Darunee will not get a fair trial

PPT has reported on the lèse majesté charges brought against Darunee Charnchoensilpakul or Da Torpedo since this blog was established. As regular readers will know from our earlier post, her trial is now in a closed court.

In another post we asked: “Where’s Amnesty International in Thailand when they are needed? Off talking with the higher ups? Also behind closed doors?” AI has explained in the past that they prefer to work behind the scenes on lèse majesté in Thailand.

It seems that Darunee’s case and especially the closing of the court, has, at long last, prompted AI to say something about this highly political lèse majesté charge. At Prachatai (27 June 2009: “Amnesty urges Thailand to open lese-majeste trial”) it is reported that “Amnesty International urged Thailand on Friday to open the trial of a political campaigner charged with insulting the monarchy after it was closed for reasons of ‘national security’.”

AI pointed out that the court’s decision to bar the media and public from attending Darunee’s trial “could jeopardize her chances of receiving a fair hearing.” According to Amnesty’s Asia-Pacific director, Sam Zarifi, “When a judge closes the doors on a trial it significantly raises the risk of injustice taking place…”.

PPT points out to Sam and AI that they are wrong. A closed court does not “jeapodize” a fair hearing or “raise the risk” of injustice. It guarantees that there is no chance of a fair hearing. Indeed, no case of lèse majesté will receive a fair trial in Thailand. Darunee knows this and so does anyone who follows these cases.

Apparently, the judge who closed the court had no comment on the AI statement, but claimed: “One thing I can say, I am impartial.” So why did he close the court and claim “national security” issues? Simply because he knows that Darunee cannot get a trial that any impartial observer would consider fair. It is impossible in Thailand.

In a related report at Prachatai (27 June 2009: “Court dismisses Da Torpedo’s request for Constitutional Court ruling on whether a secret trial is unconstitutional”), Daranee’s lawyer requested that the Court trying Darunee seek a Constitutional Court ruling on whether the Court’s decision to hold the trial in secret is constitutional or not, and temporarily suspend the trial until the Constitutional Court gives its ruling.

The lawyer cited Section 29 of the Constitution states: “The restriction of such rights and liberties as recognised by the Constitution shall not be imposed on a person except by virtue of provisions of the law specifically enacted for the purpose determined by this Constitution and to the extent of necessity and provided that it shall not affect the essential substances of such rights and liberties.

The law under paragraph one shall be of general application and shall not be intended to apply to any particular case or person; provided that the provision of the Constitution authorising its enactment shall also be mentioned therein.”

The self-proclaimed impartial judge dismissed the request, saying that the court’s “decision was not contradictory to Section 211 of the Constitution because the defendant had her lawyer to defend her in court and could submit ‘facts, arguments and evidence’ to the court. Therefore, the trial continues.”

The same story indicates that Darunee herself is gagged by the rules of the prison system. She is not permitted to speak to reporters.

In one more report on this political charge and trial, the Ministry of Foreign Affairs has responded to AI’s somewhat tepid statement. At Prachatai (27 June 2009: “Thai MFA comments on Amnesty International’s press release regarding the trial of Darunee Charnchoengsilpakul”), it is stated that in response to a press query regarding AI’s press release on Darunee, Thani Thongphakdi, the Acting Director-General of Information Department and Foreign Ministry Spokesman, said that “the trial on this case like any other cases before the court has been in accordance with the process of law.”

The statement continues: “The defendant is accorded the right to a fair trial, due opportunity to contest the charges, and assistance from her lawyer.” Taking up the same reasoning as the “impartial” judge, the MFA’s spokesman stated that “under Section 177 of the Criminal Procedure Code, the judge has discretion in deciding to hold closed trials in certain cases if they are deemed to involve sensitive matters for the interest of public order, good moral or national security…”. Further, this MFA official claimed that this section of the Code is “consistent with international law (Article 14 of the International Covenant on Civil and Political Rights) and not dissimilar to practice in other countries.”

It is true that this article states: “The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

At the same time, it is incumbent on the court to explain its decision related to the claim of national security. Otherwise the court is acting improperly and can be accused of political bias. The same Article also states: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(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;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

While the MFA spokesman can claim that: “It is … regrettable, indeed unwarranted, that Amnesty International should have raised any question about the integrity and professionalism of the Thai judiciary,” it is clear that Darunee’s rights under this Article of the International Covenant have not and are not being met. The Thai government and its judiciary are selectively quoting and implementing.

This trial will set a precedent for further closed trials and the government led by Abhisit Vejjajiva (who claims to be democratic but provides no evidence for this claim) should be condemned for its continuing abuse of the lèse majesté for political purposes.

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