The following is an open letter to all judges in Thailand signed by the Red Shirt group the 24th of June for Democracy, the progressive academic group Nitirat, and other activist groups. The letter calls on judges to critically examine the role of the judiciary in Thailand’s political conflict and the future of Thai democracy.
An open letter to judges in Thailand
March 17th 2013
In the aftermath of the undemocratic and illegitimate usurpation of power operated through the 19 September 2006 coup d’état, the Thai judiciary—be it the Constitutional Court, the Court of Justice or the Administrative Court—has faced significant and growing questions from the general public over its interpretation and application of law in a number of cases. Specifically, there has been a growing chorus of scepticism over whether or not the decisions of these judicial branches have been made in full conformity with democratic principles and in support of fundamental rights and freedoms—themselves the very basis of the rule of law.The undersigned individuals and groups would like to bring to attention of the judiciary that public mistrust towards you has stemmed from how Notifications arbitrarily issued by the 2006 coup-makers have been referred to and enforced in various rulings you have made, even after the coup-makers had handed back their power. As a result, those with sincere faith in democratic principles, including other judges, have reached an uneasy conclusion that post-coup judicial processes seen to have been all too often implemented with the goal of continuing the coup-makers’ mission. In other words, the judiciary is deemed complicit in attempts to purge democratically-elected civilian governments. Various rulings made in relation to the 19 September 2006 coup do not only compromise democratic principles, they have also yielded tangible benefits to certain individuals and political groups. In both disclosed and undisclosed ways, these parties have benefited from the rulings and decisions made in relation to the coup. Moreover, they claimed that such decisions constituted legal precedents while ignoring the fact that their origins lay in an illegitimate and undemocratic usurpation of power. Criticisms have also emerged over the use of retroactive legislation and the extensive interpretation of criminal law provisions by the judiciary, amounting to the use of analogy in criminal law, both to the disservice of the accused.
The invocation of such rulings and decisions has helped fuel the conflicts that have become part of Thailand’s recent political fabric. It is our opinion that such conflicts would not have existed had the judiciary invoked and interpreted the law under the guidance of their sincere attachment to democratic ideals and refused to enforce Notifications made by the coup-makers.
A case in which the judiciary obviously failed to uphold rights and freedom relates to legal interpretation of the Penal Code’s Article 112, an offence regarding the defamation, insulting, or threatening of the King, the Queen, the Heir-apparent, or the Regent, also known as the lèse majesté law. Thailand’s lèse majesté law is controversial in a number of respects. In particular, it sets disproportionately high penalty rates and allows anyone to file a complaint against any other person. Nevertheless, no matter how unjust a law is, it can still be adapted and applied in a manner that serves the democratic cause and the rule of law and that helps to minimize its intrinsic problems. Yet, based on what is displayed to the public, there is ground for arguing that the trials invoking the Penal Code’s Article 112 are not in accordance with legal standards. For example, in using its discretionary power to grant temporary release to the accused, the Court applies different standards to those accused of lèse majesté compared with those accused of similar offenses (in terms of the penalties they carry).
This discriminatory practice exists even though Article 40 (7) of the Constitution provides for the right to temporary release of an accused in a criminal case. Article 27 of the Constitution also stipulates that the provision of such a right is obligatory for any organ of state in its enactment, enforcement and interpretation of any legal provision. In other words, that the Court eschews the right to temporary release for those accused of lèse majesté is tantamount to denying those persons a constitutional right. Given it severity, the grounds for such a denial must be robust. Yet, to date, the Court has not provided valid reasons for its denial of bail requests for those accused under Article 112. In addition, it happens in cases that the Court transgresses the Legislative’s power by arbitrarily setting “criteria” to deny bail requests. Typical and somewhat concerning claims made by the court in this regard include those stating that “prosecution witness examination is not yet finished”, or that “the offence causes massive public grievance”.
Moreover, upon further analysis, one can also find that certain recent rulings in these cases actually contradict or are in breach of particular legal provisions. A case in point is the recent case against Mr. Ampon Tangnoppakul, aka “Akong”. The accused was convicted by the Court, in part on the basis of the following testament: “Even though the prosecutor fails to prove clearly that the accused was the person who sent out the short text messages, etc., but it was difficult for the prosecutor to present any eyewitnesses since in such a serious offence, the offender shall makes his best endeavour to conceal his act from anyone’s knowledge, and he shall seek the chance when no one is aware of his act, to commit it”. Such a reason constitutes a clear breach of the principle of burden of proof in a criminal case, whereby the prosecution needs to prove the guilt of the accused beyond a reasonable doubt. It also contravenes Article 227 (1) of the Criminal Procedure Code which stipulates that “The Court shall exercise its discretion in considering and weighing all evidence taken. No judgement of conviction shall be delivered unless and until the Court is fully satisfied that an offence has actually been perpetrated and that the accused committed that offence”. In (2), the Article continues that “Where any reasonable doubt exists as to whether or not the accused has committed the offence, the benefit of the doubt shall be given to him”.
A similarly controversial adjudication is also evident in the case against Mr. Somyot Prueksakasemsuk, in which he was imprisoned for ten years. In this case, the ruling was based on the assumption that since the accused was editor of the magazine, he should have known about the content and underlying meaning of the articles written by someone else and deemed an offence to the King. Such an assumption finds no support in any legal provisions.
In addition, the decision of the Constitutional Court no. 28-29/2555 (28-29/2012) holds that the Penal Code’s Article 112 is not in breach of the Constitution. But upon further examination of the decision, one may find that it lends weight to the public assertion that certain judges in the Constitutional Court value monarchism over democracy and the rule of law. Without valid legal reasoning, the Constitutional Court rules that the restriction of rights and freedom of expression by Article 112 is justified. In addition, the decision states that the penalty rate from three to fifteen years in jail for the offence of defamation, insulting and threatening the King, is proportionate to the crime. The Court claims that the Thai monarchy is unique and that it is related to the national security of the Kingdom, and also adds further elaboration on the goodness of the King. Such a lavish description cannot, however, be cited as a legal reason to support their consideration of the constitutionality of Article 112. In addition, in its decision, the Court appears to have confounded Article 112 of the Penal Code and Article 8 of the Constitution, the latter of which states that “The Person of the King shall be enthroned in a position of revered worship and shall not be violated,” without at the same time considering the underlying implication of this provision in a constitutional monarchy. The Constitutional Court’s decision shows that people’s rights and freedoms enshrined in the Constitution are not applicable in cases involving provisions regarding the monarchy. In other words, the Court hails the King over democracy and the upholding of people’s rights and freedoms, even though in a Kingdom, the monarchy must be under the Constitution. The monarchy is merely one of the institutions in the democratic system, and cannot be above democracy.
The few examples cited above should shed light on current problems related the judicial process in Thailand. As the problems lie at the ideological level, they can neither be solved through appeals to higher courts, nor through checks and balances, since structurally the Judiciary in the country is a closed system, which relies mainly on internal auditing. Moreover, in Thailand’s legal tradition, there are still no criminal charges which can be lodged against judges who pervert the course of justice. In the long run, it is necessary to reform the entire judicial system, to solve its internal problems and to restore its democratic legitimacy as an institution that serves the interests of democracy and the rule of law, and to ensure that such values are upheld sincerely by all judges. Most importantly, it shall make all judges realize that the power in their hands, though it is meant to be used on behalf of the King, constitutionally belongs to the people, and to no one else.
Initially, the undersigned individuals and groups would like propose the following recommendations to the judges;
1. Judges should realize that they are judges under democratic rule, and the invocation and interpretation of laws should thus uphold the spirit of democracy in a constitutional monarchy, whereby the rule of law is most supreme in the legal system.
2. Judges should reflect on their own attitudes related to legal interpretations that are not in conformity with democratic principles and the rule of law, particularly during the adjudication of cases regarding the Penal Code’s Article 112.
3. Judges who uphold the spirit of democracy and respect the rule of law should be the driving force behind the launch of to a judiciary reform, which should encompass recruitment procedures, checks and balances system, and the mechanism of accountability of judges. Most importantly, they should aim at changing mindsets and attitudes toward democratic principles and the rule of law among other judges.
The undersigned of this open letter would like to inform you that by reviewing your previous rulings and decisions in the post-coup era, it is undeniable that the judiciary has become a party in the country’s deep-rooted political crisis. This predicament makes it impossible to view the judiciary as a “mediator” in the crisis, and for the judiciary to command respect in society. As it stands, it is difficult for the Thai people to hold absolute respect for your rulings and decisions. The only way to restore public trust in the judiciary is through judicial reform. Without heeding to our recommendations, it is likely that the judiciary will come to be viewed overwhelmingly as a hindrance to rather than a protector of democracy, and in this regard shall eventually be subjected to change forces external to your system.
It is fervently hoped that all judges shall pay proper attention the aforementioned issues. With our goodwill, we pledge our support to restoring the Thai judiciary to its true role and purpose in society.
Campaign Committee for the Amendment of Article 112
The 24th of June for Democracy
Saeng Samnuk Writer Club
Poets for People
Patinya Na San
at Sri Burapa Hall, Thammasat University