THE REASONABLENESS TEST

Courtesy of Phnom Penh Post at http://www.phnompenhpost.com

Written by Theary C. Seng
Friday, 02 May 2008

Is it reasonable in light of totality of circumstances?
At the April 23 Pre-Trial Chamber hearing of appeal by Mr. Khieu Samphan against the Order for Provisional Detention where I sat in as a civil party, defense lawyer Jacques Verges argued that he cannot proceed to defend his client because not all of the Extraordinary Chambers (ECCC)’s documents have been translated into French, one of the three ECCC official languages.

As a civil party, I responded: “Mr. Khieu Samphan, the gentlemen – your Khmer and foreign lawyers – it is of fundamental importance that you do not forget this principle: We must not let the perfect be the enemy of the good. We must be reasonable. We must use common sense.” After stating this in Khmer, I emphasized the principle in English and sat down.

The Pre-Trial Chamber adjourned the closed-door session on this matter and the issue of provisional detention, which the parties did not have time to argue, was postponed for another day.

The perfect as enemy of the good
The demand of Mr. Verges in this regard can be likened to the demand for perfection. There are tens of thousands of pages of documents involved in this Case File No. 2 (which groups all the detained senior Khmer Rouge leaders together, in contrast to Case File No. 1 which relates to Tuol Sleng, effectively the Duch case). Potentially, there are thousands of pages more that will be produced by all the actors and parties involved.

If we are to follow Mr. Verges’ demand to its logical conclusion, countless more translators will need to be hired requiring many more years of waiting while they translate.

Here, we haven’t even addressed the quality of the translations, the Pandora’s Box possibility of having a devious party clogging the process further by overloading it by generating questionable documents and briefs and filings, and the civil party applications that are flowing into the Victims’ Unit by the hundreds.

In this particular situation, the relevant documents relating to provisional detention have been translated into French. Also, the Khmer defense lawyer, Dr. Say Bory, who obtained his law degree in France, is fluent in all three ECCC languages. Related to this, there are translators made available to all parties should they have language problems.

Hence, the rights of the defendant are not at risk of being violated.

We should also keep in mind that all the parties involved are equally handicapped. It is not an issue of fairness whereby the ECCC is targeting the Defendant Khieu Samphan. To the contrary, Mr. Khieu Samphan is afforded all the protections of the law, as he rightly should.

Hence, we must ask ourselves: Is the demand reasonable in light of the totality of the circumstances? Well, what are some of the circumstances? A 3-year mandate. Funds limitations.

Defense rights. The reality of the social, political, and legal environment. Capacity and public patience. The public’s participation. National reconciliation (a stated objective of the ECCC, in addition to law and justice objectives). Etc.

Reasonableness Test for Provisional Detention
As a civil party, I have argued the reasonableness test and the need to use common sense at Mr. Nuon Chea’s provisional detention hearing, and will do so again for Mr. Khieu Samphan.

The issue is whether it is necessary to detain provisionally these senior leaders before the public trial? The answer is a resounding YES. These senior KR leaders could be killed, could escape, could destroy evidence, could intimidate witnesses, could create instability in a society of still traumatized people. If we cannot assure their presence in court – after 30 years of waiting, after the time and energy spent on establishing the ECCC, after the arrests – is it reasonable to detain them? To do otherwise would be reckless and negligible; it would be to shut our eyes ostrich-like to the facts of life here in current Cambodia.

In this regard, we find resonance in this excerpt from the Harvard Law Review (1915) by Terry:

It is quite impossible in the business of life to avoid taking risks of injury to one’s self or others, and the law does not forbid doing so; what it requires is that the risk be not unreasonably great.

The essence of negligence is unreasonableness; due care is simply reasonable conduct… precautions need not be taken against every conceivable or foreseeable danger, but only against probable dangers.

Reasonableness more generally
I find it instructive to listen directly to the voices of the sages of the past, whose ideas have withstood the passage of time. One sage is American urist Oliver Wendell Holmes (excerpts from “Common Law”):

- The question is not whether the defendant thought his conduct was that of a prudent man, but whether you think it was. (The “you” here is the jury, a pool of ordinary individuals from society.)

- The standards of the law are standards of general application. The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men…

- … when men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare. If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account.

- There are exceptions to the principle that every man is presumed to possess ordinary capacity to avoid harm to his neighbors, which illustrate the rule, and also the moral basis of liability in general. Judge Holmes goes on to give examples of a man with a distinct defect, i.e., A blind man is not required to see at his peril… an infant of very tender years is only bound to take the precautions of which an infant is capable… Insanity is a more difficult matter to deal with, and no general rule can be laid down about it.
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Theary C. SENG
Executive Director

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