Originally published on the Facebook page of Poonsuk Poonsukcharoen, lawyer for Amphon (Ah Kong); Republished on Prachatai: สถิตย์ ไพเราะ ความเห็นต่อคดีอากง (ถอดความคำบรรยายเนติบัณฑิตยสภา)
The below is from a lecture given by Professor Satit Phairoh, a former judge, during the 65th session of the Thai Bar Association. A senior colleague sent me a recording of the lecture and I have transcribed it so that other people can read it. Doing this case, I learned a lot of lessons. These included the difficulties with temporary release, detention, the demonstration of evidence, and the admissibility of evidence. I do not want to make excuses for myself as a lawyer, but what I want is for the judicial process to progress in a noble fashion.
The cremation of Ah Kong will be on 26 August at Wat Lad Phrao. All are invited to come bid Ah Kong farewell.
A question was raised about Ah Kong’s case:
Article 39 of the Constitution says that everyone is presumed innocent. It is a general principle that when a person is innocent, bail must be granted. This is simple, there is nothing profound about it. According to this principle, at the time one is charged, the court has not yet delivered a verdict of whether or not the law has been broken, and so bail must be granted. If bail is denied, a rationale for why not must be provided. And, the rationale must be a logical one. When I was assigned to dispose of case dossiers, I encountered illogical rationales. When you dispose of dossiers, you have to read every one of them. I found many quite odd cases. In one case, the defendant was charged with stealing an elephant. The Court ruled that “This is major theft. Bail can’t be granted.” This rationale is not in line with the Criminal Procedure Code. This is not how it is written in the law. In another case, the defendant was accused of stealing a needle and thread. A minor theft from a house. The court ruled that, “Bail is not granted for petty theft.” It is not written in the law that bail is not granted for petty theft. There is no basis for this.
In the case of Ah Kong, on the issue of bail, the court ruled that, “The facts concerning the offence as described in the plaint gravely impact public sentiment and national security.” They wrote in this fashion before there had been any investigation, at all. This indicates that the Court already believed that the accusation was true. If you already believe the charges when you read them, how can you be a judge? You have to listen to evidence before you can write that, “The facts of the alleged offence gravely impact public sentiment and national security.” Having only read the charges, without having heard evidence in the case, how can the judge talk about the impact? You have to investigate first. Making a decision without listening to the evidence is a definitive characteristic of how a judge should not act. No matter how terrible the indictment sounds, it is an allegation only. The facts have not yet shown whether it is true or false.
They guessed further that, “If the examination of evidence results in solid proof, the defendant may flee.” The Court began by surmising that if the proof advanced was solid, then the defendant might flee. And if they surmised incorrectly, then who would be held responsible? Would they be jailed (instead of the defendant)? No. This decision was based on a guess. How do you know if the proof will be solid or not? By guessing. This conjecture had a disastrous effect for their defendant. An order like this is not characteristic of a Court that is supposed to be impartial. The order violated the Constitution. The Constitution is procedural law, if you ask me.
The Court made another incorrect conjecture. Why is this? It is written in the judgment itself that, “Although the plaintiff is unable to present indisputable proof that the defendant is the person who sent the messages as charged.” This indicates that the Court acknowledged that the plaintiff’s adduction of evidence was not indisputable. This indicates that the ruling about bail was incorrect. But the Court committed a double fault by convicting the defendant. If the evidence is not indisputable, how can you convict a defendant? This is a breach to Section 227 of the Criminal Procedure Code which clearly stipulates that in weighing the evidence, the Court must not render a judgment to convict until it is certain that the offence was committed and the defendant was the perpetrator. The word “certain” means indisputable. When you say it is not indisputable, how are you able to render a conviction?
At the end of the judgment, they wrote even more incorrectly: “But it was difficult for the plaintiff to find eyewitness evidence.” Where in the law does it say that if it is difficult, then you can convict on speculation? There is only one principle here: the plaintiff must have evidence that the defendant committed the offence beyond doubt, whether it is eyewitness or circumstantial evidence. It cannot be that there is circumstantial evidence and so you can then convict on speculation. This judgment will eternally stand and cannot be subjected to correction since Ah Kong is dead. This judgment will be eternally criticized because the Appeal Court and the Supreme Court have no chance to amend it. I presume if this case went to a higher court, the higher court would not allow the decision to stand because it was unlawful. This decision contradicts Section 227 completely. It is a contradiction on the order of saying that the sun rises in the west. Jurists must have principles, and must not write arbitrarily. If you are a judge, do not do this. Don’t think you are powerful and can do anything at will. We are not the only ones who read the law. Professor Nidhi Eoseewong has written that the Court acts arbitrarily. He is correct.
-- Professor Satit Phairoh, lecture on criminal law, 65th session of the Thai Bar Association, 8 June 2012.
Translated by Tyrell Haberkorn and Pipob Udomittipong.