The Asian Human Rights Commission (AHRC) today issued an appeal on a case that has been heard in the Bangkok South Criminal Court since 1993. The four defendants are accused of having plotted to kill the then-Supreme Court president. The defence maintains that they were set up by the police; no material evidence has been brought against them, despite two senior officers having testified from 1995 to 2006. But the case goes on anyhow. So far it has been heard 461 times, by an incredible total of 91 different judges. Two of the four defendants were imprisoned for seven years before receiving bail; if found innocent, they will be entitled to claim compensation from the government for this period of detention.
The court has authority and grounds on which to stop the case. It is obliged by law to see that trials are “speedy, continuous and fair”, and it is entitled to order that no more evidence be given and the proceedings be halted where reason exists to do so. It can also order that the case be closed where the charges have not properly complied with law. The Constitution Court in 2000 made a related ruling that was favourable to the defendants. The defence has since repeatedly applied for the case to be closed, without success.
Careful study of the case gives rise to many serious questions about the state of criminal justice and the judiciary in Thailand. Why didn’t the court set down a strict timetable for hearings and ensure that all parties kept to it? Why didn’t it admonish the two senior police officers for failing to appear in court on scheduled dates? Why did it allow the prosecution to cover for the apparent lack of evidence by playing for time? Why did it refuse the applications for the case to be closed, despite the ruling of the superior court? And why hasn’t it put it to a stop to the trial at any time in the six years since?
The short answer to these questions is that Thailand’s courts are in a mess. The AHRC has documented and reported to the justice ministry of Thailand on various cases where hearings have gone on with no apparent purpose other than to prolong the misery of the defendants, while in other instances the accused have been handed lengthy jail terms after barely having enough time in which to insist that they were tortured by the police investigators. Hearings frequently persist despite a manifest lack of evidence, or where evidence has been completely mutilated by the police and prosecution, either deliberately or negligently.
A senior justice ministry bureaucrat last year acknowledged that some 30 per cent of criminal cases go to Thailand’s courts without evidence. The figure may be conservative. Cases going to court on the back of police investigations do not require preliminary hearings; they go directly to trial, in contrast to those lodged by private litigants. The police have little incentive to come up with material proof of a crime: in most ordinary criminal cases, coercing or beating a confession out of the accused, whether the real perpetrator or not, is sufficient. In some cases it may be necessary to threaten to implicate other persons in the crime unless they agree to collaborate. The public prosecutor goes along with the police version, knowing full well that when the accused retracts his confession in court the judge will side with the police. Nobody has any incentive to do anything differently, or any better.
One of the main defects in Thailand’s judiciary is its lack of leadership. There is no body of well-established standing senior judges working cooperatively to give it marked direction and purpose, as exists in many jurisdictions. Some individual judges are highly regarded within the profession, but few if any could be considered household names, and there is no corpus of such persons upon which the public can place strong expectations.
This is an historic problem in Thailand, where the judiciary has long been by far the weakest and most-tightly confined leg of the state. However, for a while in 2006, when the country was still under the auspices of the 1997 Constitution, it looked as if things were set to change. The senior judiciary was for the first time openly acknowledging the need for judicial review of government actions. The names and faces of its members were appearing routinely on the fronts of magazines and in the nightly news. The upper courts were at the forefront of national debate, and had they been left to decide upon the many important cases coming before them, one way or another they themselves would have been responsible for answering to public concerns and shaping their role for the years to come.
None of that happened. The September 19 coup has thrown Thailand back to its earlier primitive constitutionalism, whereby the courts are subordinate to the executive and its interests. The coup leaders have made plain that they won’t be held responsible for anything that they have done over the last six months, and that if necessary they will seize power again any time. The country’s superior judges remain silent on the questionable legality of military rulers making law and expecting the courts to enforce them, no matter if–in the words of Professor Worachet Pakeerut of Thammasat University–the law is “against morality and people’s common sense”.
The case in the Bangkok South Criminal Court is one among many that point to the need for drastic overhaul of Thailand’s criminal procedure. The failure to bring the trial to a prompt conclusion amounts to a violation of the defendants’ fundamental rights under both national and international law. Ultimately, its 14-year duration has defeated any prospects that the case can be fairly adjudicated, let alone by a succession of 91 judges. This failure is a disservice not only to the defendants but also to the court itself. The reputation and credibility of the judiciary can hardly be improved when the courts are themselves responsible for such protracted abuse.
The Asian Human Rights Commission does not expect that the ailments suffered by Thailand’s courts can or will be addressed by an interim administration under military control, or by any government that comes to power through a fraudulent constitutional process. However, individual judges can set examples, by using the powers vested in them to ensure that they meet their obligation to try cases quickly, continuously and fairly. The AHRC therefore urges all judges in Thailand to
1. Instruct all parties to a case, including witnesses who are state officers, to appear at court on time and according to a fixed schedule, subject to penalties–including dismissal of the charges–for failure to comply;
2. Postpone hearings only in exceptional circumstances;
3. During opening proceedings, and at any point throughout a trial, ascertain that witnesses and evidence do exist upon which to bring the charges, and that they will be brought to the court in a timely and professional manner; and,
4. Review and where necessary dismiss cases at any time that it becomes apparent that no such evidence as promised in fact exists and can be presented to the court.
Conscientious application of the existing legal authority of the courts in Thailand, although not a comprehensive remedy to the judiciary’s problems, would go a long way to improving its integrity in the eyes of the public and protecting the basic rights of plaintiffs and defendants alike.
