An open letter to the Judiciary
The President of the Supreme Court, the Chief Justice of the Criminal Court and all other Courts of Justice throughout Thailand
For immediate release on 20 August 2020
Amidst the mobilization of students and members of the public to exercise their right to freedom of expression, to exercise their right to peaceful unarmed assembly, and to advocate for various issues and demand changes from the government; it was reported that arrest warrants were issued for 31 individuals, some of whom had already been arrested,including Anon Nampa, Phanuphong Jadnok and ParitChiwarak. On 19 August 2020, Anon Nampa was re-arrested while performing his duties as an attorney at the Criminal Court. The arrest was made as a result of the public speech he gave on 3 August 2020. Several other individuals who wereissued warrants continue to face the arrest until today. The inquiry officials applied for arrest warrants without first issuing any summons. This happened despite it being widely known that Anon Nampa and other individuals intended to publicly and openly exercise their freedom of assembly. They neither hid their intentions, absconded, nor tampered withevidence. They made it clear that upon a receipt of summons, they would willingly report themselves to the police. On 16 August 2020, the individuals who were issued arrest warrantspresented themselves to inquiry officials at the SamranratPolice Station.
The Union for Civil Liberties (UCL) and other letter signatories find that our criminal justice process wasdeveloped on par with other advanced nations. Previously, the police had the power to issue arrest warrants by themselves. Now, the power to issue a criminal warrant is exclusively vested in the “Court” since the issuance of a criminal warrant,particularly an arrest warrant, is an execution of legal power that has great ramifications for people’s rights and freedoms. That the law grants the Court discretion to either accept or reject an application for criminal warrants is a very important mechanism for the check and balance of police power. Given this legal system, UCL and the other signatories have the following recommendations:
(1) The Court should use its discretion to independentlyexamine evidence before making a decision to issue an arrest warrant or a search warrant. This will aid in maintainingchecks and balances over the execution of police power. According to statistics concerning the issuance of arrest and search warrants by the Kingdom’s Courts from 2007-2015, the Courts granted 94.37% of arrest warrants and 95.90% of search warrants requested by the police. This indicates that the Courts rarely used their power to review evidence which may justify the issuance of arrest or search warrants. Similarly, the Court arrest warrant statistics from January to September 2019 show that of the 32,628 arrest warrant applications filed, the Court granted 29,315 (90%) of the warrants and dismissed 2,451 (8%) of applications. 571 applications are pending approval and 261 applications have been withdrawn.
(2) In granting the arrest warrants as requested, the Court should base its decision on paragraph one of Section 66(2) of the Criminal Procedure Code, which states warrants should be issued “when there is justifiable evidence supporting that any person might have committed an offence and there is reasonable belief that he may abscond, tamper with evidence or cause another danger.” However, the Court should also consider the second paragraph that says “if the person has no fixed residence or has, without reasonable excuse, failed to appear as summonsed or designated, it shall be presumed that he is about to abscond.” But in many instances, including the circumstances surrounding the individuals aforementioned, it appears the Court has based its decision solely on the Criminal Procedure Code’s Section 66(2)’s first paragraph. Thus, for future issuances of arrest warrants, UCL fervently hopes that the Court, as “the Judiciary,” will thoroughly examine the arrest warrant justifications provided by the police before issuing a warrant.In addition, when considering Section 66(1) of the Criminal Procedure Code coupled with the spirit of the law, it is clear that the Court is not strictly obligated to always issue an arrest warrant if the offence carries a punishment of imprisonment surpassing three years. Otherwise, the Court must always grant arrest warrants as requested in any case which involves an offence that carries a punishment of the imprisonment for a term surpassing three years. Such a judicial processinterpretation appears to disregard the rights of the people since the beginning. UCL finds that, Section 66(1) aside, Section 66(2) gives the Court a chance to use its discretion to issue or reject the application for an arrest warrant from the police.
(3) The Court’s discretionary power when hearing a remand in custody application from the police must be carefully executed. To grant a remand in custody order, the Court must ensure there are compelling reasons and patterns of behavior which warrant the custody of each person. Most of the alleged offences in the aforementioned situationconcern speeches made at public assemblies, and the inquiry officials compiled evidence from the speeches without applying to the Court to have the persons remanded in custody. Therefore, by granting such applications to remand a person in custody without sufficient grounds, it would mean the Court is supporting the exercise of excessive power by the police. This will have a massive impact on the rights and freedoms of the public.
Therefore, it is important for the Court to refrain from using the judiciary power to sanction a remand in custody during instances without reasonable grounds. Such instancesallow state power to infringe on people’s fundamental freedoms and could constitute a grave breach of human rights. The Court must use discretion when it is clear that the police are not executing their duties to protect the people, but rather to follow the orders of the government. UCL and the othersignatories fervently hope that the Judiciary will independently help to ensure the execution of power within the criminal justice process is free of biases pursuant to the Code of Ethics of Judiciary Officers’ Chapter I on the Conviction of the Judges. Its Article 1 spells out duties of a judge as follows:
“It is essentially the duties of a judge to ensure justice for all litigants. Judges are obliged to act with integrity, honesty, fairness, in compliance with laws and legal traditions. They are also obliged to demonstrate to the public that they adhere to such values fully and strictly. Therefore, judges shall adhere to their independence and hold in the highest regardthe dignity of the judiciary.”
With respect for people’s rights, freedoms, and human dignity,
Union for Civil Liberties (UCL) (UCL)
Cross Cultural Foundation (CrCF)
Human Rights Lawyers Association (HRLA)
EnLAW Foundation (EnLAW)
NSP Legal Office
Twenty Four Lawyers Law Office
Human Rights and Development Foundation (HRDF)
Thai Development Support Center (TDSC)
Community Resource Centre (CRC)
Center of human rights lawyers for society