Debriefing on Theary Seng Mass Trial on Dec 7 in Phnom Penh

Although today’s hearing was brief, it was replete with due process abuses.

First, I met a foreign journalist outside the courthouse who had been denied access to the trial because he had failed to register in advance.  In general, all criminal trials in Cambodia are and remain open to the public.  But in January 2020, the Government began requiring advance registration only for political trials as a transparent way to reduce access.  This arbitrary distinction is a clear violation of Theary and the other defendants’ right to a public trial.

Second, there was great drama around Theary’s choice of outfits.  Theary wore the outfit of an Apsara, a beautiful female creature in Buddhist and Hindu culture that visits Earth from heaven to entertain gods and kings by dance.  Theary chose this traditional dress to dramatize and underscore that she was being subjected to a political show trial and this was really theatre – but unlike the other actors who are given strict roles by the Government, she is in charge of her own role and her own script.  She also shaved her head, which in Khmer culture symbolizes mourning and brokenness.  Juxtaposing these two instantly recognizable but never seen together symbols for the Cambodia public was designed to vividly portray the situation the country is in.

Initially, the guards to the courthouse wouldn’t even let her in.  When she explained she was a defendant, confused, they let her enter.  But then another guard told her that “according to an internal rule” this wasn’t proper dress for court.  Theary asked to be shown the rule.  Another 15 minutes later, the Chief Judge Ros Piseth’s clerk Dy Lila came out and told her the judge said she needed to change in proper clothing.  Theary then challenged this assertion and asked how it was possible that proper clothing in a Cambodian court included Western suits and ties for men but that somehow a traditional Khmer outfit for women was excluded.  The clerk scurried away and Theary was let in to the courtroom another 15 minutes later.

When the trial resumed, in his opening remarks, the lead Prosecutor Seng Heang actually decided to address Theary’s outfit.  He said: “Today, Theary is wearing a traditional costume that is beautiful but the court is having a hearing, she is a defendant, and this is not appropriate clothing.  The judges should take into account that her clothing is not appropriate,” suggesting somehow that the how she chose to address should have bearing on her guilt or innocence of the charges brought against her.  Such a statement was grossly inappropriate and violated her right to the presumption of innocence by seeking to prejudice the judges against her.  Ultimately, Judge Ros Piseth later said to Theary: “The clothing is not wrong but traditional costume should be preserved for traditional events and I request that you wear other clothing at the next hearing.”  In fact, neither the prosecutor nor the judge cited to any violation of court rules and were arbitrarily imposing their own personal standards on court dress.

Third, there were further irregularities with Theary and the other defendants’ different court summons.  Originally in November 2020, Theary was only provided the summons without the underlying complaint in violation of the law.  Her protestations at her first hearing then that she was unprepared for a trial as she didn’t even know the charges against herself were ignored.   On November 23, 2021, three police delivered a new summons with the complaint to her home.  They insisted this wasn’t beginning a new proceeding and that it was an extension of the first one.  Counsel for other defendants in court today complained they never got their summons in the first place.  Both the prosecutor and judge summarily dismissed all these concerns out of hand.  

Fourth, in another irregularity, we had learned from Theary’s new summons that one of the three original judges had been replaced by a new judge, who hadn’t been at the prior hearings.  A criminal defendant is entitled to have a judge or jury present for all proceedings so the replacement of a judge should have resulted in a restarted trial.  Both Theary and different defense counsel complained vociferously about this.  But both the prosecutor and the judge explained that judges in Cambodia rotate courthouses, they explained the prior judge had moved, that the new judge was appointed in accordance with regular procedures, that she had read the case file, and both said, using the same language “there is nothing to worry about.”  Except, of course, that this denies the defendants’ basic due process rights.

Ultimately, this brought Theary’s case to a conclusion for today.  The judge said the defendants were being divided up into three groups with multiple hearings for the first two groups.  Theary was mentioned alone in her own group with the next hearing scheduled for Tuesday December 28th.  Having a hearing scheduled between Christmas and New Years is worrying, but it is impossible to know if the Government is aiming to convict or acquit her without much public attention.  Later the judge seemed to imply verdicts on all the cases will be issued on March 8, 2022.  Despite the challenges posed by the holidays, I would ask that all those with a presence in Phnom Penh try to ensure that Theary’s next hearing has maximum coverage. Thanks so much for your ongoing help and support.

Best,

Jared