By Thai E-News
อ่านพากษ์ภาษาไทย ซีรีส์ชุดคำถามตัวโตๆต่อรัฐบาลนี้:คำถามแรกพวกคุณมีหัวใจไหม?ทำไมเพิกเฉยกับคนเสื้อแดงที่่ติดคุก
19 May 2010-- there were scores of Red Shirts arrests accused of Town hall arson. Those arrested were jailed one and a half year already.
15 September 2011—The Truth for Reconciliation Commission of Thailand (TRCT) appointed by the previous government of Mr. Abhisit Vejjajiva, opined that the political conflict in the past was a significant cause of violence and violation of criminal law by various parties. TRCT recommended that those charges, including 112, were to be treated, as ‘political cases’ under special circumstances generally not occurs in the society in a normal condition. TRCT also recommended granting those who were charged to be free on bail, and not to ‘rush’ bringing the cases to the court until the information was complete in every aspect.
20 September 2011—the current Yingluck government appointed a special Coordinating Committee, CCTRCT, to coordinate as well as monitor the implementation of the TRCT’s recommendations.
5 October 2011—CCTRCT had the first meeting. Meeting allowance was ten thousands baht per each member of the committee.
27 October 2011—Mookdaharn provincial court sentenced Red Shirt Mookdaharn to 20-years in prison.
29 October 2011—Udon Thani provincial court sentenced Red Shirt Udon to 22 years and 6 months in prison.
9 November 2011—the Secretary general of the Prime Minister sent a letter to the Deputy Justice Minister requesting the Justice Department to follow through with the TRCT recommendations.
23 November 2011—A Thai court sentenced a man nickname ‘Uncle sms’, to 20 years in prison for sending text message deemed insulting to the monarchy even though TRCT had requested all political cases be delay.
“Today I would like to tell those who did not receive any political positions to be patient. Do not eager to be this-or-that, put aside your want. Today---first, we have to think about ‘how can we help our jailed brothers and sisters’. Second, how can we heal, redress those who injured, die; how about those who were in jail? Third, how can we help people with economic hardship?
Thaksin’s speech during his visit German Red Shirts on 11 August 2011.
Did we pressure the government to accelerate the release of the Red Shirts jailed in the past year and a half? The answer is NO we did not.
The party that would like to see the acceleration of the prisoners was the TRCT which chaired by Professor Kanit na Nakorn. The irony is that the TRCT was appointed by Abhisit Vejjajiva government.
2 months had passed since 15 September, the day in which the TRCT presented the recommendations to the Yingluck government. None of the recommendations bears fruits, it passed in silence.
Did we propose any thing politically that could undermine the stability of this government? The answer is NO we did not.
The TRCT was the one that presented the government with recommendations that would help its stability. The recommendations had no provisions on ‘amnesty’ or pardon’. It took the TRCT more than one and a half year of studying and hearings the 19 May 2010 violence to come up with its recommendations.
Government action became a farce when, instead of implementing the proposal, it came out with ‘pardon plan’ for Thaksin instead. Faced with strong opposition, the government back down.
What is the crux of the TRCT’s proposal? Would the government face the pressure by following the proposal? The answer again is NO
No matter what name calling one would call the Red Shirt prisoners who burnt the houses, shopping malls, town halls etc.; or those charged with 112. In TRCT’s view, regardless of guilt or innocence, they were all ‘political cases’ influenced by political conflicts of the time. These charges should not be allowed to proceed normally like normal criminal cases. The TRCT’s proposal called for all accused be free on bail and cases be delay.
Should the government follow the TRCT’s advice, they would gain more legitimacy because the TRCT was not associated with the current government; in fact, it was appointed by the Abhisit government.
The irony is that while the proposal was put in the ‘back burner’ by Prime Minister Yingluck or Deputy Prime Minister Yongyuth for 2 months, the courts kept on handling sentences to the Red Shirts 10-20 years prison terms as if ‘business as usual’, having flooding problem or not.
Later it was learnt that on 9 November 2011, the Secretary general of the Prime Minister had sent a letter to the Deputy Justice Minister requesting it to follow through with the proposal. Nothing happened, courts continued to hand down harsh sentences 10 years, 10-20 years, and latest a man nickname ‘Uncle sms’ got 20 years.
The government was too ignoring, too laid back. Do you have a heart?
On 15 September 2011, the TRCT sent Yingluck government its second report outlining its work progress and recommendations. The full English report is here.
What follows is an extract of the report:
3. TRCT opines that the political conflict situation during the past time was a significant cause of the violence and the violation of criminal law by various involved parties. The violence and the violation of criminal law in this character are not considered as a behavior which generally occurs in the society in a normal condition without such political conflict because the violation is fundamentally based upon political perspectives.
Hence, even if the illegal behavior, which affects and results in damages to individuals and the public, requires perpetrators to have appropriate legal accountability, in many occasions the criminal responsibility derived from the prosecution and criminal punishment may not solely be in conformity with the punishment philosophy and unable to render justice and solve the conflict problem.
Because perpetrators who have political motivations are different from typical criminal perpetrators who are inherently villains and criminals, the punishment of a violent behavior in this respect could not result in the deterrence of perpetrators themselves and the entire public according to the common philosophy of punishment.
Moreover, the prosecution of criminal cases correlated with the political conflict could encounter the problem from the limitation of the investigation process, the accusation, and the evidence and witness gathering, viewed as being impartial and biased for the advantage of those control the state power in each period.
For this reason, TRCT conceives that the prosecution of criminal cases according to the Royal Decree on Public Administration in Emergency Situation B.E. 2548 (2005), the offence of unlawful assembly of ten or more persons under Section 215 of Criminal Code and other relevant cases during the incidents of political violence before and after the 19 September 2006 coup including the cases concerning the lèse majesté under Section 112 of Penal Code and Computer Related Crime Act B.E. 2550 (2007) are all correlated with the political conflict. The government should thus proceed with the prosecution of such offences as follows:
3.1 Expedite the examination to clarify whether the accusation and the prosecution against accused persons and defendants are consistent with the circumstances of the commission and review whether the accusation is unduly harsh or the evidence is too weak to prove the guilt.
3.2 Proceed in earnest with a temporary release which is a fundamental right of accused persons and defendants in order to enable accused persons and defendants to defend their cases to prove innocence and to reduce effects from the restriction of freedoms on themselves and families.
The relevant authorities, such as investigating officers and prosecutors, should file petitions to the court to provide information relating to accused persons and defendants whether or not there is a reason to abscond, a reason to destroy evidence or a reason to cause harm to the society if a temporary release is granted. If no such reasons exist, the legal principle in protecting the fundamental right to a temporary release of accused persons and defendants should be affirmed.
With regard to the temporary release, although Section 110 of the Criminal Procedure Code does not require a bail, the agencies of justice system have required the bail in practice. This practice has not been in accordance with the legal principle and caused substantial damage to the justice system as it opened channel to a “professional bailer”, which is illegal in the justice system, to grasp a chance to constantly take advantage over the rights and freedoms of individuals.
Likewise, an “insurance company” also takes advantage over the rights and freedoms of individuals. The permission to the “insurance company” to take advantage in this manner originated from the government policy in one era which lacked understanding of the legal principle. However, the solution to a root cause of the problem, which is a correct understanding of the legal principle, cannot be made at this moment because this problem involves the legal education, legal perspectives of those applying the law, and etc.
In the case the court allows the temporary release on bail, it is righteous that the government should provide such bail to all accused persons and defendants who cannot procure the bail according to the past practice. In this respect, it should be aware that the harsh accusation of accused persons and defendants is not a reason for not allowing the temporary release according to the law.
3.3 The accused persons and defendants are not villains or criminals as in a regular criminal case but they are accused of committing the offence for the fundamental reason of achieving political goals. Consequently, provided that the accused persons and defendants are not granted the temporary release, the government should arrange for an appropriate place of detention which is not a common prison to detain accused persons and defendants as used with political prisoners in the past.
3.4 These criminal cases correlates with the ongoing political conflict during the past years as the perpetrators have political motivations and the ongoing conflict problem has an important root cause from the situation of Thai society being in transition. Therefore, the principle of criminal justice which solely uses the criminal prosecution measure for the purpose of punishment to solve the conflict problem is not suitable with the problem situation. It is thus appropriate to study and apply the theories of transitional justice and restorative justice in order to properly apply their principles and methods as well as experiences of foreign countries encountering severe conflicts with the situation in Thailand.
As a consequence, while studying on how to properly apply various measures with the conflict situation in Thailand, there should be a request for the cooperation from prosecutors to delay the prosecution of these criminal cases by not bringing the cases to the court and waiting until the information is complete in every aspect – the correct and reliable information concerning circumstances of the case, the overall information regarding the causes of the problem, the information on academic principles pertaining to legal measures under the framework of transitional justice and restorative justice – to enable prosecutors to have full and complete information for public interest evaluation as well as appropriate criminal measures before ordering the cases.
……………….
In summary, TRCT wanted temporary release of the accused, do not allow sentencing, delays trials due to political cases in nature. However, the fact of the matter was the court still handed down sentencing: some 6 months, some 1-2 years, even 20-30 years prison term in October of this year. The accused in Udon Thani, Ubon Ratchathani, Mookdahan, Maha Sarakham, and 112 were sentenced rapidly one month after the TRCT presented its recommendations to the government.
In the mean time, the CCTRCT, the coordinating committee that supposed to monitor the implementation of the TTRC’s recommendations, met only once on past 5 October. While they were meeting, the sentencing kept coming to the Red Shirts and prisoners of 112, 10 years each, 20-30 years each.
It is the duty and responsibility of the government to see that the Justice Department accelerates the implementation as soon as possible. The TRCT is not associated with the current government, in fact, it is from previous Mr. Abhisit government. Its recommendations will benefit the government supporters who lost their freedom in the fight to bring about this government into being. What is the delay? To solve the flooding problem first? How about Thaksin’s pardon, why Thaksin does not have to wait until water decrease?
So, the ‘big question’ for this government which came from great sacrifice of many of their supporters who lost lives, limbs, and still continue to be ‘iron wall’ for the government, is--- when will you release those on the side that got kill to freedom, and put those that kill in prison.
The old formulaic answer that calls for ‘for reconciliation’ that allows Red Shirts to continue to be in jail, killers allowed to be on the loose, the commanders scot-free awaiting amnesty, and ‘real Commander’ receives ‘worship’ as usual as if nothing had happened, then
The ‘Big question’ remains.
The big question is really this: When will there be justice. If there is no justice, there is no stability. If there is no stability, there is no peace.
So, No Justice, No Peace!
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Note from Thaienews: After we published the Thai version of the “Series of ‘Big Questions for this government”, Thaienews received correction from the Thai government. The government would like to set the record straight that it did not neglect nor ignore the issue. In fact, there was a cabinet meeting to deal with this issue on 25 October, 2011. The meeting came out with a consensus agreeing with the TRCT’s proposal, and had sent letters to government agencies involved.
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Later on 23 November 2011, UDD acting chairwoman Thida Tawornseth met with Justice Minister Pol Gen Pracha Promnok. Both agreed in principle on protecting the rights of the accused. The Rights and Liberties Department of the Justice Minister will request bail for 101 political prisoners next week excluding 112.
The government will also have special jail for political prisoners to separate ‘political prisoners’ from general criminal prisoners. On the issue of delaying the trials and sentencing, there was no consensus.
