Open Letter to President of the Supreme Court of Thailand Concerns about the judicial independence: Bail application, withdrawal and revocation of political activists’ cases including Get, Baipor, Tawan, and Bam
Pursuant to more than 15 individuals being remanded in custody on politically motivated charges, and given their being denied to post bail, some of them have been held in custody for more than 300 days. Although others have been allowed to post bail, they are required to wear Electronic Monitoring (EM) devices and some are even required to remain inside their home 24 hours a day and are subjected to various other restrictions of their rights and freedoms.
As the Constitution of the Kingdom of Thailand 2017’s Section 29, second paragraph, prescribes that “a suspect or defendant in a criminal case shall be presumed innocent, and before the passing of a final judgment convicting a person of having committed an offence, such person shall not be treated as a convict,“ its second paragraph prescribes that “custody or detention of a suspect or a defendant shall only be undertaken as necessary to prevent such person from escaping”, and its last paragraph prescribes that “an application for a bail of a suspect or defendant in a criminal case shall be accepted for consideration, and excessive bail shall not be demanded….”
The determination of bond and the imposition of requirements that suspects in political cases have to abide by in order to be granted provisional release clearly violated the constitutional provisions. These individuals have made no intention to run away. On the contrary, they have seriously made it clear that they are ready to fully exercise their rights to defend themselves to ensure the government respects people’s rights and freedoms, particularly the right to freedom of thought, expression, and political belief, a fundamental right in a democratic society.
In addition, they have been advocating for judicial procedures, particularly the court, to deliver justice and to uphold people’s rights and freedoms concretely and genuinely. That some judges have these suspects or defendants in political cases remanded in custody pending the trial or before the delivery of final verdict is tantamount to finding them guilty and convicting them for the charges already. Such order does not respect the presumption of innocence principle.
Moreover, more than one restrictive condition to be bail out imposed on them are gravely detrimental to their rights and freedoms and incompatible with the principle of justice and human rights. As part of such conditions, these individuals are barred from ‘recidivism’ based on which they are accused by the public prosecutors even though the public prosecutors as plaintiffs in such cases are yet to prove beyond doubt that they have committed such offences as alleged.
According to one of the Rule of Law principles, a suspect or a defendant shall be treated as an innocent and they have the right to argue against the allegations leveled on them by the public prosecutors. This will ensure that the Court can review the case with fairness, impartiality and without biases based on human rights principles upheld in the International Covenant of Civil and Political Rights (ICCPR)’s Article 14 on the right to fair trial and the Constitution.
In addition, they are required to wear Electronic Monitoring (EM) devices while some are required to remain inside their home 24 hours a day and other restrictions, which are not different from being subjected to a house arrest. Their efforts to challenge orders of certain judges they have found unfair to them through the judicial process and any appeal against the orders of the Trial Courts have often gone in vain.
Since it is impossible for them to demand their rights in the judicial process, it is unacceptable for such suspects or defendants in political cases to act in compliance with the unfair orders. As a result, they have expressed their objection through a democratic way. For example, on 16 January 2023, Tantawan “Tawan” Tuatulanon and Orawan “Bam” Phuphong, two activists, have requested the court to withdraw their bail as a symbolic act to demand the Courts to release all political prisoners, resulting in their return to prison.
As widely reported in social media, their three demands include (1) reform of the justice process, (2) stop prosecuting individuals who exercise their rights to political freedoms, and (3) all political parties must adopt a policy to seek to repeal the Penal Code’s Section 112 (lese majeste) and Section 116 (sedition). At the moment, both activists have been on a hunger strike since 19 January 2023. Given their vulnerable health after the dry fasting, they have been transferred to the prison infirmary.
Previously on 14 January 2023, Sophon “Get” Surariddhidhamrong and Nutthanit “Baipor” Duangmusit have had their bail revoked by a judge who himself had initiated the bail revocation hearing citing that both activists had breached the bail requirements through participating in public assemblies during the APEC Meeting held in Thailand in November 2022. During the hearing, the judge terminated their provisional release and have had them remanded in custody, the order of which appears unfair to various parties.
Given the unfair exercise of power by certain judges and due to limitations or flaws in the judicial process and Thai law which make checks and balances impossible even though some discretion has been made in violation of the Constitution and the laws, the undersigned organizations urge that you as the head of the judiciary should conduct an inquiry and promptly address the problems regarding the provisional release, the determination of bond and bail conditions, and the revocation of bail to restore trust from the public and international community toward the Thai judiciary which functions as a pillar in Thailand’s judicial system.
This should ensure the judiciary help to keep in check and balance the exercise of power by the administration, to protect people’s rights and freedoms, and to deliver justice, the outcome of which is critically important to genuinely bring solutions to the conflicts and to bring peace and sustainable development to society based on the principles in a democratic society.
Please be informed and help to promptly investigate and rectify the rulings concerning the provisional release of suspects or defendants in political cases.
1. Cross Cultural Foundation (CrCF)
2. Human Rights Lawyers Association (HRLA)
3. Human Rights and Development Foundation (HRDF)
4. Campaign for Popular Democracy (CPD)
5. Young People for Social-Democracy Movement, Thailand (YPD.)
6. Social-Democracy Think Tank
7. Committee of Relatives of the Black May 1992 Heroes