Recommendations of the Truth for Reconciliation Commission of Thailand (TRCT) towards the policies in bringing reconciliation and solidarity among people in the nation and restoring democracy

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Dear Madame Prime Minister,

Reference is made to the Regulation of the Prime Minister on the Truth for National Reconciliation B.E. 2553 (2010) which established the Truth for Reconciliation Commission of Thailand (TRCT) to investigate and determine the truth and facts, which are the root causes of the conflict problem and violent incidents, to apparently reveal the causes of the problem with the aim of building mutual understanding and providing remedy to affected persons, which will contribute to the prevention of future violence and the promotion of long-term reconciliation of the country. In this regard, the Regulation sets out that the reports and recommendations shall be made to the Cabinet and the public.

As the Prime Minister (Ms. Yingluck Shinawatra) stated the policies to the Parliament on Tuesday, 23 August 2011, TRCT appreciates that the government determined that the creation of reconciliation and solidarity among people in the nation and the restoration of democracy are the urgent policies to be proceeded in the first year, and hopes that the government will fully accommodate and support the independent operation of the TRCT as declared in the policies.

From its past operation, TRCT presented recommendations to the Prime Minister on 2 occasions regarding the use of chains on detainees and the fundamental rights of accused persons in criminal proceedings as well as the 8 recommendations contained in the First Interim Report of the TRCT. TRCT would like to inform that although the mentioned recommendations were presented to the previous government, they were general in their nature and did not specifically address to any government. Thus TRCT requests that the government take the past recommendations of the TRCT into consideration and proceed with the recommendations in a concrete manner in order to continuously create supportive environment for reconciliation of the country. Furthermore, TRCT has the honor to present the recommendations on important issues to the Prime Minister as follows:

1. TRCT is of the opinion that during the time the conflict still exists in Thai society, the government should have a political view to adhere to the rule of law while governing the country by respecting the law and holding the interest of the nation above all. The government shall proceed with the measures to reduce the conflict by examining that officials under the responsibility of the executive branch strictly abide by law; allowing people who experience unfairness to access to justice system; providing legal aid to people and accused persons when needed; and investigating and urging all parties responsible for violent incidents including the government officials to enter into justice system to be equally adjudicated whereby placing importance on human dignity and human rights.

2. While the conflict still exists and the Thai society begins to hope for overcoming the conflict to achieve reconciliation, TRCT would like to request all parties involved in the conflict – the government, those involved in the supervision and control of the use of state power, political parties, political groups, and many agencies – to be highly cautious in committing any act which could affect a supportive atmosphere for reconciliation. In particular, the government whose election victory partially stemmed from the campaign supporting reconciliation should be especially careful by avoiding any act which could provoke the increase of conflict. TRCT is well aware that amid the stream of ongoing conflicts, it is difficult for the government to appear impartial from the viewpoints of all parties. However, the reconciliation of people in the nation could be achieved only if the government which supervises the use of state power has strong determination, tolerance and perseverance to lead the country towards the reconciliation process in earnest.

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.

4. TRCT believes that the reparation and restoration of all parties affected from violent incidents is an important condition for bringing reconciliation in the nation. The state has the responsibility to protect the rights of people and prevent the violence, which affects the rights to life, body, and property of individuals and the society. Hence, when the state fails to prevent violent incidents, the state has the duty to provide the reparation for damages against individuals and restoration of the society. The government should promptly and decisively proceed with the reparation at least by following the guidelines as follows:

4.1 The reparation in this case is different from the reparation in a normal case because it represents the state responsibility for lacking adequate and effective mechanisms to take the political conflict under control and to proceed though peaceful means until the violence causes damages to individuals and the society. Moreover, it represents that the state is aware of and recognizes the pain and loss of all affected parties and will be responsible for such pain and loss in order to enable those affected to live normally. Therefore, the reparation in this case could not depend upon the principles and measures as ordinarily used by the state in the case of disaster victims, or the principles of remuneration paid to injured persons, compensation, expenses in criminal cases, and etc. The government must employ a special measure, which does not adhere to existing rights under the legal framework and practices of agencies and organizations in a normal case, in order for the reparation to result in preventing future violent incidents and bringing reconciliation in the nation.

4.2 The government should urgently and continuously provide reparation to all affected parties. The target group for the reparation should not limit only to those affected from the April - May 2010 incident but should cover those affected from the violent incidents related to the political conflicts from the period prior to the 19 September 2006 coup onward. This should include people, government officials, mass media and private sector as well as families of affected persons. In addition, the scope of the reparation and restoration should be extended to those affected at the level of area, community and society, particularly the residential neighborhoods and commercial areas affected from the demonstrations and violent incidents.

4.3 The government should determine the reparation framework broadly to be consistent with the actual situation of the incidents and to cover various types of loss, physically and mentally, including economic loss and loss of opportunity of affected persons; suffering and pain physically and mentally from the violent incidents; identity loss; loss of career, residence, occupation, opportunity and expected profit; and restoration expenses. The government must be aware that the reparation can be proceeded in various ways, differently and jointly, with no limitation to monetary reparation only. Because each of affected persons and families are affected similarly and differently, the reparation and restoration must be appropriate with each of them in order to ensure effective reparation and contribute to the reconciliation. In this regard, some of those affected need money due to poverty and economic distress; some of them need apology to restore the honor of deceased and injured persons; some need occupation and career opportunities; some need justice by bringing perpetrators to justice system; some need mental reparation, and etc.

4.4 The government should establish an ad hoc committee with a mandate to strenuously provide reparation to all affected parties. The ad hoc committee must be effective in order to serve as a center in coordinating the budgetary aid for the systematic, thorough and continuous reparation.

5. Besides those affected from the violent incidents, the reparation of those who have faced unfair trials, which is a significant target group, is also a condition for bringing reconciliation in the nation. The perception that they are accused of committing offences and prosecuted unfairly by being accused of committing offences which are unduly harsh, the denial of temporary release, and the lack of opportunities to defend their cases have affected them personally and their families in terms of both monetary and mental aspects. These inevitably require urgent reparation. The perception that the justice system fails to render justice but it turns into a mechanism causing injustice is a grave matter. It could lead to the resentment and the lack of faith in the justice system and rapidly becomes an issue for forming an ideological united front with the acrimony against the government. These are a grave danger to the peace and stability of the country. From the above mentioned reasons, TRCT is of the opinion that the reparation for the group of those facing unfair trials because of their demonstrations should be proceeded as follows:

5.1 The guaranty of fundamental rights in the justice system of demonstrators and involved persons who are detained in prisons throughout the country should be expedited. The accusation should be examined to ensure that it is not unduly harsh. The list of detained persons and relevant defendants should be updated to be complete and current. The categorization of detained persons and defendants in various groups should be made again systematically. The reparation of those affected, who are left off from such list or who have not received the reparation, should be provided rapidly.

5.2 The remuneration should be paid to the defendant after there is a final judgment by the court to dismiss the case without taking into consideration whether the court delivers the judgment that the defendant is innocent or not.

5.3 In respect of the defendants against whom the judges deliver final judgments of conviction or denial of release, there should be the support provided to the families of these defendants in humanitarian aspect. After the acquittal, the government should impose the policy in providing support and advice concerning their occupations and careers to reduce acrimony and help restore them back to the society.

6. TRCT is concerned with the situation pertaining to the prosecution of cases concerning the lèse majesté under Section 112 of Criminal Code and Computer Related Crime Act B.E. 2550 (2007), which apparently increase in terms of number of cases, that it could have political impact. TRCT believes that although the government has the obligation to vigorously protect the monarchy highly regarded by Thai people with the utmost reverence from being defamed and violated by inappropriate behaviors and acts, the use of measures of criminal prosecution regardless of the criminal policy and the control guidelines for proper enforcement can implicate complicated effects at both the national level during the political conflict and the international level which places importance on the freedom of expression. At present, the political development and the enforcement of lèse majesté in Thailand phenomenally become the issues of interest for the United Nations, international organizations relating to human rights, and several countries.

Consequently, TRCT conceives the use of lèse majesté during this period is directly related to political conflict inside the country. The appropriate solution of this problem will result in a positive effect to the monarchy and play a significant role in mitigating the conflict of the country to help achieve reconciliation. In this respect, TRCT is of the opinion that it should be proceeded as follows:

6.1 In this sensitive situation, TRCT opines that the government must proceed in every way by taking cognizance of the final goal, which is the protection and respectfulness of the monarchy to maintain its status with the most exalted honor. The government should strictly and stringently proceed against those who defame and violate with malice against the monarchy but should not excessively impose criminal measures without direction and regard to the sensitivity of the case, which could subsequently affect the monarchy domestically and internationally.

6.2 All parties involved in the conflict must proceed in every way to express their reverence to hold the monarchy above political conflict and stop referring to the monarchy for political advantage either directly or indirectly. A pertinent solution of the problem at its root cause could be done by the serious discussion among relevant politicians, political parties, and political groups to determine appropriate measures which will result in holding the revered monarchy above political conflict.

6.3 The government should provide for the unity and integration of agencies involving the enforcement of law concerning lèse majesté cases. They should have a mechanism with a capability to determine appropriate criminal policy and to categorize the cases by considering the degree of the behavior, intention, motivation for the commission, status of the perpetrator, and overall context of the situation leading to the commission.

The actual problem situation in the Thai society in the present time should be taken into consideration that the political conflict like this has never happened before as there is an attempt to take the unfaithfulness against the monarchy as a political issue. All parties must essentially take into account the highest advantage from presenting the utmost honor to the monarchy.

6.4 With regard to the prosecution of lèse majesté cases, the prosecutor, who has an important role in using discretion whether to prosecute or not, should put emphasis on a means for ordering cases by using discretion (Opportunity Principle), which is a universal power of the prosecutor. Although there is adequate evidence for prosecution order, the prosecutor must place importance on weighing the advantages and disadvantages of the prosecution, taking into account the public interest in essence. In this case, the issue the prosecutor must consider is which way between to order prosecution and not to order prosecution is highly beneficial for protecting and presenting the honor appropriately to the monarchy. This means is used in the countries which have the monarchy such as the Netherlands.

6.5 The government should arrange for the temporary release of accused persons and defendants in lèse majesté cases since the severe accusation is not a legal reason for denying the right to temporary release of accused persons and defendants, which is the fundamental right under the law. This could be seen in the case that the court has granted the temporary release in other cases which have a higher scale of punishment than the lèse majesté case such as a charge of murder, which the court has usually granted the temporary release, which is a fundamental right.

6.6 The government should consider reviewing the prosecution of cases which expand the issue of lèse majesté law to a large extent during the political conflict such as the accusation and the propaganda on the conspiracy to “overthrow the monarchy”. In this respect, the interpretation of the law might be too broad to affect the reconciliation in the nation and adversely affect the protection of the monarchy. The further prosecution must be undertaken by considering the explicit evidence regarding specific individual behaviors to prove guilt in accordance with the rule of law.

7. TRCT requests all parties be aware that the ongoing conflict problem has been gradually aggravated to become a fractured disunity in Thai society that only one of the organizations cannot solve the problem alone. All parties involved in the conflict – the government sector, civil society sector, business sector, and mass media, as well as people – have a significant role in leading the country towards the reconciliation. The government should facilitate the arrangement for the exchange forum to enable all parties in Thai society to understand the cause of the conflict problem, which is a phenomenon in every society during a major transition. In this regard, the government should vigorously support the knowledge dissemination and the participation in exchanging opinions through various media for a mutual understanding of the society to get over the conflict. The understanding on the root cause of the problem and the pursuit for the correct way to overcome the conflict together is the creation of important knowledge asset, which could lead Thai society to the strong and sustainable democratic society.

For your kind consideration.

Yours sincerely,

Kanit Nanakorn
(Prof. Kanit Nanakorn)
Chairman Truth for Reconciliation Commission of Thailand