“Not so long ago, as a lawyer working for the United Nations, I experienced a dramatic shift in my perceptions of approaches to international human rights and issues concerning the detained and imprisoned. I remember peering through the bars of a cell in Cambodia and talking with a young boy who had been detained, tortured by the police, and was languishing in prison, confused and daunted by what would or could happen next. Like most prisoners in Cambodia, he had no lawyer or human rights worker to defend him or safeguard his rights, and he had no pending trial date to determine his guilt or innocence. I flashed back to ten years before, to my college days of organizing letter-writing campaigns for political prisoners. We had demanded that they be free from torture and be granted their right to fair and speedy trials. But as I came face to face with this young boy, I realized that neither I nor my fellow students would have written a letter for him. He was not a political prisoner; he was just an unimportant 12 year old boy whose mischievous behavior, trying to steal a bicycle, had landed him in this quandary.
The prison guards were nice enough and did not appear too concerned that I was talking to this young boy who bore obvious signs of beating. They didn’t have much to hide: after all, use of force to extract confessions was just a part of standard police operating procedures. As I looked into the face of the boy, I felt myself wondering where we had gone wrong. I wondered why his interests, those of a “common” and “undeserving prisoner” had not made it into my “mission” statement.
Perhaps ten years ago, there might have been precious little that we could have done for this boy. Since that time, however, governments throughout Asia, including Cambodia, Vietnam, and China had passed new laws outlawing torture and providing citizens with basic rights, including their right to a defender. It was precisely because this boy was not a political prisoner, someone the government had any interest in, that he could easily have been the beneficiary of focused international attention. Citizens like him were unimportant to the government and the denial of their basic rights now had less to do with present policy and more to do with vestiges of an old legal system that formerly tolerated and even condoned this denial of rights. In his face, I recognized the thousands like him, not only in Cambodia but in countries like China and Vietnam as well, who would be the direct beneficiaries of a functioning criminal justice system with a standard of basic human rights. By helping these countries to implement their own domestic laws consistent with human rights principles and helping to safeguard prisoner rights, we had the opportunity to drastically improve and perhaps even save the lives of everyday citizens.
From 1994 to 1997, I committed myself to focusing upon the development of the criminal justice system of Cambodia. I arrived in 1994 with two colleagues from the United States, Naomi Li Bang and Francis James, to set up a project which would provide the first intensive training to a select group of 25 human rights activists who would later become the country’s first core group of trained public defenders. As less than ten attorneys had survived the Khmer Rouge period, the Cambodian legal system was in shambles. Although the new laws provided for the “right to a defender,” notions of defendant rights were foreign. Few people knew or understood the significance of these laws, and they had yet to be implemented. In the recruiting process, applicants were aware of this and said that they would most likely be criticized for taking on the challenge of holding the courts accountable to the new laws.
It took courage to challenge both themselves and society and to see the world in a different way. On one of the first days of the 10-month training, I asked my new students to tell me of their experience and understanding of conducting investigations for criminal cases. After a brief period of silence, Peung Yok Hiep, the oldest and most respected woman of the class finally stood up and said, “Nekru (teacher), I am the most experienced of defenders here. I have defended in over 100 trials, including murder trials, but I have never had the need to conduct an investigation… because all the criminal cases already have confessions.” Somewhat taken aback by this response, I quickly became aware of how commonplace it was for tortured confessions to be accepted as the norm. However, this shifted quickly as the defenders became aware of the rationale behind the new laws that outlawed the use of torture to obtain coerced confessions. The defenders became staunch advocates against the use of coerced confessions and became strongly committed to challenging their use in court.
But their own desire for change in the system was not enough. From the inception, there were problems with the Cambodian government and Ministry of Justice, who initially did not want defenders to be trained and organized. The judges, prosecutors and police officers, who had long held almost absolute power, felt similarly. They did not like the idea of defenders suddenly holding them accountable to laws and challenging their way of doing things. As a new public defender movement, these defenders literally had to push themselves into the intractable, old system and create a role for themselves amidst great opposition from the established order who had not invited their presence. This included resistance and opposition not only from the Cambodian government, court and prison officials, but also from segments of the international community that did not see defender work as a priority. Yet, despite these impediments, these defenders slowly began to effect change.
Not long after role-playing numerous “motions to suppress” in class, Peung Yok Hiep rose in boldness during court. As she waved her client’s bloody shirt, she asked the defendant to bend down so that she could show the judge and prosecutor the three holes in the defendant’s head, that had been inflicted during interrogation. She indignantly asked the court to respect the letter of the law. Although she was not successful in this case, months later the same judge finally granted the first motion to suppress in the country, thereby freeing a formerly pregnant woman who bore cigarette burns and had miscarried during beatings that occurred during her interrogation.
By successfully gaining access to prisoners, establishing norms that called for their representation in court, and setting up the first public defender offices throughout the country, these defenders established their presence and changed the human rights landscape in Cambodia. However, international support for these defenders is sparse and the extent of their work has been severely limited due to lack of resources.
Cambodian defenders are not alone in this situation. Recent laws strengthening citizen rights in Vietnam have been passed. Yet, very little international attention is focused upon the further development and implementation of their criminal justice laws and support of Vietnamese defenders is paltry. During the summer of 1998, I conducted a “Legal Needs Assessment” for Vietnam on behalf of the American Bar Association. In a meeting between myself and the then Minister of Justice, he acknowledged the wide gap between the letter of the law and actual implementation of criminal laws and expressed a willingness to partner with organizations in the States who could be of assistance in this regard. There are no “public defender” offices or their equivalent in Vietnam. The president of the Ho Chi Minh Bar Association told me he was saddened to know that over a thousand defendants had nowhere else to turn when his bar association was also forced to turn them away due to a lack of resources. He requested that foreign donors consider assisting their Bar Associations to establish the first pilot public defender office in Vietnam. Partnerships designed to support lawyers specifically in this area have not yet been initiated.
Given the passage of new criminal laws in China, Vietnam, and Cambodia and an openness to implement them, our response is needed to the opportunity and challenge before us. The question is no longer whether the work is possible; the question is whether we as an international community have an enduring commitment to making it happen.
Despite the obvious importance of safeguarding basic citizen rights from the excesses of authoritarian forces and ensuring effective legal processes that respect human dignity, I understand some of the reluctance to focus upon the legal development of criminal justice systems. Concerns that the laws may have been passed on paper for ulterior motives may be well-founded. The actual work involved in the implementation of the laws is long and difficult. Undoubtedly, the challenges are numerous. For one thing, the sheer volume of the work to be done is overwhelming. In response to upholding its own laws, China has taken positive steps in recent years and opened over 3000 skeleton legal aid centers that need support. But it is not only the legal aid and criminal defense lawyers who need support. Addressing the task requires the training and support of judges, prosecutors, and police as well.
Progress towards open, evidence-based proceedings and the implementation of criminal laws that safeguard defendant rights may seem slow and laborious, yet the seeds we plant will not be never wasted. As Oliver Wendell Holmes once said, “Man’s mind, once stretched, never returns to it original dimensions.”
Sometimes our own work avoidance or desire to remain in our past assumptions are the small Goliaths that keep us back from the real human rights work. When we conquer these small Goliaths, we clear the path to conquer the big Goliaths as well. David conquered the big Goliath not because the odds were for him, but because he knew himself and was dedicated to the task at hand. My Buddhist meditation teacher told me to remember, “whatever you focus upon will grow.” I believe that if we care enough to focus upon the development of effective criminal justice systems in these countries where their lack has led to rampant human rights abuses, then our focus will lead us to bear the fruit of a quiet human rights revolution.
As Martin Luther King, Jr. said, “the time is always ripe for justice.” Justice does not “roll in on the wheels of inevitability,” but comes about because of the dedication and hard work of committed individuals. Dr. King’s words were as relevant then as they are to us today. The time is ripe and the time is now. We must be the committed individuals who form together to begin this important work because the conditions are right and the opportunity awaits us.
Throughout America and other developed countries, I see a vast opportunity for the partnering of strengths and resources. We have so much to learn together as we begin this endeavor. Through trade, diplomacy and technology, our world is getting smaller and we are becoming increasingly interconnected. I see the partnering of both individuals and communities across international borders. I see support coming from all segments of society. I see public defender offices in the States collaborating with a new public defender office in Vietnam. I see a church from Cambridge, MA adopting a legal aid office in Cambodia and sponsoring the frequent flyer miles and expenses necessary to send a management consultant over to help with its organizational design. I see volunteer partnerships from all over the world helping in this movement, because an effectively functioning criminal justice system will safeguard the basic rights of future generations to come.
Martin Luther King, Jr. said, “injustice anywhere is a threat to justice everywhere.” Whatever we do for another also affects us. The roots of our humanity call us to give ourselves up to the greater whole. There is strength and power in the recognition of our interconnectedness. It is part of our destiny and heroic journey to reconnect human rights and dignity to all who share this world.
Vishna, a four year old boy who was born and lived in a Cambodian prison is my favorite hero. Because he was born in the prison, the guards who knew him his entire life grew quite fond of him and allowed him free range of the prison. He was small enough to climb through the bars. When I met him, though, he was getting older and could no longer get through the bottom rungs of the prison bars. But he could climb up to the third bar, which was slightly bigger, then slowly turn his head to the side and then find a way to barely pass through the bars to the other side. Everyday that I went to the prison, he would go through this process so he could run out to meet me. Then he would take my hand and go with me to each and every prison cell. At each of the 156 prison cells, he would reach has little hand or finger in to make contact with a prisoner. For most of them, he was their greatest joy.
I often think of Vishna. A boy born into a prison without material or physical comfort. But a boy who had a sense of his own heroic journey and desire to give up a piece of his life to something greater than himself. I think of the contributions he made to the prisoners’ wretched lives both on an individual level as he reached out his hand so many times, and also of the contributions he made to human rights through me – for he so often gave me strength when I was not sure why I should continue on. This heroic spirit and journey to reach behind the bars of injustice is open to all of us.
Please join Vishna in this heroic journey and let us partake in it together.
Karen I. Tse, Founder and CEO