(Ed. note: This is the statement made by participants of a consultation on police reforms in Cambodia held by the Asian Human Rights Commission in Hong Kong on 6-8 January 1999. Seventeen human rights activists, legal and police experts from Cambodia, Hong Kong, Denmark and the United States taking part in the consultation jointly proposed ways to improve the quality of the Cambodian police and their investigation procedures.)

The conceptual framework of the Cambodian justice system is the Constitution of the Kingdom of Cambodia, adopted in September 1993. This Constitution lays down that Cambodia is a liberal democracy. Thus the concept of the police under the Constitution is one of a police force functioning under liberal democratic norms and standards.

The concept of the police as criminal investigators and peacekeepers is new to Cambodia after the Pol Pot regime. The political regimes which came after the Khmer Rouge regime were also socialist, and the concept of the police was that of a militia. The function of this militia was to protect the socialist regime and to perform surveillance on the people. Between 1980 and 1992 surveillance of the people was carried out through the Ministry of Interior. Following the 1993 elections that concept of the Ministry of Interior was forced to change. Now this ministry has to work under the framework of the Constitution of the Kingdom of Cambodia.

The concept of the police as criminal investigators and peacekeepers is different from the concept of police which prevailed up until the new Constitution. This conceptual difference is of paramount importance. Any discussion of police reform or police education should begin with an appreciation of the fundamental difference between the two systems. Many of the problems now besetting the police force could be better resolved if this difference were understood.

Under a liberal democratic framework the courts are at the apex of the system of justice administration. The police are a subordinate branch of this justice administration system. The superior position of the courts must be accepted as the basis of all relationships between the courts and the police. It can be said that under the former system (1980-1992) the police were much more important than the courts. Under that system the courts had merely a public relations function and the police had more direct authority over the people.

Laws to Define Criminal Investigation Procedures

Criminal investigations are directed towards criminal trials. Under a liberal democracy trials must be conducted according to the norms and standards relating to fair trials. These norms and standards are laid down in the United Nations covenants and declarations and are today accepted universally.

Police procedures for criminal investigations must be laid down by law. In a seminar held on 11-17 January 1994, organised by the U.N. Centre for Human Rights in Cambodia, with participants coming from the Ministries of Justice and Interior and some members of the higher judiciary, it was agreed that there was a great need for speedy adoption of laws. The participants stated that the number of existing laws was very limited and grossly inadequate. They particularly insisted that a penal code, a criminal procedure code and a law on evidence should be adopted as soon as possible.

As of the beginning of 1999, the Penal Code and Criminal Procedure Law exist in draft form. The drafting of these documents has taken a long time. These documents need to be made available to the people, and particularly to organisations concerned in the development of a justice administration system in Cambodia, for comments and suggestions. With the help of experts associated with such organisations these two documents could be finalised quickly. If these laws were adopted as quickly as possible, they would act as a cornerstone for all the institutions of justice administration. These laws laid down under these codes would also provide the basis for police reforms.

There still does not exist a police code in Cambodia, although a draft of such a law has been drawn with the help of foreign experts. This draft must be made available to the public and specifically to groups and organisations involved in human rights work. The specific problems existing in Cambodia must be addressed in this document. This could be done when the document is made available for comment. As such a law is very important for establishing a proper police force in Cambodia, work on this law must be expedited.

The Police Law must create a police commission for the purpose of supervising and managing police reforms and police education. There are many such commissions in other Asian countries. Such a commission could become a very useful instrument for achieving positive change within the police force.

De-linking of Politics from Police Work

Titles used for various ranks of police are still military terms. Beginning with "three-star general," titles go down to "assistant lieutenant," which is the equivalent of constable in other countries. Titles are usually given after appointments and not acquired by way of promotion. These titles show the military origin of the police force when the police were used to fight in the civil war. In transforming the police into a modern police force it has become imperative to give up this military past. As part of that transformation the military-style titling must be abandoned.

Before 1993 the police force was also organised along political lines. Both major political parties had their own police forces. De-linking of the police command system from the political leadership and running it purely on a professional basis should be the key orientation of police education programmes. Overcoming of the existing culture of subordination to and collaboration with political authorities is important in creating credibility not only for the police system but also for the political system. All this has direct bearing on economic and political development as well as internal and international trade. It is also an essential step towards creating civil society in Cambodia. Such de-linking of politics from police work is also essential in separating the police from criminal and triad elements. It would go a long way towards overcoming the often-reported and much-feared kidnappings. The police must also be non-partisan. If individual members of the police and military want to join political parties they should resign permanently from these forces. Members of the police should not be recruited from the political parties but through such a proper and independent process as a police academy. Existing payments to "ghost police" (who appear only in the registers) as form of rewarding political allies should be abolished. Currently, members of the police are also members of political parties, who take part in politics openly. The law forbids such active participation but instead allows persons to resign in order to contest elections and to return to the force if they fail. This is not a good situation. Constitutional provisions relating to this issue need to be amended.

Police Academy for Professional Training

In any country police behavior is very much conditioned by the commands police receive from their professional superiors. It is therefore essential that the higher ranking members of the police be professionally trained individuals. Police education must begin with the education of higher ranking officers. At the moment, higher ranking police officers do not have professional training and are recruited directly from outside of the police. Although there are some police officers who have been qualified abroad, they are not in the higher ranks. No real police reform can take place without looking into the issue of qualifications for higher ranking police.

Foreign academies and other training institutes can contribute a great deal by offering educational opportunities to these high ranking police personnel in Cambodia. Donors and funding agencies should treat such training as a priority in granting assistance. However, the selection for such training must be based on merit.

Before 1993 the police training was basically a political indoctrination programme. Although this programme has been stopped, it has not been replaced with a proper training programme. Police trainers do not exist in the police force of Cambodia; nor is the concept of such a category present. The concept of organised education of the police force is missing.

A police academy for the professional training of police is a dire need for Cambodia. Some governments have offered funds for this purpose and there had been some discussions of the matter. Some governments have also helped by setting up small-scale education programme. These programmes, however, have only scratched the surface of the problem and have in no way made a significant breakthrough in resolving it. A well organised police academy is now imperative.

Various agencies and organisations conduct human rights programmes for the police. Although such programmes help create human rights awareness among the police, they should not be seen as a substitute for proper professional police training.

Adequate Funding to Stem Corruption

In Cambodia there is a policeman for every 150 people. Normally in developed countries the ratio is about 1/750. Before 1975, the number of persons in the police force was about 15,000. Now there are over 60,000. This expansion was not due to police but to military needs. An ordinary policeman is paid, in the average, only about US each month. This means that the police are likely to place a tremendous burden on the people through corruption and other means. This situation is a primary source of police corruption. It is necessary drastically to reduce the numbers in the police force and to improve their quality. In improving the quality the question of adequate wage becomes very important.

On the one hand, police reform depends in large part on adequate funding for the police. On the other, foreign assistance for the police force depends in large part on genuine reform. An unwieldy and not properly disciplined police force is unlikely to attract better funding. Dealing with this issue will take great political will on the part of Cambodian political leaders.

Lack of funds sometimes leads to the non-payment of police salaries for months. The result can only be that police will resort to corruption to make a living. In that process members of the police may seek links with criminal and triad elements. In turn, public opinion of the police becomes very low. It is not possible to restore public confidence in the police without serious reforms accompanied by adequate wages. The public impression that "the police and the thieves are the same" need to be corrected through real changes. Police should also not participate in such economic activities as tax collecting. Such abstention is necessary for the peaceful development of economic and commercial activities as well as for maintaining discipline in the police.

Police officers work in one locality all their lives. This leads to corruption. Officers must be transferred at regular intervals.

In the future, peace in Cambodia is likely to depend on the way the society deals with the problem of livelihood for former military and police personnel. Added to this problem is the pervasive and easy availability of arms, partly a legacy of the many years of civil war. This problem has to be dealt with if Cambodia wants to escape from the situation of anarchy prevailing at the moment. Police reforms are very much connected to the way these problems are addressed.

Police reform is an essential element in dealing with the culture of impunity prevailing in Cambodia. Recent attempts to allow former Khmer Rouge leaders to escape trial for genocide reflect how serious the issue of impunity in the country is. If the rule of law is to be brought about in Cambodia very genuine and far-reaching reforms are necessary.

Concept of Proof in Trials

The concept of forensic evidence is unfamiliar in Cambodia. Hardly any real expertise in any of the fields of forensic science exists in the country. Post-mortem examinations and autopsies are not legal requirements. No forensic laboratory exists. As a result, some very short-term training given by foreign experts can be used in very dangerous ways.

The lack of forensic facilities is very much linked to the absence of the concept of proof in criminal trials. A former minister of justice told the press that when a trial began the decision of guilt was already made. The Khmer word used for "trial" means "a sentencing session." Guilt in this context has usually been decided by confessions from the accused, however such "confessions" may have been forcibly obtained. Given conditions in Cambodia, it would be better to follow the example of some countries where confessions are not admissible at all. Conditions do not exist to take the more liberal approach of admitting confessions subject to certain limitations.

Suggested Provisions to Limit Police Power

The following provisions must be incorporated into the Criminal Procedure Law in order to limit the powers of the police regarding arrest, search and related matters:

• Police usually do not identify themselves before or during arrests. A code of conduct and minimum standard of conduct for police should be introduced. Police must be required to identify themselves and reveal the reasons for the arrest to the suspect.

• There should be rules for the proper use of handcuffs.

• The use of force should be defined and regulations be laid out by law, as should rules regarding the right to self-defence and to the defence of third parties and of property.

• The beating of arrested or detained persons should be prohibited. The police commander should educate subordinates and punish any police officer who beats arrested or detained persons. Penalties for this act should be stated clearly in the law. The prosecutor should be mandated immediately to investigate any accusations of or information concerning torture.

• The chief of police should likewise educate police not to beat arrested or detained persons and should punish any police officer who violates this prohibition. After receiving information or having evidence of injury to arrested or detained persons the prosecutor shall be responsible immediately to investigate.

• The proper use of weapons must be mandated.

• The law should state clearly how much evidence is required before an arrest can be made, either in the commission of crime or for probable cause. After a dossier has been submitted to the prosecutor, the prosecutor should decide whether the police have probable cause for an arrest. If evidence is found to be lacking the prosecutor should order police to release the suspect.

• Except in cases specified by law, no arrests should be made without warrants. Only a judge should be empowered to issue arrest warrants. Before issuing such a warrant the judge should determine whether there is sufficient grounds for arrest.

• Arrest warrants cannot be issued retroactively. No judge should issue a retroactive warrant for arrest.

• No remedy currently exists for illegal arrest. Such remedy should be introduced, and police who engage in illegal arrest should be punished.

• No compensation currently exists for victims of illegal arrest. Such compensation should be defined and mandated.

• Information obtained in the course of an illegal arrest should not be admissible as evidence in court.

• The limits to body or personal search should be clearly defined.

• Procedures for house searches and night searches should be clearly mandated. No such searches should take place without the presence of the affected persons.

• Regulations and procedures should be laid down regarding seizures.

• Interrogation should not be permitted unless the arrested or detained persons have been informed of their rights in advance. It would be better to create a form for the arrested or detained person to read or have read to them and to acknowledge before any interrogation takes place. Any statements taken from the arrested or detained persons before they have been informed of their rights should be considered illegal and not admissible at trial.

• The court should be sensitive in regard to complaints of physical and/or mental torture. As stated before, the prosecutor should immediately investigate any such complaints and offenders should be punished.

• All statements from arrested or detained persons should be recorded properly. Police should be trained to take statements properly. Forms should be created for the reports and statements.

• Arrested or detained persons should be clearly informed of their right to counsel. The failure to inform such persons should be grounds to nullify any statements obtained. Such persons should also be permitted to meet with their attorneys immediately following arrest, without the requirement of a prior power of attorney. Spouses or other relatives of such persons should be permitted to sign a power of attorney on their behalf. Should such persons be unable to afford an attorney the police should contact legal aid organisations in order to ensure that an attorney is provided.

• Police lock-ups with good sanitation and conditions should be built. No arrested or detained persons should be held in water closets or any other inappropriate or inhumane places. Holding such persons in unauthorised places should be punished.

• Forced confessions are still used as evidence. Not only should this practice be entirely prohibited but all statements by accused or detained persons should be examined by a defence attorney to establish whether they have been made voluntarily. Judges should not read statements by accused or detained persons in advance of their trials. If a judge has read such a statement prior to a trial it should be grounds for replacing that judge.

• Police should be trained to take statements properly and accurately. All statements by accused or detained persons or by witnesses should be read to them or given them to read before they are signed and/or thumb-printed.

• The practice of admitting statements without calling the authors of such statements to court should be abolished. Article 42 of State of Cambodia Law 1993, which permits such practice, should be annulled. Statements should not be admissible in court without the presence of their authors.

• Police should be trained in how to collect and preserve evidence. All physical evidence should be tested and treated properly. Rules for the treatment of evidence should be established and the police be trained in their use. Improperly collected, preserved or treated evidence should not be admissible in court.

• Police, if necessary at first a special group of police, should be trained in the collection and use of forensic evidence. They should be supplied with all necessary equipment currently in use.

• People called in as experts should be properly qualified and their qualifications be examined before their opinions and/or evidence is accepted.

• Police should be required to appear in court to give evidence and be cross examined during trials. Otherwise their evidence should not be admitted.

• Police should be held responsible for their conduct and not simply for their obedience to the orders of their superiors. They should be provided with necessary legal training and should be held responsible for any and all criminal acts. The plea that an act is done under orders from a superior should not be held valid.

• The jurisdiction of various kinds of police and in various geographical areas should be made clear. Military police should not have jurisdiction over civilians.

List of Participants

Col. Chea Kim Lee, deputy chief of general staff of National Police, Ministry of Interior, Phnom Penh, Cambodia
Basil Fernando, executive director of Asian Human Rights Commission, Hong Kong
In Vuthy, executive director of Human Rights Task Forces in Cambodia, Phnom Penh, Cambodia
Kim San, training coordinator of LICADHO, Phnom Penh, Cambodia
Birgit Lindsnaes, deputy director of Danish Centre for Human Rights (DCHR), Copenhagen, Denmark
Sanjeewa Liyanage, information officer of Asian Human Rights Commission, Hong Kong
Ouk Vann Deth, lawyer of Legal Aid in Cambodia, Phnom Penh, Cambodia
H.E. Oum Bun Thoeun, under-secretary of state, Ministry of Justice, Phnom Penh, Cambodia
Phoung Sith, president of Human Rights Vigilance of Cambodia, Phnom Penh, Cambodia
Col. Prak Sdam Ann, deputy chief of Department of Inspection, Ministry of Interior, Phnom Penh, Cambodia
Jennifer Rasmussen, International Human Rights Law Group (IHRLG), Washington D.C., U.S.A.
Seng Piseth, lawyer from IHRLG/Cambodia Project, Phnom Penh, Cambodia
Sinapan Samydorai, programme coordinator of Asian Human Rights Commission, Hong Kong
Sok Sam Oeun, executive director of Cambodian Defenders Project and IHRLG/Cambodia, Phnom Penh, Cambodia
Son Seth, president of Khmer Kampuchea Krom Human Rights Association
Yim Po, executive director of the Cambodian Centre for Protection of Children’s Rights
Catherine Fok Chiu-ping, communication officer of Asian Human Rights Commission, Hong Kong

* NOTE: This statement represents the views of the participants in their personal capacity. It in no way reflects the views or positions of the institutions they belong to.