The trial of 58 persons charged after the fatal 25 October 2004 protest outside the Tak Bai police station is getting under way in Narathiwat, southern Thailand. Although 85 persons were killed–seven during the protest and 78 in army custody afterwards–it is not the military and police officers responsible for their deaths who are on trial. Instead, the persons in the dock are those whom the police and public prosecutor have identified as the supposed instigators of the violence on that day. The persons responsible for the mass deaths that ensued are appearing as witnesses for the prosecution.
Or so they should be. So far, on the two days in which the first witnesses for the prosecution were due to give evidence, neither of them bothered to turn up. Lt. Gen. Pisarn Wattanawongkiri, former commander of the Fourth Army Region and the person in charge on the ground when the protest was abruptly ended through massive army and police violence, didn’t show on April 20. The public prosecutor said it was because he couldn’t be located to be summonsed. The army general had disappeared, although he had reportedly been on television only a few days earlier. On April 26, the performance was repeated, when the former superintendent of the Tak Bai police station, Pol. Col. Sommai Putthakul, also failed to make an appearance. This time the public prosecutor mentioned that the police officer was away on an urgent case in another province. Why another policeman couldn’t have done the job was not explained. No written evidence was presented. Again the court was adjourned without any progress, causing inconvenience to the defendants, their lawyers and other persons assembled to hear the proceedings.
Nor were these the first delays in the case caused by the public prosecutor. In the preliminary hearings in 2005 the trial was postponed no less than nine times. On April 11, June 17, 21, 22, 23, 24, July 28, September 26 and November 10 the court process was delayed by the prosecutor because “documents were not ready”. As it is, the case is set to run until July 2007. How much longer it may go due to delays remains to be seen.
One of the major reasons for denial of justice in Asia is court delays. One of the main reasons for court delays is the tendency of state officers to treat the courts with contempt. In Sri Lanka, studies have established that cases typically collapse because police officers do not come and give evidence when required. By contrast, in developed jurisdictions, the authority of the courts is not in doubt. No government officer will question a court order, or fail to comply, without good reason. If a government official in Hong Kong receives a notice from a court while on holiday, she will cut short her leave if obliged. If a prosecutor submits a case, even a complicated case involving many defendants, it will be in order. Yet in Thailand, even an on-duty police officer posted at a location nearby the court does not turn up because he has “an urgent case” elsewhere, and this explanation is accepted by the court without further ado. A prosecutor can delay a trial indefinitely on the excuse of not having documents ready, which is no better than a schoolchild telling the teacher that the dog ate his homework.
Courts in Thailand, like most other parts of Asia, have not yet established actual authority over state agents. Although the powers of a court exist in law, they are not enforced in reality. The inability of the court to establish authority over state officers completely undermines its duty to protect the fundamental rights of the people.
This raises serious questions that go beyond the walls of the court or the parameters of the law, and to larger issues of democracy and human rights. The King of Thailand on April 25 rightly instructed senior judges to find a solution to the current political impasse, stressing the need for popular faith in the courts and rule of law for a country to survive. But how can a court system defend the rights of a person as laid down by the constitution or other law if it cannot exert its authority over a state functionary? How can it uphold the rule of law when law enforcers feel that they have the right to choose whether or not to come and give evidence? How can it proceed promptly and fairly when the prosecutor thinks he can request repeated adjournments without any reasonable explanation?
The challenge for the court in Narathiwat is not merely legal. It is not restricted to the rights and liberty of the 58 accused. Rather, it is faced with the same challenge that is today before the senior-most judges in the country: to uphold democracy in the fullest. The Asian Human Rights Commission urges the court to take on this challenge by demanding that all parties to the Tak Bai case meet the highest standards of professionalism. The court must insist that criminal procedure is respected and followed to the letter. It must demand full written explanations by the public prosecutor any time a witness does not appear or a piece of material evidence cannot be made available when required. And when Lt. Gen. Pisarn and Pol. Col. Sommai are brought before the court they must be required to give explanations, together with the prosecutor, as to why they were not present on the dates required. If these are not satisfactory, they must face contempt of court proceedings or equivalent. This is how a court makes its authority felt. This is how the court in Narathiwat must make itself understood. In view of the number of defendants and manifest importance of this case to the country, this much is essential. For the future of democracy in Thailand, it is imperative.
