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THAILAND: Court dismisses case against protesters; prosecution should cease pursuing innocent persons

September 16, 2007

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ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal

17 September 2007
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UA-279-2007: THAILAND: Court dismisses case against protesters; prosecution should cease pursuing innocent persons

THAILAND: Threats to freedom of assembly; constitutional rights
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Dear friends,

The Asian Human Rights Commission (AHRC) is pleased to inform you that a court in Thailand has dismissed an appeal against 20 persons who were arrested for demonstrating against a pipeline project. The court held that the group was exercising their freedom of assembly which was protected under the abrogated 1997 Constitution. Another case against 12 protesters from the same protest is still pending in the Court of Appeal. The AHRC urges you to write to the attorney-general and ask him to cease appealing against the court judgments in the first case, and withdraw the appeal in the second.

CASE DETAILS:

On 31 August 2007 the Court of Appeal affirmed a December 2004 lower court decision that 20 protesters were not guilty of damaging public property, carrying arms without permission, conspiring with more than ten persons to create a disturbance or do an act of violence, failing to disperse when ordered and assaulting government officials.

The court agreed with the lower court that the protesters were exercising their rights to assembly and to participate in decision making of natural resources, when they came on to the streets in Songkhla Province on 20 December 2002, in order to interrupt a mobile cabinet meeting and express their opposition to the construction of a cross-border gas pipeline into Malaysia. (For more details, please refer to the third case listed in "Human rights judgments under the 1997 Constitution of Thailand", article 2, vol. 6, no. 3, June 2007, http://www.article2.org/mainfile.php/0603/282/.)

The rights of the protestors were all protected under section 44, 46 and 56 of the 1997 Constitution, which was thrown out by a new military coup in September 2006 (see further: Thailand's struggle for constitutional survival, article 2, vol. 6, no. 3, June 2007, http://www.article2.org/pdf/v06n03.pdf).

The prosecutor has a month’s time to decide whether to file an appeal on this case, or to seek an extension.

Another case was later filed against 11 villagers and a university student who participated in the same protest. They were charged with the same offences as the 20 protesters. The case was in July 2007 dismissed in the lower court on the same reasoning, but the prosecution again filed an appeal, which is pending.

See further: AS-224-2007.

BACKGROUND INFORMATION
This is another example of the sort of "evidence-less" case which prevails in Thailand. For instance, 58 men were accused of causing disruption and attacking the Tak Bai police station in 2004; the case dragged on for more than two years until the state admitted there was insufficient evidence and dropped it (AHRC-OL-060-2006).

The director of Department of Rights and Liberties Protection, Charnchao Chaiyanukij, in 2006 estimated that more than 30 percent of criminal cases sent to court lack evidence. (AS-261-2006) Without thorough investigation by the police and review by the public prosecutor, cases are easily falsified. This not only creates burdens on innocent defendants and wastes public funds, but also causes pressures on the judiciary and unnecessary delays in other cases.

While many innocents are wrongly charged in court, the public prosecutor fails to bring those who committed heinous crimes to court. For example three army officers were named responsible for the 28 deaths in the Krue Se killing after a postmortem inquest have not yet been charged with any offence (UP-069-2007).

SUGGESTED ACTION:
Please write to the attorney general of Thailand, and ask him to close the two cases and cease appealing where no evidence exists upon which to do so.

To support this appeal, please click here:

Suggested letter:

Dear __________,

THAILAND: Please close cases against persons accused of wrongdoing for demonstrating against the Thai-Malaysian gas pipeline project

I am writing to ask your office to close the two cases against protesters who were arrested for protesting against the Thai-Malaysian gas pipeline project in 2002.

The first case was filed in 2002 against 20 persons, including 12 NGO workers and eight villagers. The case was dismissed both in the Court of First Instance and the Court of Appeal (Black Case No. 195/2546, Red Case No. 2321/2547, Songhkla Provincial Court).

The other was filed in 2004 against 11 villagers and a university student. The case was dismissed in the Court of First Instance and now pending in the Court of Appeal (Black Case No. 1044/2547, Red Case No. 333/2550, Songkhla Provincial Court).

Both the Court of First Instance and the Court of Appeal have dismissed these cases. The courts have agreed that the protesters were exercising their rights to assembly protected under section 44 of the abrogated 1997 Constitution. Under section 46 and 56 of the Constitution, they also had the right to express their opinions on the Thai-Malaysian gas pipeline project, a large project likely to affect the quality of the environment.

I am disappointed that the prosecutor had filed the two cases despite insufficient evidence against the defendants. The quality of evidence presented by the police is indicative by a video edited out of sequence, and a red flag on a bamboo pole which the police claimed to indicate the defendants' violent intentions.

Meanwhile, although innocents are being brought into courts in Thailand without sufficient evidence, I wonder why some powerful persons who have committed heinous crimes are still walking free and out of reach of the justice system, like General Pallop Pinmanee, Colonel Manas Kongpan and Lieutenant Colonel Tanaphat Nakchaiya who have been identified as responsible for the Krue Se killing in a post mortem inquest (Pattani Provincial Court, Black Case No. Chor 4/2547). Although the inquest was completed in 2006, up to now no legal action has been taken against any of them.

Since the courts have already unequivocally ruled against the state on these cases, I do not see any ground for further appeals. Therefore, I urge you to close these cases to avoid a further waste of state funds and unnecessary harassment of ordinary persons who were exercising their legal rights, and instead concentrate on bringing to justice officers responsible for the many grievous crimes that have occurred during recent years in Thailand, against whom ample evidence exists to secure convictions.

Yours sincerely,


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PLEASE SEND YOUR LETTER TO:

Mr. Pachara Yutidhammadamrong
Attorney General
Office of the Attorney General
Lukmuang Building
Nahuppei Road
Prabraromrachawang, Pranakorn
Bangkok 10200
THAILAND
Tel: +662 224 1563/ 222 8121-30
Fax: +662 224 0162/ 1448/ 221 0858
E-mail: ag@ago.go.th or oag@ago.go.th

PLEASE SEND THE COPIES TO:

1. General Surayud Chulanont
Interim Prime Minister
c/o Government House
Pitsanulok Road, Dusit District
Bangkok 10300
THAILAND
Tel: +662 280 1404/ 3000
Fax: +662 282 8631/ 280 1589/ 629 8213
E-mail: spokesman@thaigov.go.th
2. Mr. Charnchai Likitjitta
Interim Minister of Justice
Office of the Ministry of Justice
Ministry of Justice Building
22nd Floor Software Park Building,
Chaeng Wattana Road
Pakkred, Nonthaburi
Bangkok 11120
THAILAND
Tel: +662 502 6776/ 8223
Fax: +662 502 6699/ 6734 / 6884
Email: ommoj@moj.go.th

3. Professor Saneh Chamarik
Chairperson
The National Human Rights Commission of Thailand
422 Phya Thai Road
Pathum Wan District
Bangkok 10300
THAILAND
Tel: +662 2219 2980
Fax: +66 2 219 2940
E-mail: commission@nhrc.or.th

4. Mr. Leandro DESPOUY
UN Special Rapporteur on the Independence of Judges and Lawyers
Room: 3-060
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrchk.org)

Document Type :
Urgent Appeal Case
Document ID :
UA-279-2007
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.