The politics of bail in lèse-majesté cases

Authorities withhold bail from lèse-majesté suspects to force false confessions and promote fear, a renowned law expert has argued. In Thailand, the right to bail has been transformed into a tool of intimidation.

Since Thailand’s 2014 coup, the country’s judicial system has been viewed with increasing distrust. Courts treat individuals charged with violating Article 112 of the Criminal Code — the lèse-majesté law — particularly harshly, with few suspects ever granted bail. Low bail rates force lèse-majesté suspects to languish in prison throughout the lengthy trial process, which takes anywhere from months to years.

Sawatree Suksri, an academic from Thammasat University’s Faculty of Law, argues that it is usually illegal under both international and domestic law for authorities to reject bail requests from lèse-majesté defendants. Her opinion was transcribed from a talk “The Right to Bail in 112 Cases” given at the recent workshop “Judging the Courts’ convened by the Thai Academic Network for Civil Rights.

Lèse-majesté — really worse than murder?

Article 9(3) of the International Covenant on Civil and Political Rights allows for the temporary release of suspects, provided they appear in court as required and volunteer themselves if found guilty.

All imprisoned persons are entitled to consideration for bail, under Article 38 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Under the Thai constitutions of 1997 and 2007, people were also guaranteed the presumption of innocence until proven guilty. The principle is further confirmed in the country’s Criminal Procedure Code.

You might be wondering why I’m listing these laws, when they are rarely enforced in practice. Why haven’t Jatupat ‘Pai’ Daodin or Somyot Prueksakasemsuk received bail, when Thailand is party to these laws?  The majority of 112 prisoners are made to fight their case behind bars.

One goal of bail is to allow defendants to fight their case fairly. Bail allows defendants to seek and develop evidence for their case more freely, and to consult with their lawyer privately. If bail assists defendants to seek justice to the best of their ability, bail rejections should be an exception rather than the rule.

Under Thailand’s Criminal Code, exceptions to laws must be interpreted strictly. Section 108/1 of the Criminal Procedure Code allows for the rejection of bail applications only for two ends: first, to guarantee the presence of the suspect throughout the trial and second, to prevent influential suspects from disturbing evidence. If these two goals are not threatened by the release of a suspect, they are entitled to bail.

Yet in 112 cases, courts frequently reject bail applications on the grounds that the punishment for lèse-majesté is high, which may cause bail recipients to flee. But how can it make sense for the punishment for lèse-majesté to constitute the main and most common reason for the rejection of 112 bail applicants?

Let’s look at Section 108 of the Criminal Code, which concerns determining bail requests. Courts must take into account the following factors:

  1. The heaviness of the charge
  2. How much evidence has been presented already
  3. Various conditions surrounding the case
  4. The credibility of the bail requester and the surety
  5. The chances the suspect will flee
  6. The dangers and damages that may arise
  7. In cases where the suspect is imprisoned under a court warrant, the court should take into account objections to the bail request from investigators, prosecutors and injured parties

When courts reject bail requests in 112 cases, they tend to selectively cite the first and fifth factors to argue that the chances of fleeing are high when a crime’s penalty is high. But such reasoning is without basis. Section 108 assembles the many complex factors that must be weighed up when deciding a bail request. It is not a law that should sustain consistent rejections of bail.

The crime of murder can result in a lifetime jail sentence, or in other words a high penalty. Why do we not see the same consistency in bail rejections?

The punishment for lèse-majesté — three to fifteen years in jail — is truly high, even out of proportion. Rape offenders face four to twenty years in jail, or a lifetime sentence or the death penalty if they cause the victim’s death. Yet we still see cases where courts release rape suspects to fight their case. Why do courts hardly ever grant bail for lèse-majesté suspects? The punishment they face is high, but no higher than those for other crimes.

Withholding bail for an ‘insufficient fear of law’

We also constantly hear courts reason that lèse-majesté disturbs the hearts and minds of the people, since it violates good morals. Yet other crimes surely disturb the hearts and minds and the good morality of people too. More importantly, no law describes ‘disturbing the morality of the people’ as a valid reason for rejecting bail. Yet judges continue to force 112 suspects to fight their charges from jail, even when a guilty verdict has yet to be reached.

We see such misuse of legal power again and against when courts deal with lèse-majesté cases. Part of the court’s reasoning behind its rescinding of Jatupat ‘Pai’ Boonpattararaksa’s was that the activist’s mockery of Thai authorities on social media showed an insufficient fear of law. Moreover, past behaviour suggested he may be prone to such rebellion again.

Was this ruling straight-forward, or another distortion of law? We must look at the conditions under which courts withdrawal previously granted bail. Courts can withdrawal bail when the suspect violates the conditions of the bail. This means that bail granted must prescribe conditions in the first place.

The issue is then what conditions courts can reasonably define. According to law, specifically the Code of Conducts for Judicial Public Officers, courts are limited to setting the following conditions for bail:

  1. The whereabouts of the suspect (for example, residential confinement)
  2. Conditions to prevent bail jumping
  3. Conditions to prevent dangers or damages that may result from the granting of bail

Importantly, whatever conditions judges prescribe, they must take into account the specific conditions of the lawsuit and the suspect.

It is clear that laws relating to the withholding of bail are concerned once again only with the prevention of bail jumping and tampering with evidence. The question then is what Pai’s mocking of the Thai government has to do with these risks. The answer is that there is no connection. When we look directly at laws related to the withdrawal of bail, it is clear the court’s treatment of Pai was a distortion of law.

Pai’s court verdict explained further that the activist had not deleted the offending Facebook status, and that his continued voicing of opinion on social media could constitute interference with witnesses or evidence. The issue, however, is that the courts did not set deleting the offending Facebook status as a condition for bail. The actual requirements for bail were that Pai would go to all court appointments, avoid drugs and avoid tampering with evidence. The condition was not there to violate in the first place.

If the rescinding of Pai’s bail has no legal basis, how did the courts get away with such discretion? Why do they choose to override the laws they know well? These questions are key to understanding why 112 suspects never, or at least rarely, are granted bail. But they cannot be answered by the law alone, since by law such rulings should not occur. We must instead look at the ideology, culture and politics that lie behind the courts, and ask whether Thailand’s judicial system — especially 112 cases — are a tool of the government for building fear.

Thailand’s judicial system: a tool to create fear

Since the coup of 2006, Thailand’s judicial system has been marked by coercion. Suspects are pushed into corners, and made to choose between confession and fighting a (biased) case.

In other criminal cases, defendants may have confidence in pleading their case, and will place faith in the evidence to speak truth. But this is not the case with Article 112 cases. Even if defendants are sure they are not guilty, they are unlikely to evaluate fighting the charge as worth it.

The percentage of 112 suspects who confess is extremely high. One exception is Somyot Prueksakasemsuk, who chose to appeal all the way to the Supreme Court, claiming his innocence until the end. This is not to condemn those who confess to lèse-majesté. We do not know the pain of facing a coercive justice system, and what you would sacrifice along the way.

The end goal of Thailand’s coercive judicial system is ultimately to maintain the political equilibrium desired by those in power. One part of this is maintain the sacredness of certain institutions. Pai Daodin’s prosecution has expanded the space of the taboo and untouchable. Now we cannot speak about the government, government officials. This is how the judicial system builds fear.

Targeted prosecution is an effective state technique for maintaining fear that does not require many resources. We should not be surprised that Pai alone was prosecuted, when thousands of others shared the BBC article. He was targeted because he resists state power. By singling out Pai as an example, the junta did not have to expend many resources or much man power, or even much jail space. But cyber activists nevertheless ceased sharing and liking the article. Through the judicial system, the government can build fear without losing much.

Under Thailand’s military government, the right to bail has been distorted into a tool for intimidation. But the abuse of the judicial system for power has its costs. Distortion reflects poorly on the judicial system, the courts, the judges and its institutions. The people see when laws are not used as they should be. The price the government pays is the people losing faith.

As time passes, Thailand’s people make their own rulings on Thailand’s judicial system, and the political institutions that lie behind it.