundable offences. One is the Law on the Prevention of Domestic Violence (2005) which says, under its article 36, that a criminal action can be discontinued if the adult victim [of violence] has so requested where the offence is a minor misdemeanor or a petty crime. The other is the Law on Monogamy (2006) which criminalizes adultery. Under its article 8, this law says that the prosecutor may discontinue any prosecution at the request of the spouse of the suspect [of adultery].
Both of these laws do not nevertheless specify whether complainants can withdraw their complaints to end a criminal action at any time during the trail, and, so far, there has been no case decided in Cambodia that has provided a clarification on this issue.
In an evolving legal system like the one in Cambodia, a deliberate court action as it has happened in this case will only result in generating confusion. It will also result in rendering the justice framework open for misuse. To make matters worse, the political undercurrent attached to this case cannot be denied.
Ranariddh case has attracted a lot of public interest. There are, however, many other breach of trust cases in Cambodian courts. An NGO noted that, in the first half of 2008, in the six courts of first instance and in the Court of Appeal it is monitoring, there were altogether 57 breach of trust cases involving 66 defendants. In one case heard by the court of Phnom Penh on February 27, the prosecutor dismissed the complainants withdrawal of his complaint as having any effect on the criminal action. The defendant was acquitted in this case nevertheless, most apparently for other reasons.
There are other criminal cases, no less prominent than the Ranariddh case, where complainants filed criminal lawsuits and later withdrew their complaints. In 2005 and 2006, Prime Minister Mr. Hun Sen filed criminal lawsuits against some of his critics on charges of defamation. Later on he withdrew his complaints and the defendants were released before they had been tried.
More recently, in July 2008, Foreign Minister Mr. Hor Nam Hong filed a criminal lawsuit against a newspaper editor for defamation, insult and disinformation. That editor was bailed out and later on Mr. Hor Nam Hong withdrew his complaint after reaching an agreement with the accused. However, the criminal charges against the accused in all these cases have not been ceased and these cases and the cases against them are still pending.
According to some observers, filing of criminal charges, especially on grounds of defamation is misused in Cambodia to subdue critics. Similar tactics used by the ruling and powerful politicians in Singapore, Thailand and Malaysia had attracted wide international condemnation from jurists in the recent years. Such misuse of due process of law tends to curb fundamental freedom of opinion, expression and thought, rights that are guaranteed under the Cambodian constitution.
In contrast, there are graver offences, especially rape, for which out of court settlements are known to have been made between perpetrators and victims and criminal actions not taken although no law allows such practices in Cambodia.
As to the offence of breach of trust, Ranariddh has been charged with and convicted of, there is no law specifying that it is a compoundable offence, an offence for which a civil complaint is a condition necessary for prosecution, or the complainant can withdraw his complaint at any time during the criminal process and cease the criminal action.
By discarding the withdrawal of the complaint by the president of the party and by upholding the ruling of a lower court in Ranariddh’s case, the Supreme Court has apparently ruled out the possibility of compounding cases of breach of trust.
However, it will help to reduce criticism, enhance the authority of courts of law, ensure more certainty of law, and gain public confidence for the entire judiciary, if the Cambodian law can clearly categorise offences, not only that concerning breach of trust, into compoundable and non-compoundable ones. The law should also specify in what category of cases a civil complaint is a condition necessary for prosecution, the time within which the withdrawal of complaints has to be filed. The law must also clarify that once a complaint is withdrawn it puts a definite end to the criminal action. The penal code which is being drafted should provide all these clarifications.
