A Written Submission to the 32nd Regular Session of the UN Human Rights Council by the Asian Legal Resource Centre
1. The Asian Legal Resource Centre (ALRC) wishes to draw the attention of the UN Human Rights Council (UNHRC) to the fact that on 13 March 2015, in response to expressed concerns about trials of civilians in Military Courts, Thailand’s delegation to the United Nations (UN) stated to the UN Human Rights Council (HRC) that Thailand “is committed to the promotion and protection of human rights of all persons” and that “only a limited number of cases of those who are accused of committing serious offences are submitted to Military Courts”.
2. The ALRC would like to point out the manifest inaccuracy of this statement. The May 2014 Military coup, establishing the National Council for Peace and Order (NCPO), has sent Thailand’s human rights situation into a free fall. Although the NCPO revoked martial law on 1 April 2015, it replaced martial law with the NCPO announcement No. 37/2014, No.38/2014, and No.50/2014, which expanded powers, retaining the Military Courts’ jurisdiction over civilians, in cases of lese majeste, national security crimes, weapons offences, and violations of NCPO orders. The result of these three measures has been to extend the control of the Military judicial system to civilians and civilian cases.
3. Between 22 May 2014 and 30 September 2015, at least 1,408 cases and 1,629 civilians were prosecuted in Military Courts located throughout Thailand, including 208 people in Bangkok alone. Thailand’s Military Court system fails to provide fair trial rights guaranteed by Article 14 of the International Covenant on Civil and Political Rights (ICCPR), ratified by Thailand in 1996. Many of the charges against civilians –which include human rights defenders, pro-democracy activists, lawyers, and academicians –involve denials of rights to freedoms of expression, association, and assembly.
4. The ALRC has found that the Military Courts do not accord the same rights as Thailand’s civilian courts and violate internationally protected fair trial rights, especially rights to fair and public hearing by a competent, impartial, and independent tribunal, and the rights to legal representation and appeal.
5. The Military Court is a unit of the Ministry of Defense, and Military Court judges are appointed by and remain under the orders of their commanders. While judges in civilian court have legal training, the Military Courts have panels of three judges, and only one of the three must have legal training; the other two members of the panel are Military officials that do not need to possess legal training. The ALRC has learned that Lawyers for Human Rights (TLHR) in Thailand “submitted a motion asking the Bangkok Military Court to refer the question of the impartiality of the judges to the Constitutional Court for consideration, but the military judges ordered the attorneys to change their request on the basis that it constituted a ‘violation against the NCPO’”. This demonstrates the lack of independence of Military Courts from the NCPO.
6. Prior to 15 May 2015, civilians need to seek counsel from among the limited number of lawyers in Thailand who are able to and willing to take on their cases. Consequently, civilians may have to go through processing in the Military Courts without access to Court-appointed lawyers providing them with basic legal counseling, and with help in applying for bail, fighting charges or writing statements. These demonstrate that there is no guarantee of the basic right to legal counsel for the accused in the Military Court system.
7. If the Military Court offense is alleged to have been committed during the period of martial law, i.e. between 20 May 2014 and 1 April 2015, there can be no appeal. The revocation of martial law on 1 April 2015 means that the normal appeal provisions of the Military Court Act of 1955 apply to only new Military Court cases after that date, and it also means that rulings on crimes committed during that time cannot be appealed even after the martial law is cancelled.
8. While Thailand civilian courts are normally public, the Military Courts are operating in secret. The TLHR has reported that some trials of cases under Section 112 of the Thai Criminal Code are generally held in secret. Even when lawyers have asked for a copy of the court order directing that the hearing be held in secret, the Military Court hasrefused the request and given the explanation that the order had already been verbally made and understood in the Court.
9. The right to temporary release is a fundamental right in the judicial process, according to the Thai Criminal Procedure Code and international treaties, which provide that an alleged offender must be temporarily released, save for exceptional circumstances. However, the Military Court has typically denied the right to bail for alleged offenders. Actually, heavy punishment is not a valid reason for denying pre-trial release, nor is it a reason to presume a flight risk. Under the Thai Criminal Procedure Code, bail must be granted,unless evidence presented by the Public Prosecutor that establishes a risk of flight, interference with evidence, or reoccurrence or the alleged offences, and detention is the only means of preventing these established risks.
10. In cases stemming from the refusal to report oneself, as ordered by the NCPO, for participation in political demonstrations, and in which the defendants have pleaded guilty, the Military Courts usually ensure sentences. For example, the Military Court has ruled, in one war weapons case of possession of three bombs. The Court sentenced the accused to ten years and reduced it to five years, as he pled guilty. In this case, the Military Court did not consider the defendant’s contribution to society and the lack of a prior record as reasons to reduce the sentence.
11. In view of the above, the ALRC requests the Human Rights Council to urge the Indonesian government to:
a. Make information about case of civilians processed in the Military Court system publicly available to ordinary people;
b. Revoke the announcement of the National Council for Peace and Order ,which place civilians in Military Courts, and return them to ordinary courts;
c. Revoke the announcement of the National Council for Peace and Order that stipulatesthat some actions carry a criminal punishment, in particular participation in political demonstrations and not reporting, following summons by the NCPO.
