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1. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
2. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
84. The Asian Legal Resource Centre has in reference to preceding articles drawn attention to the defects in policing and administration of justice that impinge upon the ability of persons in Thailand to obtain a fair trial in accordance with article 14 of the Covenant. In particular, the entire programme of eliminating alleged drug dealers in 2003 was premised upon the attitude, articulated on numerous occasions by the Prime Minister and other senior officials, that these persons did not deserve natural justice. Hence, a special category was created for which the provisions of the Covenant and their equivalents under the Constitution of Thailand were deemed non-applicable, and for whom any pretence of ordinary criminal procedure could be abandoned. The ALRC has pointed out that this was an extremely dangerous step that had the effect of deeply undermining principles of fair trial in Thailand.
85. Court-appointed lawyers in Thailand fail to properly undertake their duties. To ensure fair trial in accordance with article 14 it is necessary that the accused have a defence lawyer. As noted above, the law in Thailand provides for the court to appoint a lawyer where the accused does not otherwise obtain one and faces a possible prison term, in accordance with section 242 of the Constitution. However, the Asian Human Rights Commission wrote to the Minister of Justice on 9 March 2005 expressing concerns that many of the lawyers acting as court-appointed attorneys are not representing their clients adequately. A copy of that letter is contained in Annexe 13. In the case of Mr Chanon Suphaphan, outlined in the letter, he was sentenced to 10 years in jail on allegations of robbery.[11] However, an investigation of the case by the AHRC has uncovered numerous irregularities that speak to the day-to-day defects in policing and administration of justice in Thailand. These include that the police were wilfully negligent in their investigation of the case: refusing to record witness statements; when pressed, not recording all statements; not producing the witness statement in court; not making the statement available to the defendant after the first hearing. As none of the parties to the case are influential persons known to have contacts with the police that would afford them preferential treatment, it can only be surmised that the reasons for the officers?actions have been to obtain convictions for the purpose of getting promoted and bonuses.
86. Of particular concern throughout the case, however, was the absence of the court-appointed attorney. Like the police, he was totally disinterested in the needs of his client. In fact, it would be fair to say that he did even less than the police, perhaps expecting that the case would be dropped or perhaps without any interest for the consequences at all: simply telling the defendant that he didn’t have anything to worry about. He failed to undertake any proper investigation into the case or challenge the failure of the police to present evidence in court. In short, he knew and did nothing about the case. Regrettably, the ALRC has observed that in most other cases where accused persons are represented by court-appointed lawyers in Thailand, they have received little if any real legal assistance. The case of Mr Metta Saiphan and Mr Anucha Siriporn na Ratchasima detailed in Annexe 11 is another example of the same. This observation was echoed recently by an elderly villager with whom a staff member spoke, who said that, "in my experience, people who have public defenders are found guilty." Attempts by staff to obtain advocates from the Law Society to replace those appointed by the court have also been less than successful. On one recent occasion when a provincial Law Society chief was asked to provide a lawyer instead of the one from the court he replied that one wouldn’t be any better than the other.
87. As most of the persons being represented by court-appointed lawyers in Thailand are poor people facing ordinary criminal charges, the non-performance of duties by court-appointed lawyers has a detrimental effect on the routine enforcement of rights under the Covenant. The question that should be asked is in how many courts the public defender is actually serving the interests of the public prosecutor? The consequences of this unfortunate situation fall not only on the accused, but also on society as a whole. When large numbers of people subscribe to the opinion voiced by the villager mentioned above, the effect is to cause a general demoralisation in society, and loss of faith in its key institutions. When people lose faith in the ability of the judiciary to perform its functions fairly and properly for reason of inactive and disinterested police and public defenders, the rule of law is further undermined.
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[11] AHRC Urgent Appeal UA-40-2005: THAILAND: A man receives a ten-year sentence for coming to the assistance of a drunk disabled person, 9 March 2005.
Posted on 2005-03-22
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