The trial of 58 persons charged after the fatal 25 October 2004 protest outside the Tak Bai police station in Narathiwat, southern Thailand is being perverted by the non-appearance of prosecution witnesses who say that they are too busy to appear in court. On June 14, for at least the 11th time, the trial was unnecessarily delayed and hundreds of people inconvenienced when an official failed to appear for examination. The permanent secretary of Narathiwat, Niphon Narapitakul, sent a letter to the court just that morning saying that he had to go to Bangkok for work. His non-appearance followed the absence from court of Lt. Gen. Pisarn Wattanawongkiri, former commander of the Fourth Army Region, in April. The hearings were also delayed by the former superintendent of the Tak Bai police station, Pol. Col. Sommai Putthakul, who did not come on the appointed date due to “urgent” matters in another province.
What is the fundamental difference between a democratic society and a feudal society? The laws of democratic societies have no special regard for individual status. All persons are, in principle, equal before the law. By contrast, the laws in feudal societies divide people according to their places in the social hierarchy.
In the past, Thailand operated according to feudal laws. The “sakdina” system, which had its genesis in the odious caste system of the subcontinent, divided people by rank and treated them differently: including before the courts. A long national struggle and successive reforms over many generations have moved Thailand out from that era to a time when the country can be said to be a formal democracy.
The 1997 Constitution of Thailand recognises under section 30 that all persons are equal before the law and under section 241 that all suspects in a criminal case have “the right to a speedy, continuous and fair inquiry or trial”. The consistent failure of witnesses to appear before the court is a violation of these constitutional rights. The violation is made worse when the witnesses failing to appear are state officers. And it is especially bad when the witnesses are senior officials, as in this case.
Where witnesses are from the police, army or bureaucracy, it must be recognised that these agencies operate in chains of command. It is unacceptable for ranking officials to fail to appear before a court of law because they have other duties. They have an obligation to ensure that subordinates or equals take responsibility for these tasks while they are called before the courts. This is an inviolable principle that when consistently broken–as happens in Thailand–undermines the entire system of justice. It must also be recognised that superior officers set examples for those underneath them. Command responsibility can only be effective so long as superiors comply with rules that their juniors and others are also expected to follow.
The maintenance of court authority rests heavily upon the court itself. It is for the court to ensure that the law and its rules are respected, without exception. Section 179 of the Criminal Procedure Code allows for a court in Thailand to adjourn a trial when witnesses do not appear “as it thinks fit”. The circumstances under which the court chooses to allow an adjournment or simply proceed with the case to the detriment of the side that has failed to produce witnesses are for it to determine. It has the means to strictly apply its authority in each and every case. If, however, rules are only strictly applied against the poor and less fortunate, then the court cannot perform its functions as expected in accordance with the principles of a democracy, which in the case of Thailand are very clearly stipulated in its constitution.
In recent times people in Thailand have been greatly encouraged by the role of the superior courts in handling the political crisis caused by the illegal April general election. Lower courts too have risen to the challenge and given verdicts that directly invoke fundamental rights under the constitution over antiquated laws and old ways of behaviour. These developments are very heartening. Reliable surveys have suggested that over 70 per cent of people are putting their hopes for democracy in the courts.
It follows that people in Thailand should not and cannot suffer from their courts being lenient in handling state officers, whether they are appearing as witnesses or defendants. When hundreds of people are inconvenienced by the non-appearance of a single government official, as has happened repeatedly in Narathiwat, they have a right to be angry and disappointed. They have taken the time and effort to be present, out of respect for the court and their legal obligations. Both they and the court deserve the same respect from the representatives of the state.
The Asian Human Rights Commission states unequivocally that in no modern jurisdiction can there be an excuse for the non-appearance of a witness in court other than due to serious illness, death or other unavoidable circumstances. It is the first and foremost duty of every witness to attend and respect the will of the court, and the first and foremost duty of the court to ensure that its will is respected. This is a principle established in all major jurisdictions around the world, including many in Asia. The fact that a state official has many other duties is no excuse at all. It is unacceptable.
The AHRC urges the courts in Thailand to cease with the practice of allowing government officials to excuse themselves on the grounds of other duties. It calls upon them to follow the standards set by established jurisdictions and to reject this practice of non-appearance, which perverts justice, defeats the authority of the court itself, violates the spirit of the 1997 Constitution and denies the rights of the other party to a case. It calls for the courts in Thailand to sanction any person using the practice and proceed without their evidence. It calls for compensation to be paid to the other party to the case, who has appeared in court and wasted time and money as a result.
The AHRC especially calls on the lawyers of Thailand to take a strong stand against the deliberate abuse of court procedure by government officials who are intent upon perverting justice by non-appearance. Lawyers must register clear objections to this practice before the courts and take up the issue for discussion in other forums. The Lawyers Council of Thailand should also initiate research into the extent and exact nature of this practice with a view to bringing it to an end. The National Human Rights Commission of Thailand similarly should examine this problem and advise the relevant agencies on how to address it.
The obligation to appear in court must above all else be applied with regards to state officials. The duty to ensure that state agents and agencies comply promptly and diligently with the courts ultimately rests with the state itself. The state must be held responsible when this is not the case, and must ensure that such breaches of obligation are prevented in the future. The courts must take the necessary steps to assert their authority with vigour and determination: to this they may look to the good examples set by the Supreme Court, Constitution Court and Administrative Court in recent times. People in Thailand have a strong and reasonable expectation that they will do so.
