เจ้าหน้าที่รัฐทุกภาคส่วนทั้งเจ้าหน้าที่ทหาร เจ้าหน้าที่ตำรวจและฝ่ายปกครองเคารพต่อพันธกรณีด้านสิทธิมนุษยชนที่ประเทศไทยเป็นภาคีและมีพันธกรณีที่ต้องปฏิบัติตาม บังคับใช้กฎหมายให้สอดคล้องกับเจตนารมณ์และมุ่งคุ้มครองสิทธิอันชอบธรรมของประชาชน และยุติการใช้อำนาจโดยมิชอบคุกคาม กิจกรรม “เดินเพื่อสิทธิ ชีวิตคนอีสาน” หรือ Walk for Rights ของกลุ่มขบวนการอีสานใหม่ในทันที
ตลอดระยะเวลา 8 วันนั้น สราวุธกลายเป็นบุคคลที่ถูกบังคับให้สูญหาย หรือ “อุ้มหาย” ซึ่งเป็นการริดรอนสิทธิเสรีภาพของบุคคล ตามมาด้วยการปกปิดสถานที่ควบคุมตัว และปฏิเสธจะทราบชะตากรรมโดยเจ้าหน้าที่รัฐ ทำให้บุคคลอยู่ภายนอกการคุ้มครองของกฎหมายอันเป็นการละเมิดต่อพันธกรณีอนุสัญญาระหว่างประเทศว่าด้วยการคุ้มครองบุคคลทุกคนจากการหายสาบสูญ โดยถูกบังคับ (International Convention for the Protection of All Persons from Enforced Disappearance: CED)
Not long after the second round of the Universal Periodic Review (UPR) of Thailand on 11 May 2016 ended, several questions from member states concerning human rights situations in Thailand, including the military jurisdiction, the enforced disappearance, and the restriction of freedom of expression have resulted in the National Council for Peace and Order (NCPO)’s attempt to appear as more alleviate on people’s exercise of rights and freedoms. The Head of NCPO Order no. 25/2016 regarding the revocation of the overseas travel ban on individuals, announced in the Royal Gazette on 31 May 2016 and became effective on 1 June 2016, is the latest move.
However, the Thai Lawyers for Human Rights (TLHR) has found that, although the Head of NCPO Order no. 25/2016 regarding the revocation of overseas travel ban on individuals may appear to present an ease on government’s restriction of rights and freedoms, it benefits only a limited number of persons, and may even impose additional restriction as following;
People directly benefit from the Head of NCPO Order no. 25/2016
The Head of NCPO Order no. 25/2016 revokes the Announcement of NCPO no. 21/2014, the announcement that prohibited individuals who reported themselves to military as summoned by the NCPO Orders no. 1/2014, 2/2014 and 3/2014 from travelling out of the country, 155 names on the lists. The three Orders were issued before the Announcement of NCPO no. 39/2014 about conditions of release of individuals summoned by the NCPO, announced on 25 May 2014. Therefore, the persons listed in the three Orders were not bound by the conditions in the annex to the Announcement no. 21/2014 which bans overseas travel.
The TLHR has a remark that the persons who were summoned by the NCPO Orders after 25 May 2014, at least 300 names on the lists, do not benefit from the Head of NCPO Order no. 25/2016, because those who reported themselves to the NCPO had to sign a document which contain the conditions of release in the annex of the Announcement no. 39/2014. In addition, some people included in the list of 155 names, mostly politicians, will not benefit from the revocation of the Announcement no. 21/2014 as they have pending lawsuits or have been summoned by military more than once, such as Mr. Pichai Naripthapan, Mr. Chaturon Chaisang, or Mr. Watana Muangsook
People who seemed to benefit from the Order, but in fact do not
The Order no. 25/2016 stipulates that any person who defies or fails to comply with the Announcement of NCPO no. 39/2014, 40/2014, 41/2014, and the Head of NCPO Order no. 3/2015 must seek permission from the Head of NCPO when they are to travel overseas. On the other hand, this means that a person who do not defy the Announcements and Orders can leave the country without permission from the Head of NCPO.
In fact, a person who has never defied the Announcements and Orders but has signed the conditions upon release, which prohibits travelling abroad without the Head of NCPO’s permission, will not be affected by the Order no. 25/2016. They are still bound by the conditions and are obliged to seek permission to leave the country.
People who do not benefit and may be disadvantaged
Apart from not benefitting people under the restriction according to the Announcements of NCPO no. 39/2014, 40/2014, 41/2014 and the Head of NCPO Order no. 3/2015, by stating that “any person who defies or fails to comply with the aforementioned Announcements and Order must be granted permission from the Head of the National Council for Peace and Order before travelling out of the Kingdom” could be interpreted that any person who did not sign the release conditions but has defied the Announcements or the Orders may have to seek permission as well. For instance, people who participated in a political gathering of more than 5 people, but did not sign the release conditions that prohibit leaving the Kingdom under the Head of NCPO Order no. 3/2015, may be considered to have to seek prior permission under this new Order, even though they were not bound to the said conditions.
The Thai Lawyers for Human Rights considers that the Head of NCPO Order no. 25/2016 is an attempt to put on an act than the NCPO has loosened its strict stance on rights and freedoms, but does not evoke any difference in practice due to the limited number of benefited people and other conditions, Announcements, and Orders that remain effective in overseas travel bans. In addition, citizens could be at risk of the sweeping law enforcement by the NCPO because of word choice in the Order that can be broadly interpreted.
The second cycle of the Universal Periodical Review (UPR) of Thailand was held on 11 May 2016 in Geneva, Switzerland. Many UN member states raised concerns and questions about the use of military courts to try civilians. To respond to the queries from other member states, a team of representatives from the Government of Thailand attended the session, including Lt. Col. Seni Bhromvivat, the Head of the Military Legislation Section of the Judge Advocate General’s Department from the Ministry of Defense.
Lt. Col. Seni Bhromvivat, as a representative of the Government of Thailand, explained to the Human Rights Council that the application of military jurisdiction to civilian cases is limited to specific and severe offences. The defendants in the military courts have the same rights as those in civilian courts as the military courts operate under the Criminal Procedure Code which guarantees the right to a fair trial and other rights of defendants in line with international obligations. The military judges are required to have legal knowledge and proficiency in criminal law, similar to judges in the civilian court system.
Lt. Col. Seni further explained that military judiciary guarantees the right to a fair and public hearing by an independent judiciary. The defendant has the right to legal assistance and the right to bail, and receives consideration for temporary release, the same as within the civilian judiciary. The military trials also are open for public observation, including civil society and human rights organizations in addition to defendants’ families.
However, after extended observation of trials of civilians in military courts, Thai Lawyers for Human Rights (TLHR) has found that the representative’s explanation to the international community is inconsistent with the actual situation. Military trials are explicitly and considerably differ from civilian trials in many ways, all of which affect access to rights during the judicial proceedings and result in violations of the rights of civilian alleged offenders and defendants.
A large numbers of the political cases tried in the military courts are not serious crimes. In a normal society, many of the actions for which people have been charged and prosecuted under the jurisdiction of the military court are not considered crimes. Instead, these are actions related to the exercise of the rights to freedom of expression and freedom of peaceful assembly, such as eating out at McDonalds’ as an action to express dissent against the coup d’état, not reporting as summoned by the orders of the National Council for Peace and Order (NCPO), organizing a commemorative activity on the anniversary of a past election, walking from home to the military court alone, riding a train to investigate alleged corruption at the military-built Rajabhakti Park, mocking the head of the junta, holding a press release insisting that ‘Universities are not military camps’, and taking photos with a red water bowl, to name a few.
Many weapons cases are not related to politics and are not serious offences. TLHR has found that the defendants in many weapons cases tried in the military courts are villagers or people of ethnic groups arrested for possessing unregistered cap guns or for not handing over the firearms to the authorities as ordered by an NCPO announcement. The alleged offenders usually use the guns for hunting or taking care of their plantations. Some possessed only one gun or antique firearms with no registration. Many alleged offenders are not involved with politics or violence in any way.
The military judges lack independence and impartiality. The military judiciary is subordinate to the Ministry of Defense and the Defense Minister and the Commander of the Royal Thai Army is authorized to appoint military judges. This places the military judges under military command, which is different from the judicial system. TLHR has also found that in some trials, the military tribunal made a phone call to their superiors within the chain of command prior to delivering the outcome of a discretionary decision to a defendant, which demonstrates the lack of independence present in adjudication.
Not all military judges are proficient in law. In the military courts, of the three adjudicators on a panel of judges, only a judge advocate general is required to be a commissioned officer with a degree in law. The rest of the adjudicators are commissioned officers appointed by commanders in each military court’s jurisdiction and are not required to possess a law degree.
The military courts do not have sufficient personnel for the caseload. Each month, around 30 military judge advocate generals will move from court to court within the 29 operating military circle courts. Most courts have a stationed military prosecutor and 2-3 court officials who also have to perform as court clerks during the proceedings. The limitation of the military court staff to handle thousands of civilian cases has resulted in delayed prosecutions.
International observers cannot attend hearings in provincial military courts. Military bases, where the provincial military courts are located, are designated as zones of national security and confidential state affairs. Therefore, foreigners, including staff from international organizations and embassies, are not allowed to enter the bases.
Before martial law was lifted, the cases tried in military courts could not be appealed. Defendants in any case tried in the military courts during the period of 25 May 2014 – 1 April 2015 while the martial law was imposed were not entitled to appeal the court’s conviction or any decision to higher courts. This was true even in those cases with heavy penalties such as the death penalty. This is in conflict with the principle of the rule of law and denied the defendant’s right to appeal to a higher court to review the lower court’s judgment and impeded their access to the right to a fair trial.
The military courts do not offer lawyers. In civilian courts, a defendant who does not have a lawyer and requests to have one can be appointed a state-provided lawyer. These lawyers are usually stationed at the courts and are provided at no charge to the defendants. The military courts, however, do not have a mechanism to guarantee the defendant’s access to legal assistance. The military courts did not provide lawyers for many defendants in need of lawyers in weapons cases. In other cases, the court officials sometimes contacted a lawyer to assist in cases, but erratically.
The military court proceedings are extremely delayed. The military courts usually hold evidence hearings every two or three months. Each hearing begins in the morning and ends before noon. This schedule makes it possible to hear evidence from only one or two witnesses per round, or in situations in which a witness has very detailed evidence to present, it may take several rounds. Adjournment is also not uncommon. The taking of evidence in the military courts is therefore much more delayed and sporadic in comparison to the civilian courts that usually hold consecutive hearing dates which makes the proceedings swifter than in the military courts.
The delays in military court proceedings forces some defendants to plead guilty, especially those whose request for temporary release is denied. They face a lengthy period of pre-trial detention and there many decided to plead guilty as charged in order to receive a reduced sentence. It is apparent that the delays gravely affect the defendant’s right to fair proceedings.
The military courts generally hand down heavier penalties than civilian courts. For example, lèse majesté cases now have a new rate of penalty of 8-10 years of imprisonment per count, while the same offence in the civilian courts previously resulted in 5 years per count on average. As a result, many cases with several counts of violation have set new records for severe sentences. In another example, the offence of defying an NCPO order was punished by a military court with a 10,000 baht fine, reduced by half to 5,000 baht as the defendant pled guilty. The same offence in a civilian court was punished with a 500 baht fine.
The military courts do not carry out a pre-sentence investigation. The civilian courts can issue an order to investigate a defendant and make a report of the facts, background, behavior, and life of the defendant to inform the court’s discretion in making sentencing decisions. The military courts, however, claim that they cannot order the Department of Probation, which is under the Ministry of Justice, to carry out such an investigation. Lots of facts about the defendants, such as a defendant’s mental illness, are not taken into account by the military court when they make decisions about punishment.
The military courts do not allow lawyers to copy the records of some proceedings. In some cases, the judge advocate general stated that as the record of the proceedings has been read in the courtroom, a copy is not necessary. This differs from the civilian courts in which litigants can access and copy the records of proceedings.
Restrictions on bail surety are more stringent than in civilian courts and standard criteria regarding bail amounts do not exist. The military courts do not accept an individual or the civil service status of an individual as a surety for bail and do not accept payment by a bail bond. The civilian courts allow a greater range of categories of bail payment and guarantors.
The military court clerks still manually write or type the court’s record of proceedings. Unlike the civilian courts, which use voice-recording devices, the manual method in the military courts causes discontinuity and delay as the proceedings must occasionally stop and wait for the clerk.
The suspects or defendants are taken to prison while waiting for the result of the request for temporary release. Both female and male suspects and defendants have been subjected to violations while being strip searched before entering the prison. The civilian courts detain the suspects or defendants in a detention room at the court while waiting for the result of the request for temporary release. If the courts grant temporary release, the suspects or defendants are released from the courts directly and do not have to go through the procedures to enter and leave the prison.
พลันที่ความเห็นของนานาประเทศจากการทบทวนรายงานสถานการณ์สิทธิมนุษยชนของประเทศไทยตามกลไก Universal Periodic Review ของสหประชาชาติ เมื่อวันที่ 11 พ.ค.59 ที่กรุงเจนีวา ประเทศสวิตเซอร์แลนด์จบลง เสียงเรียกร้องของประเทศต่างๆ ที่มีคำถามถึงสถานการณ์ละเมิดสิทธิมนุษยชนในไทย ทั้งการพิจารณาคดีพลเรือนในศาลทหาร การบังคับบุคคลสูญหาย การจำกัดเสรีภาพบุคคลในการแสดงออก และอีกหลายประเด็นทำให้ภายหลังห้วงเวลาดังกล่าวคสช.หรือรัฐบาลพยายามแสดงท่าทีในการผ่อนปรนในการใช้สิทธิเสรีภาพของประชาชนมากขึ้น รวมถึงล่าสุดในการออก
THAI LAWYERS FOR HUMAN RIGHTS 