Thai Criminal Justice System:
Human Rights in Thai Criminal Justice System
I. History of Thai Legal System and Its Development
Thai legal system has long been considered as a civil law country because it relies on numerous written codes; for example Thai Constitution, Civil and Commercial Code, Penal Codes, and other Acts and Statues. However, It also adopted several ideas from common law that relies on precedent cases and Supreme Courts’ opinions.
In order to have comprehensive understanding about Thai legal system and Thai criminal justice system, it requires background information about Thai Ancient Law, Thai Modern Law, and how they integrated.
One of the most significant systems that have been playing an important role in Thai law is Monarchy System. Dictionary defines the word Monarchy as “a states or nation in which the supreme power is actually or nominally lodged in a monarch or as supreme power or sovereignty held by a single person”.
Thailand does not have Absolute Monarchy. Rather, it has a Constitutional Monarchy, which is the type of monarchy that limits the power of the king to a symbolic figurehead. However, he has been highly venerated by Thai population since he has reigned in June 9th, 1946.
Thai Ancient Law and Legal System
As the king and queen system has been playing an essential role in the country since before the Kingdom of Sukhothai period (1238-1350) until now, most of the governed laws and regulations including statues and codes are involved with the royal family and must be enacted and signed by the King.
During the Kingdom of Ayutthaya period (1350-1767), there were several Thai laws called Dharmasatra, Ratchasattdham, along with royal decrees, which are the rules that primarily formed Thai legal system.
After the overthrow of Ayutthaya period (1789-1806), King Rama I, the first founding father of Chakri Dynasty and the founder of Rattanakosin period, appointed a Royal Commission to revise the law. They combined all ancient laws together and formed the new law named The Law of Three Great Seal.
Then, in the era of colonization, a number of foreigners including Portugal and British sailed to trade in Thailand. They complained that the method of punishment[i] in Thai ancient laws was so severe that the foreigners preferred to be tried by their own courts. The ancient punishment were cutting off of limbs, hands and feet, pillory, flogging, tattooing a mark on the face indicating a criminal offence, confiscating all properties of the criminal’s family, all kinds of public humiliation, and capital punishment. Since Thai authorities were concerned that the country might lose its jurisdiction and sovereignty permanently, they revised the law and soften the method of punishment to be more civilized. In the period of King Rama V, Thailand was dramatically influenced by European principality. The King himself appreciated the civilization of European countries especially British and France. Therefore, he employed French worker to draft Penal Law and eventually proclaims to enforce in 1917. Subsequently, in 1932, the Great Revolution occurred – the political system had been changed from Absolute Monarchy to Constitutional Monarchy under the parliamentary system.
Eventually, he recommended his son, Prince Rabi Pattanasak, 18, to study abroad. And then, the prince was admitted to study in law school, Oxford University. Three years later, the prince returned to his home country with full of knowledge and inspiration to modernize those Thai ancient laws. After his returning, the innovation was so successful that Thai people called him “Father of Modern Thai Law.” Since then Thai laws were culminated into the Civil and Commercial, Civil Procedure, Criminal Procedure, and Penal Codes based on modern European Principles.
Recently, King Rama IX, Bhumibol Adulyadej, and the Queen are immune from any kind of lawsuit. In addition, they are mentioned and protected in many laws and regulations as follow:
Section 1 of Thai present constitution, which is the 17th constitution since 1932, states “…The King is head of state and holds the position of head of Thai Armed Forces. The King shall be enthroned in a position of revere worship and shall not be violated, accused or sued…”
Additionally, in Thai Penal Code, there are several articles refer to the royal institute including article 112 which states that “whoever defames, insults, or threatens the King, Queen, the Heir-apparent, or the Regent, shall be punished with imprisonment of three to fifteen years”. Also, under section 81 of Thai Criminal Procedure Code states “An arrest, with or without a warrant, may not be made…(2) in a Royal Palace or in a place where the King, Queen, or Regent resides, unless permission has previously been granted by the State Councilor in charge of the Ministry of the interior”.
Thai Modern Law and Legal System
Thai laws and regulations, nowadays, have adopted many ideas from the United States; for instance, the Bill of Rights. As well, Thailand espouses the idea of human rights in criminal justice procedure from other international treaties[ii] including Convention on the Elimination of Discrimination Against Women, Convention on the Elimination of all forms of Racial Discrimination, and Convention on the Rights of Persons with Disabilities. Since the constitution is the highest law and no other law shall be differ from or contrast with it, The Criminal Procedure Code, the most important code in Thai criminal justice system, perfectly follows through the concept in the constitution, especially the part of civil and human rights.
Generally, there are multiple organizations involved in each step of the justice system in the country. The first agency is the Royal Thai Police. Police officers have major duty to legally investigate, gather evidences, and deliver everything with their opinion to public prosecutors.
After the inquiry officials send investigation file along with the opinion to public prosecutors[iii], prosecutors begin their function. Thai prosecutors are not granted the power to initiate investigation nor commence the case themselves. However, they have power to order the inquiry officials to conduct an additional investigation if they believe that the evidence is not clear and strong enough. After prosecutors finish the examination, they prepare an indictment with an order of a plea of guilty or not guilty based on evidence that has been gathered. Then, they present the plea to the court in order for judges either to accept for trial or to dismiss the case. The Office of General Attorney is an independent public agency. Public attorneys in order to be free of outside influence and control are governed by their own service commission.
Afterward, when the court of justice accepts the case for trial, courts will hold the trial in open court and the accused person is presumed to be innocent until he or she is found guilty. Thailand does not have jury trial as a fact-finding method. Rather, judges preside over the courts; examine the presented documents, try and decide the sentence.
There are three levels of courts in Thai criminal justice system, which are lower court, the Court of Appellate, and the Supreme Court (Dika). One issue usually occurs in the Supreme Court of Justice in Thailand is that judges mostly use their own discretion to impose the punishment in criminal cases. For instance, in case that a defendant felt guilt and immediately and voluntarily confessed, the court might reduce the punishment scale by a half of the standard level of punishment.
II. Subject Matter of Thai Criminal Procedure Code
One of the most essential laws that regulate criminal procedure in Thailand is the Criminal Procedure Code. Section 28 of this code provides an important rule regarding who can commence the criminal cases. Both public prosecutors and injured persons are able to bring criminal cases to the courts. Nonetheless, section 34 does not bar the right of injured persons to commence their case to the court in case that prosecutor decided a non-prosecution order. There are several dissimilarities by beginning each criminal case with different prosecutors (public prosecutor or injured person). For instance, in case that entered to the court by public prosecutor, it is necessary to be investigated and examined by both police official and public prosecutor before presenting the case to court.
Therefore, it is unnecessary for the court to hold a preliminary examination, but may do so under his or her decision, section 162. In contrast, under the same section, the court shall make a preliminary examination in case that a private person is a prosecutor. One of the rules in Thai Criminal Procedure Code that differ from the U.S. criminal justice system is that the prosecutors are able to file civil cases in connection with criminal cases under section 40 and public prosecutors can be representatives for both civil and criminal cases. Thailand has also adopted several rules from the United States. The first rule is the Exclusionary Rules. Under section 226 of Thai Criminal Procedure Code, evidences are admissible only if they are obtained by lawful procedure. Also, Thai Criminal Procedure Code provides some provisions that similar to “Fruit of Poisonous Tree”. Under section 78, “no person may be arrested by arrested by any administrative or police official without a warrant of arrest…” And, under section 92, “no search may be made in a private place without a warrant of search…” In other word, all evidences gathered by wrongful conduct are not admissible.
III. Thai Law Regarding Human Rights
Domestic Laws
Recently, Thailand has been much more concerned about Human Rights issue. In order to develop its legal system to be more effective and practical, the government and other authorities attempt to devise the Constitution, Criminal Procedure Code and ratify some international treaties regarding human rights. These are not only beneficial to the country in order to be recognized by other foreign nations, but also to protect and prevent tragedy in terms of human rights similar to those occurred in the past.
Section 31 of Division 3 in the Constitution of Thailand guarantee human rights by stating that “…no person shall be subject to torture or to cruel or inhumane treatment.”
Furthermore, the highest law of the country generally assures civil and human rights to the defendant and the suspect in criminal lawsuit. They are entitled to an unbiased tribunal and they shall have rights to have an attorney appointed by the court. The court could not accept a statement and confession obtained by any inducement, torture, or illegal method.
Additionally, Thailand by The Office of the National Human Rights Commission of Thailand has issued an act regarding human rights protection in order to support the provisions in the Constitution of Thailand that is called National Human Rights Commission Act B.E. 2542 (1990).
In 1997, The Office of the National Human Rights Commission of Thailand also ratified Provision of Human Rights Promotion and Protection under the Constitution of the Kingdom of Thailand B.E. 2540(1997). This law generally contains basic human rights protection that must be prevented under the Constitution of Thailand including prohibiting a torture, brutal act, or punishment by cruel or inhumane methods. However, this law does not regard a legitimate death penalty as an inhumane mean of punishment.
In Thai Criminal Procedure Code, there are two major provisions that guarantee the rights of the suspects in criminal cases. Also, they are provided the warning against self-incrimination during their custodial interrogation. The suspects have to be advised by police officers to remain silent and the right not to self-incriminate under section 134. International Laws and Treaties
The first significant international law that support human rights issue in Thailand is The Universal Declaration of Human Right 1948[iv] that provides some provisions in order to assure fundamental rights of humanity. Thailand is a member country of this declaration since it is adopted and proclaimed by the General Assembly of the United Nations. Therefore, the country was required to publicize this declaration, display, read, and expounded in schools and other educational institutions. This law states that all human are free and equal in dignity and rights and he or she are entitled to all the rights and freedoms presented in this Declaration regardless of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This declaration also prohibits a heavier punishment be imposed than the one that was applicable at the time the criminal offence was committed.
Additionally, since in order for the country to be recognized internationally requires strong protection of human rights in the country, Thailand ratified the International Covenant on Civil and Political Rights (ICCPR)[v] on October 29, 1996. This agreement obliged Thailand to implement its domestic laws in accordance with the ICCPR. For instance, under ICCPR, a person who is tried for criminal offences is assured to have rights not only to have fair trial but also have a complex of rights including the right not to incriminate him or herself. Also, this agreement provides some articles relevant to due process in criminal procedure. The next international treaty regarding human rights that Thailand signed to be a member is the Convention on the Elimination of All Forms of Discrimination Against Women. It attempts to eliminate any distinction, exclusion or restriction on the basis of sex and introduce all rights to be exercised equally to women regardless of their marital status. In accordance with the Universal Declaration of Human Right Resolution, this agreement specifies the protection to women rights. The primary purpose of this convention is to entrench “the full and equal enjoyment by women of all human rights and fundamental freedoms and to take effective action to prevent violations of these rights and freedom[vi]”. Afterward, Optional Protocal to the Convention on the Elimination of Discrimination against Women was adopted as a side-agreement to the Convention. Thailand signed this agreement with the United Nations and it entered into force on December 22, 2000. It authorizes its parties to recognize the power of the Committee on the Elimination of Discrimination against Women to consider complaints from individuals.
IV. Hallmark Criminal Cases in Thailand
There are numerous criminal cases that draw attention from the international organizations including the United Nations and some organizations working on human rights protection. Therefore, it is beneficial to mention several cases in this paper.
Regarding disappearance of the suspects, witnesses, injured persons, or lawyers, it always occurs in Thailand. One of the important cases is the disappearance of Somchai Neelapaijit[vii], a Muslim lawyer in Thailand. Mr. Somchai was working as a human rights lawyer in the Southern part of the country which majority of citizens in that areas are Muslims. He also was a chairman of the Muslim Lawyers Group and deputy chairman of the Human Rights Committee of the Law Society of Thailand. He had learned that five suspects were treated by inhumane means, such as torturing and threatening by the police officers during their interrogation and examination.
On March 4, 2004, he tried to appeal to the Criminal Court in Bangkok for a fair treatment and for the order to transfer the suspects to other prison. He also sent numerous letters to some authorities in order to inform and demand for a fair treatment to the suspects.
However, his work seemed not to be successful. Rather, he was reported disappear[viii] on March 12, 2004. After his wife filed a complaint of the disappearance of Mr. Somchai, Prime Minister established a committee to investigate the case. On April 8, 2004 four police officers were found and charged as the suspects of Mr. Somchai’s disappearance. Nevertheless, all of them were suddenly released on bail because it was difficult to charge the suspects with the serious criminal crime such as kidnapping or forced disappearance because of the absence of Mr. Somchai’s body. More than a year after his disappearance, the police officers who were accused of still were not brought to trial.
This case has called upon Thai government to concern that the provisions in the 1998 U.N. Declaration on Human Rights Defenders still have not been practical and effective in Thailand. Some law scholars suggested that the police should not be entrusted to investigate themselves because Thai police were often an obstacle to the prosecution of members of the force. This case also revealed the traditional behavior and pattern of most Thai police, which need to be changed immediately[ix]. Then, regarding mass murder, there were several bloody actions in Southern area of Thailand including 2004 Tak Bai Massacre[x]. On October 25, 2004, after about 2000 strong protesters demanding the release of six detainees in front of a police station in Tak Bai district of Narathiwat Province, security personnel from many army and police officers tried to control by shooting and arresting them (see fig. 1). As a result, seven protesters were shot dead while at least 1,300 persons were arrested and loaded into army vehicles. Later, they were packed on the truck and transported to an army detention in Pattani province and 78 of them were suffocated and were crushed to death (see fig. 2). After this, Manit Suthaporn, the Deputy Secretary of the Ministry of Justice stated that the victims suffocated because they were piled on top of each other.
Thai government appointed a committee to investigate this case. Accordingly, the fact-finding committee reported that the dispersing methods including the firing of live ammunition and the army conscripts that the soldiers and police officers were improper and non-conformity. Also, the chief officers failed to command and monitor the transportation of the protesters to the custody.
One of the detainees proclaimed that he has been piled up in three layers among 80 persons within one military truck and if they moved their head, the soldiers would hit them by their rifles. Even though the National Human Rights Commission investigated and stated that the authorities contravened the protesters’ rights, no one has been charged with any criminal offences.
This tragedy was interested by several international human rights organizations. Asia Human Rights Watch expressed that since the Tak Bai killings were an extremely shocking event and no one has been prosecuted yet, Thai government has to bring responsibility police and military personnel to justice.
Also, there was a report that since the coup against the former Prime Minister, Thaksin Shinawatra in September 2006 there have been approximately 20 cases killing, torture, and excessive use of violation committed by the authorities of the nation against Muslim in the south. However, nothing has been done except for holding several procedural meeting by the committee, although it gave an assurance to bring those responsible to justice and trial
Besides, the Director of Asian Human Rights Watch additionally indicated that it was not sufficient for the government just to compensate the victims or their family because it was not the way to free Thai authorities from being prosecuted and it is essential for Thai officials to commence a prompt, nondiscriminatory, independent, and effective investigation into all these cases.
In spite of the fact that there have been numerous laws, regulations, and international treaties that attempt to eliminate human rights problems in Thailand, it is more crucial that not only Thai authorities but also Thai people must realize the consequences of the violation of human rights and remove all inhumane traditional pattern of the authorities during the arrest and investigation.
In sum, if the authorities of the country themselves do not respect legal procedure; they might not be able to protect and bring justice to the population of the country which is their primary duty.
[i] Http://www.thailawforum.com/articles/reformation2.html [ii] Http://www.mineaction.org/hr_treaties.asp?c=26&t [iii] Kanokpan Kalyanasuta, The Criminal Justice System and Community-based Treatment of Offenders in Thailand [iv] Http://www.udhr.org/udhr/udhr.HTM [v] Http://www2.ohchr.org/english/law/ccpr.htm [vi] Http://www1.umn.edu/humanrts/instree/cedawopprot-2000.html [vii] Http://campaigns.ahrchk.net/somchai/ [viii] Http://www.article2.org/mainfile.php/0503/ [ix] Http://www.thaingo.org/cgi-bin/content/content3/show.pl?0764 [x] Http://www.hrw.org/en/news/2007/10/23/thailand-three-years-no-justice-massacre
