An academic panel hosted by the progressive Nitirat law group last Sunday at Thammasat University debated the role of the courts in the pursuit of justice in Thailand. Special attention was paid to article 112 of the Criminal Code, also known as the lèse majéste law, which states that “whoever defames, insults, or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.” The panel, which consisted of academics and activists, argued for reform of the Thai judiciary in order to adapt it to a democratic state.
The panel members raised several concerns regarding the lack of legal basis for the actions of judges in lèse majesté cases. According to Thai law, in order for the court to find a defendant guilty of a crime, his/her guilt must be proven beyond any reasonable doubt. Ms Sawatree Suksri, a member of Nitirat and lecturer of law at Thammasat University, argued that Thai courts often betray this fundamental principle,
In Akong’s [Ampon Tangnoppakul] case, the courts were satisfied with a lack of evidence of his guilt, citing instead his presumed guilt. This is a clear violation of the “burden of proof” principle that underlies criminal law.
In addition, Ms Sawatree was critical of the denial of bail for those accused of lèse majesté. Section 40 of the Constitution guarantees the right to temporary release, and bail is necessary in order for defendants to be able to fight the case fairly, she said. Ms Sawatree argued that the reasons for denying bail for 112 defendants are often fabricated by the court and have no legal grounds.
It is important that we discuss these issues. The Court must be held accountable like all other democratic institutions.
Dr Piyabutr Saengkanokkul, also a member of Nitirat and lecturer of law at Thammasat, was critical of the role of the Constitutional Court in upholding rights and liberties. According to him, the Constitutional Court only protects the rights of Thai people as long as they do not interfere with the rights of the monarchy. He cited the Constitutional Courts response to Somyot’s petition regarding to constitutionality of article 112 as evidence of this trend. In the document, all justices argue that article 112 is essential to the protection of the monarchy.
Article 112 clearly limits freedom of expression which is grounded in the constitution. Freedom of expression is crucial in a democracy, and sentencing people to jail for defamation is excessive and inappropriate.
The politicization of the judiciary was also discussed by Dr Worajet Pakeerat, also a member of Nitirat. He claimed that the courts have been accused of siding with the coup-makers due to the courts’ decision to uphold the laws that were issued after the coup, instead of rejecting them as illegal.
Dr Worajet also discussed the deeply entrenched culture of perceived superiority that permeates the courts in Thailand.
We must address the underlying ideology of the judges in Thailand. We cannot enact change simply by changing the law, we must also change the judicial culture that perpetuates injustice.
As an example, Dr Worajet cited the recent admission by the President of the Constitutional Court that the decision to dissolve the People’s Power Party in 2008 was not based on law, but was done “out of concern for Thailand’s political stability”.
The panel members argued that, along with the executive and legislative branches of government, the judiciary forms an important part of the democratic system, and must therefore be held accountable to the public.
Noted historian and social critic Dr Nidhi Eoseewong also stated that,
In a democracy, sovereign power belongs to the people, and power is bestowed on the courts by the people.
An open letter to judges in Thailand was also distributed at the event.