Trampling legal rights

27 06 2021

Our readers will know that the royalist courts have, for some time, abandoned most pretenses of so-called blind justice, observing the constitution, or even following the law as it is written. But the (in)justice system extends further than the courts.

A recent statement by Thai Lawyers for Human Rights discusses breaches of confidential attorney-client by the Department of Corrections.no-justice

On 16 June 2021, Parit Chiwarak “raised his concern regarding the practice of eavesdropping on confidential attorney-client conversations in prison and proposed that … [a Parliamentary] Committee launches an inspection on the Department of Corrections’ conduct.”

Immediately, Corrections Department director-general Ayut Sinthoppan responded that:

Section 9(5) of the Rules of the Department of Corrections on Visit, Contact with Prisoners, and Study Visit to or Contact with Prison, B.E. 2561 (2018) clearly prescribes that an external party authorized to visit or contact prisoners must consent to have prison officials listen to their conversations, take photos and audio recordings, cut off communication if the conversation is considered inappropriate.

He added that “if a lawyer wants to keep the conversation with a prisoner confidential, they must inform a prison official.”

TLHR considered this statement as “an admission that the prison has been using its authority under the Department of Corrections’ rules to eavesdrop and record most conversations between attorneys and their clients in prison” and that “confidentiality is only occasionally permitted as a rare exception.”

TLHR observed that this is a serious “violation of the right to access counsel per Article 14 of the International Covenant on Civil and Political Rights (ICCPR),” to which Thailand is a State Party and has obligations to comply with the ICCPR’s provisions. Furthermore, it contradicts Section 7/1(1) of Thailand’s Criminal Procedure Code, which guarantees the rights of the arrested and suspects in detention or imprisonment to meet and consult with their lawyer tête-à-tête.

In addition, Article 61 of the Corrections Act B.E. 2560 (2017) states, “The prison shall arrange a place for prisoners to have a tête-à-tête meeting and consultation with their lawyer or persons to be appointed as their lawyer as specified in the rules of the Department of Corrections.” This provision ensures the right to meet a lawyer confidentially without imposing any restrictions on such a right.

Furthermore, the Rules of the Department of Corrections on Visit, Contact with Prisoners, and Study Visit to or Contact with Prison, B.E. 2561 (2018), which is a subordinate law, provide separate rules for external parties and lawyers. Section 9 in Part 1 allows the Department of Corrections to record the conversations between the external parties and prisoners. In contrast, Part 2 did not grant the same power in the case of attorney-prisoner communications. Section 19 states that the rules in Part 1 could be enforced mutatis mutandis. Nonetheless, it is still illegal to record attorney-prisoner conversations because that rule violates Article 61 of the Corrections Act B.E. 2560 (2017), whose status is higher than the Department of Corrections’ Rules in the legal hierarchy.

“Eavesdropping on attorney-client conversations does not only violate the right to fair trial and Article 61 of the Corrections Act B.E. 2560 (2017). It also seriously jeopardizes the entire justice system. The statement from the Director-General of the Department of Corrections, which cited Rules of the Department of Corrections on Visit, Contact with Prisoners, and Study Visit to or Contact with Prison, B.E. 2561 (2018), is unacceptable. The right to have confidential access to a lawyer is a fundamental principle of criminal law, which could not be precluded as an exception under any Rules. It also should not be the lawyer’s duty to request for the guarantee of this right.

Therefore, TLHR calls for the Minister of Justice, Lawyers Council of Thailand, National Human Rights Commission, and other relevant agencies to investigate this matter and take steps to amend the said Rules because any persons facing a charge must be entitled to their right to consult with their lawyer confidentially. If the justice system could not guarantee this right, such a failure could adversely impact their ability to fight the lawsuit, hindering their full ability to defend themselves in court effectively,” said Yaowalak Anupan, Chief of TLHR.

Thai Lawyers for Human Rights

18 June 2021


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