Asian Legal Resource Centre, Hong Kong
Witnesses are very important to any criminal justice system. A lot of weight is placed on witness testimonies, particularly in Asian jurisdictions. In many cases, conviction or non-conviction depends upon the testimony of a single witness, who is also sometimes the victim. Where that testimony is wanting, the case collapses. Where that testimony is wanting because the witness has been threatened, or even killed, the perpetrators are ridiculing the court. Where the perpetrators are state officers, the entire justice system is put at risk.
In romantic notions, the world is divided between good guys and bad guys. The underworld is responsible for crimes, and the police are responsible for fighting back. A black world of criminals is pitted against a white force of heroes. This notion of crime, found mostly in popular newspapers and films, does not exist in reality. In most parts of Asia it is the nexus between police officers and criminals that is the primary cause of crime. This nexus consists of both simple and complex exchanges. Bribes are taken to permit an illegal bar, brothel or gambling den to operate. Agreements are made so that certain crimes are not investigated, or are investigated badly. Logistics are arranged for the movement of drugs and people across borders. Criminals and police officers work together to abduct and kill people. Without this nexus, many crimes could not be committed, or if committed, they would soon be exposed. With this nexus, most crimes are readily committed, and are all but impossible to expose. Any real-world discussion on crime, human rights abuse and impunity must start with this nexus.
To talk about witness protection also is essentially to talk about this nexus. It means protection both from criminals and police. Any accused is keen to prevent witness testimonies that may lead to a conviction. Where the accused is a police officer or other official then the opportunities to identify, locate, threaten and coerce witnesses, as well as to manipulate investigation, prosecution and judicial procedures, are far more than those available to an ordinary accused. For instance, a police torture victim must complain at a police station. Perhaps it will be the same station where the torture occurred. The police officers on duty may threaten the person against making a complaint, or record the complaint only partially, or incorrectly. After a few days, a senior officer, a group of officers, or a criminal ally may visit the victim. They may warn the victim against proceeding with the complaint. They will also offer some money. The victim will be fearful of the police and their allies, and perhaps in need of money. Without advice and support, the victim may take the money and withdraw the complaint. Without the complainant, the public prosecutor will close the case “for lack of evidence”. The accused will never even appear before a court, and criminal justice will be totally defeated. Where this pattern is followed repeatedly, the entire system is eroded.
Witnesses and victims of human rights abuses need to be reassured that they and their families will not face reprisals before, during and after trial. Without this much, they will not cooperate. If they do not cooperate, a trial is made into a travesty. If large numbers of people do not cooperate, there is no administration of justice. Therefore, a sophisticated, highly-publicised and well-resourced scheme to protect witnesses and their families is a must.
A glance at some countries in Asia shows that widespread extrajudicial killings, abductions and other gross abuses of human rights are directly linked to the absence of the rule of law and corresponding lack of effective witness protection:
1. Philippines: Republic Act 6981 guarantees that witnesses will be given the necessary protection, security and benefits by the Department of Justice. This law is held up by some people abroad as a model for witness protection in Asia. But for people in the Philippines it is all but meaningless. Human rights defenders, peasant leaders and journalists are among those gunned down there every week. The perpetrators have no fear of getting caught: victims’ families refuse to press complaints and witnesses flee out of fear. One case after another is closed because “no witnesses have come out in the open for fear of reprisal”. Even where people are shot dead in the middle of crowded markets or before their wives and children at home, the police disingenuously claim that they have been unable to locate witnesses or secure their cooperation. And the fear of witnesses is well-founded: those who do somehow come forward are also routinely killed. Despite the scale and brutality of the killings in the Philippines, there is no evidence of any serious steps by the authorities to address them through a functioning witness protection scheme.
2. Indonesia: A long-awaited Witness and Victim Protection Bill is still in draft. Apart from measures to give assistance to witnesses and victims, the draft imposes serious penalties on persons who attempt to stop witnesses from appearing court, or inform others of their whereabouts and identities. However, even before the bill has been completed the chairman of the drafting committee has proposed that the witness protection agency be under the police, rather than properly independent. Unfortunately, placing the task of witness protection in the hands of the police completely defeats its purpose, as this study discusses in detail with reference to Thailand. Meanwhile, the Indonesian security forces and paramilitary groups continue to operate with gross impunity right across the archipelago, and human rights defenders and victims face serious and systematic threats on their lives, as well as those of their colleagues and families.
3. India: There is no national-level scheme or guidelines for witness protection, and some states have no laws to protect witnesses and victims. The trials of persons accused of mass killings in Gujarat during 2002 descended into farce after witnesses constantly changed their testimonies due to a systemic campaign of intimidation by the state authorities and powerful nationalist groups, coupled with a lack of witness protection. In most parts of the country, witnesses brought to court in cases against rich and powerful people turn hostile, making a mockery of the law and India’s pretensions to human rights and democracy. The police in many areas work together with corrupted judicial officers and criminals to intimidate and murder with impunity, through use of “crossfire” encounter killings and mob attacks on persons and property. The country’s enormous bureaucracy remains largely inert and complicit, and countless judicial reform committees and commissions have paid virtually no attention to witness protection.
4. Sri Lanka: There is no witness protection programme of any sort. The exceptional collapse of the rule of law there, and very strong nexus between the police, politicians and criminals, together render the state incapable of protecting witnesses and victims of crime, even if it had the will to do so. Citizens’ groups have instead organised their own programmes, with great difficulty, to relocate and hide victims of police torture and other abuses. Nonetheless, Sri Lankans who have dared to speak out and press complaints against state officers have lost their lives as a consequence.
Thailand is among those countries in Asia where the power of the police and other parts of the executive is very deeply entrenched, and where ordinary people fear and resent law enforcement officers who have it within their power to make life hell. The problems of modern policing in Thailand have been an open topic of discussion since the late 1970s. Government agencies have themselves long acknowledged that “the police department is hated and despised by all people outside of it” (quote attributed to the parliamentary Administrative Committee, 10 January 1980; cited in Corruption & democracy in Thailand, by Pasuk Phongpaichit & Sungsidh Piriyarangsan, Silkworm Books, Chiang Mai, 1994, p. 119). However, the police force has successfully resisted attempts at reform.
The police in Thailand are associated with routine physical abuse and humiliation. Accounts of gross human rights violations are widespread, particularly in parts of the country where ordinary restrictions are relaxed. Reports by human rights defenders, the media and other concerned agencies and persons routinely link the Thai police to killings, abductions, torture, and intimidation of suspects, witnesses and other persons, or the aiding and abetting of such acts. Yet discussions about the reasons for this situation, and possible solutions, remain limited.
Most victims of police abuses in Thailand are unable to complain or obtain any sort of redress. Impunity is rooted in the country’s administrative system, which despite a modern exterior continues to function on ancient principles of patronage. There are few laws to permit complaint and no effective avenues to enable these. Victims have little incentive to overcome their fear and lodge complaints as they do not believe that these will lead to any legitimate action against the perpetrators of abuse, and they lack reassurances that they will not face reprisals from the accused. Nobody seriously expects the legal system to punish a police officer for wrongdoing. Victims of abuse who do complain, or are in a position to complain, are threatened and coerced by the perpetrators or their associates. Senior officers defend subordinates accused of gross violence, including committing extrajudicial killings, abductions and torture. They also give in-principle support to such actions.
It is for these reasons that Thailand needs an effective witness protection programme working independently of the police.
Protecting witnesses: An article 2 obligation
The International Covenant on Civil and Political Rights, to which Thailand is a party, contains certain obligations that can only be realised where the state has in place an effective witness protection programme. These include the right to life (article 6), freedom from torture and cruel, inhuman or degrading treatment or punishment (article 7), right to security of person (article 9) and freedom of movement (article 12). Most importantly, article 2 requires states “to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant”. In this respect, it requires each party to the treaty to ensure that
(a) Any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) Any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) The competent authorities shall enforce such remedies when granted.
Implementation of the rights guaranteed under international law requires effective legislation and competent authorities. In terms of witness protection, that means a comprehensive law to protect witnesses and a functioning agency to ensure that the law is enforced.
In its concluding observations on Thailand’s compliance with the Covenant in 2005 (CCPR/CO/84/THA, 28 July 2005), the UN Human Rights Committee identified a number of areas of particular concern that relate specifically to witness protection:
The Committee is concerned at the persistent allegations of serious human rights violations, including widespread instances of extra-judicial killings and ill-treatment by the police and members of armed forces, illustrated by incidents such as the Tak Bai incident in October 2004, the Krue Se Mosque incident on 28 April 2004 and the extraordinarily large number of killings during the “War on Drugs” which began in February 2003. Human rights defenders, community leaders, demonstrators and other members of civil society continue to be targets of such actions, and any investigations have generally failed to lead to prosecutions and sentences commensurate with the gravity of the crimes committed, creating a “culture of impunity”. The Committee further notes with concern that this situation reflects a lack of effective remedies available to victims of human rights violations, which is incompatible with article 2, paragraph 3 of the Covenant (arts. 2, 6, 7). The State party [Thailand] should conduct full and impartial investigations into these and such other events and should, depending on the findings of the investigations, institute proceedings against the perpetrators. The State party should also ensure that victims and their families, including the relatives of missing and disappeared persons, receive adequate redress… The State party should actively pursue the idea of instituting an independent civilian body to investigate complaints filed against law enforcement officials. [Paragraph 10]
The Committee is concerned about the persistent allegations of excessive use of force by law enforcement officials, as well as ill-treatment at the time of arrest and during police custody. The Committee is also concerned about reports on the widespread use of torture and cruel, inhuman or degrading treatment of detainees by law enforcement officials, including in the so-called “safe houses”. It is also concerned at the impunity flowing from the fact that only a few of the investigations into cases of ill-treatment have resulted in prosecution, and if any, in conviction, and that adequate compensation to victims has not been provided (arts. 2, 7, 9). The State party should guarantee in practice unimpeded access to legal counsel and doctors immediately after arrest and during detention. The arrested person should have an opportunity immediately to inform the family about the arrest and the place of detention. Provision should be made for a medical examination at the beginning and end of the detention period. Provision should also be made for prompt and effective remedies to allow detainees to challenge the legality of their detention. Anyone arrested or detained on a criminal charge must be brought promptly before a judge. The State party should ensure that all alleged cases of torture, ill-treatment, disproportionate use of force by police and death in custody are fully and promptly investigated, that those found responsible are brought to justice, and that compensation is provided to the victims or their families. [Paragraph 15]
While welcoming the aspiration of the State party to accept and foster a vibrant civil society, including many human rights organisations, the Committee is nevertheless concerned at the number of incidents against human rights defenders and community leaders, including intimidation and verbal and physical attacks, enforced disappearances and extra-judicial killings (arts. 19, 21 and 22). The State party must take measures to immediately halt and protect against the harassment and attacks against human rights defenders and community leaders. The State party must systematically investigate all reported instances of intimidation, harassment and attacks and guarantee effective remedies to victims and their families. [Paragraph 19]
None of the above recommendations of the Human Rights Committee can be realised without an effective witness protection programme. Although the government of Thailand can point to a newly-established witness protection law and agency, both of these are falling far short of what is required in order to comply with international law, and are in no way sufficient as to ensure the protection of witnesses and victims, let alone the furtherance of justice and the rule of law.
The Witness Protection Act of Thailand
Many new laws and institutions were established after the 1997 Constitution of Thailand with the purpose of effecting rights that did not fully exist under earlier constitutions. The Witness Protection Act is among these. Under the 1997 Constitution
In a criminal case, a witness has the right to protection, proper treatment, necessary and appropriate remuneration from the State as provided by law. [Section 244]
In a criminal case, an injured person has the right to protection, proper treatment and necessary and appropriate remuneration from the State, as provided by law.
In the case where any person suffers an injury to the life, body or mind on account of the commission of a criminal offence by another person without the injured person participating in such commission and the injury cannot be remedied by other means, such person or his or her heir has the right to receive aid from the State, upon the conditions and in the manner provided by law. [Section 245]
After some years the Witness Protection Act BE 2546 (2003) was passed to enable the constitutional provisions. It followed the Compensation for Victims of Crime Act BE 2544 (2001).
In recent times it has become glaringly obvious that many of the new laws and bodies established under the 1997 Constitution were hastily prepared and have been ill-equipped for their stated purposes. The Witness Protection Act and corresponding office are no exception.
Perhaps the most serious concern arising from the existing Witness Protection Act is that it lacks detail. At barely eight pages, it is little more than a thumbnail sketch of the work of witness protection. It is instead beholden upon the mandated agency or agencies to introduce regulations with which to expand upon its contents. However, the business of introducing regulations may be fraught with difficulties, and under any circumstances the law is very limited even in comparison to other similar enabling legislation. For instance, the Witness Protection Act was introduced to prevent intimidation and threats against witnesses and victims of crimes. Yet at no point is there a definition of ‘intimidation’ or ‘threat’. Similarly, sections 21 to 23 set down relatively light penalties for revealing the identity of witnesses, intimidating them or causing harm or death, but again key terms such as ‘lose security’ or ‘harm’ are not explained.
There is, however, a definition of ‘witness’ in section 3, which is problematic for different reasons:
“Witness” means a person who commits himself/herself to be present at, or testify, or give evidence to a competent official for investigation, a criminal interrogation, a court for criminal proceedings, and includes an expert but not a defendant who himself/herself is a witness. [Unofficial translation; emphasis added]
The exclusion of defendants from the definition of persons who may obtain protection runs contrary to the law’s purposes and is enormously detrimental to the protection of human rights and advancement of justice in Thailand. Victims of torture, arbitrary detention and other severe abuses in police custody in Thailand are easily subjected to criminal prosecution based upon forced confessions, doctored evidence and fraudulent record keeping. They are among the persons in greatest need of protection. However, the present law denies them this right.
Not only is this limitation deeply offensive, it is also in violation of Thailand’s obligations under the International Covenant on Civil and Political Rights. As a party to the Covenant, Thailand has committed itself to providing redress to all persons who have suffered violations of the rights it encompasses. This obligation stands without regard to other factors, such as whether or not the person is the defendant in a criminal case. It likewise runs contrary to the stipulation of the UN Human Rights Committee that appropriate arrangements be made for investigations of all cases of custodial abuse in Thailand. In fact, the effect of this provision can only be to encourage police to lodge criminal charges against persons they have abused, in order to ensure that they be denied protection.
On the management of witness protection, according to section 6 of the Witness Protection Act:
In a case where a witness loses his/her security, a competent official from criminal investigation, interrogation, prosecution or the Witness Protection Bureau as the case may be shall design for the witness protection measures as deemed appropriate. [Unofficial translation]
What criteria are used upon which witness protection measures are “deemed appropriate”? The law gives no guidance. By way of comparison, section 4 of the Hong Kong Witness Protection Ordinance 2000 sets out all the basic criteria to be used in deciding whether or not a witness should be protected:
1. Whether the witness has a criminal record, which could indicate a risk to the public if the witness were included in the witness protection programme;
2. If a psychological or psychiatric examination has been conducted to determine if the witness is suitable for the programme;
3. The seriousness of the offence;
4. The nature and importance of the evidence or statement given by the witness;
5. Whether or not there are viable alternative methods of protecting the witness;
6. The nature of the perceived danger to the witness;
7. The nature of the witness’s relationship with other witnesses being assessed for inclusion in the protection programme; and,
8. Other factors that the approving authority considers relevant.
The procedures that witness protection officers in Hong Kong must adhere to are set out comprehensively in the Witness Protection Ordinance. For example, section 8 enumerates the steps taken to establish a new identity for a witness. It identifies the public officers who are authorised to issue the necessary documents to create a new identity, and how they are to proceed.
By contrast, the Witness Protection Act of Thailand fails to consider in detail any of the practical steps and problems arising from witness protection. Section 10 loosely nominates the Witness Protection Bureau–later renamed the Witness Protection Office–to take certain measures, including:
1. New accommodation;
2. Daily expenses for a witness and person under his or her care for up to one year, with further 3-month extensions not exceeding two years;
3. Coordination with relevant agencies to change the first name, family name, and information that contributes to knowledge of the personal identity of the witness;
4. Assistance for the witness to continue with a career or obtain training with which to earn a living.
5. Assisting or acting on behalf of a witness for his or her lawful rights.
6. Bodyguards for any necessary period of time; and,
7. Any other action to assist and support the witness with his or her security as appropriate.
Nowhere in the Witness Protection Act is there a step-by-step explanation of how these provisions are expected to operate, or who is in charge. There are no universal guidelines on witness protection. There is no guidance on the role of particular agencies. The lack of guidelines leaves the door wide open for disparities in methods of dealing with witness protection, and inter-agency conflict. All this is despite the existence of a discrete body, the Witness Protection Office, established ostensibly for the purpose of seeing the law brought into effect.
The Witness Protection Office of Thailand
Among the new agencies set up following the 1997 Constitution, a number were placed under the Ministry of Justice. They are aimed at counterbalancing the established powers of the police and traditionally powerful parts of government such as the Ministry of Interior. They include the Central Institute of Forensic Science, Department of Special Investigation and Department of Rights and Liberties Protection. Some were initially proposed as entirely independent bodies, but were later initiated under the ministry for practical reasons. These agencies have since taken on very different profiles.
Under forward-thinking and outspoken leadership, the Central Institute of Forensic Science has aggressively tackled its mandate and repeatedly challenged the findings of police forensic scientists and other powerful agencies. As a result it has been the target of incessant attacks by officials resentful of its presence and behaviour. It is frequently in the media, and widely-known and respected throughout the country. Its director is lauded for her courage, relentless pursuit of the truth, independence and integrity.
By contrast, the Department of Special Investigation has been a human rights failure. Despite trumpeting successes in dealing with organised crime, terrorism and large-scale fraud, it has not solved a single human rights case. It has not prosecuted police accused of torture. It has not brought to justice the masterminds in killings of human rights defenders and environmentalists. It has failed to take up dozens of cases brought to its attention that fall within its criteria: most where police have been the accused. The police general heading the department has been accused by victims and human rights defenders of deliberately obstructing inquiries where the police are involved and senior figures may be implicated by evidence.
The Department of Rights and Liberties Protection, which houses both the Witness Protection Office and Office for Public Compensation for Criminal Cases, has attracted relatively less attention. This is unfortunate. To be made effective all of these agencies need to be the subjects of constant scrutiny and discussion, and this department, like the others, has a critical role to play–not least of all in managing witness protection.
According to the Witness Protection Act BE 2546 (2003), the Witness Protection Office has powers of “coordination and arrangement to obtain results among public agencies and private organizations, where relevant, which would make protection measures effective” (section 13; unofficial translation).
The Witness Protection Act suggests a supervisory role for the office, in conjunction with other key agencies, such as the police. But how does this coordination work? Is there supposed to be a hierarchy of public agencies with the office at the top? The law does not make this clear. In fact, section 13 is the only one that deals with the office specifically.
The lack of detail is compounded by section 5, which stipulates that
The Prime Minister, Ministers of Defence, Interior and Justice shall be in charge of enforcement of this Act and, in relation to their respective Ministries, shall have the power to appoint competent officials and issue Ministerial Regulations and notifications for the purposes of the implementation of this Act.
Again, the law gives no guidance on how these ministries are supposed to cooperate, suggesting that in the hurry to put the law into effect hard questions about which part of government should be put in charge were deliberately avoided.
Despite the lack of clarity about the precise role of the office, it is envisaged as the specialised agency for witness protection in Thailand, responsible for seeing the law implemented and further rules and regulations drafted.
At present, there are many areas of witness protection awaiting clarification by the office. For example, if a witness dies or is killed while under protection, who is liable? Is it possible to relocate witnesses outside of Thailand? Successful witness protection hinges on answers to these types of questions. If regulations are not fully developed, the office cannot call upon other government agencies to comply with procedures and implement and promote witness protection schemes.
However, the office has very limited resources and capacity. At the end of 2005, it had only 10 officers, although under existing arrangements it should have been allocated 22. The officers do not have special qualifications or training. Most have been transferred from other parts of the Ministry of Justice, without any criteria applied to assess their suitability for witness protection work. The Witness Protection Act does not offer any guidance on who should be recruited to the office. There is no formal training for officers once they are recruited. In short, the small cadre of officers also lacks professional qualifications and skills specific to the job.
Compare this arrangement to that governing the Department of Special Investigation. The Special Case Investigation Act B.E. 2547 (2004) stipulates in detail that a board is to oversee management of special cases, and of which persons it consists. It specifies its role. It also outlines in detail the qualifications of departmental personnel, who are recruited from the police, military and other relevant professional backgrounds. The department is obliged to cooperate with other government agencies, and may choose to do so with outside institutions and professionals, but it is not dependent upon them to fulfill its mandate.
By contrast, with 10 unqualified staff for the entire country of some 65 million, the Witness Protection Office cannot itself offer any protection at all. Instead it relies upon seven other agencies, being the
1. Royal Thai Police;
2. Royal Thai Army;
3. Bureau of Internal Security Affairs, Ministry of Interior;
4. Department of Special Investigation, Ministry of Justice;
5. Department of Corrections, Ministry of Justice;
6. Office of the Narcotics Control Board, Ministry of Justice; and,
7. Department of Youth Observation and Protection, Ministry of Justice.
Like the staff of the Witness Protection Office itself, most officials from the seven agencies have little or no expertise in protecting vulnerable witnesses and victims. Most know only how to interrogate suspects and detain convicts. When approaching witnesses, many use the same methods of aggressive inquiry and forced confinement, leaving the witness or victim feeling like a suspect. Some witnesses complain of having been followed at any time of day or night by the ‘protecting’ officers, making them feel even more vulnerable and intimidated than before.
After it was established in 2004, the Witness Protection Office began by introducing the concept of witness protection to police officers from all nine police regions across Thailand. One employee from the Department of Rights and Liberties Protection was sent to each of the country’s 76 provinces to meet representatives of the seven agencies there. Among the seven, the key agency is the police. In view of the fact that the police in Thailand are the main perpetrators of human rights violations, this is the biggest flaw in the current arrangement. In fact, it completely undoes the entire notion of protection.
The police still call the shots
In principle, the Witness Protection Office protects witnesses in Thailand; in practice, the police are in charge. As the Royal Thai Police have the men and national reach, it is taken for granted that they have the capacity to protect witnesses, if they wish. At the end of 2005, out of the approximately 130 persons that had been under witness protection since the Witness Protection Act was passed, around 90 per cent had been protected by the police.
Rather than perhaps question the premise that police are suitable persons to offer protection, the Witness Protection Office has instead chosen pragmatically to concentrate on training them. Although short on experience, its officers are conducting programmes with senior district-level police, who are then expected to train their subordinates, and so on. Subsequently, the office will concentrate on staff in the six other agencies.
The Witness Protection Office cannot order the police to protect someone. When the office refers a case to the police, they may choose to accept or reject it. The office has no power to contradict a decision by the police. It can only protest, or request another part of the police or another of the seven agencies to protect the witness. However, the remaining six agencies will only act on specific cases that are already part of their respective mandates. For instance, the Department of Special Investigation may consider giving protection to a witness in a case that it is investigating, and the Department of Corrections will only take up cases concerning prisoners. Again, these agencies act at their own discretion, not under any obligation.
Once a case is accepted by the police, they have complete control. They decide when protection is offered, how it is offered, and when it ends. The Witness Protection Office has no input, contrary to its stated role as ‘coordinator’ of the relevant public and private agencies involved in making the protective measures effective. Once a witness is referred to the police, the office can do little more than contact the concerned officers from time to time to request basic information about the person’s wellbeing.
Thus the existing provisions for witness protection in Thailand contain a startling and enormous contradiction. The express purpose of the Witness Protection Office being established outside the police force was to bring a degree of civilian oversight over the protecting of victims and witnesses. However, the direct consequence of the existing arrangements has been to hand virtually all of the real authority for protection to the police.
According to staff of the Witness Protection Office, when responding to offers for police protection witnesses fall broadly into two categories:
1. The witness or victim in an ordinary criminal case feels that there are ‘good’ police and ‘bad’ police. They ask for protection by the ‘good’ police.
2. The witness or victim in a criminal case involving state agents or influential persons feels that the police as a whole are bad. They may refuse protection for this reason, and run the risk of threats and reprisals on their own. If they accept protection, they will still feel insecure and vulnerable.
In cases where the office has been asked to give protection against police from particular areas, it has sought the assistance of national-level police agencies, or those from other regions. However, this is usually only a short-term arrangement that leaves the witness feeling far from satisfied.
Contrast this arrangement with what has been established in Hong Kong. Under the Witness Protection Ordinance there, both the head of the police and the head of the Independent Commission Against Corruption (ICAC) have the power to institute witness protection measures. Witnesses in criminal cases involving corrupt and illegal actions by state officers, having complained to the ICAC, may seek protection from its own independent Witness Protection and Firearms Section. The ICAC then takes direct responsibility for protection. It does not rely on outside agencies, and can control all aspects of protection as set out in the ordinance, independent of the police.
Thailand does not yet have any independent investigative agencies like the ICAC upon which the Witness Protection Office can call for assistance. However, there are many interim alternatives that remain untried for lack of political will. The government could, for instance, attach a discrete armed unit to the office, give it special training and make it answerable to the ministry. Whatever the case, steps need to be taken to remove control of witness protection from the police: this is by far the biggest weakness in the current arrangement, and the one that undermines the very principles upon which it was founded.
How to get protected
It is not easy to get protected. To begin with, the Witness Protection Office must receive a request for protection, from the witness or a concerned person, in order to begin its work. But the office is little known. The extent of its publicity to date, apart from some leaflets, has been in the form of ‘crawling text’ at the bottom of television screens during news broadcasts. Far more needs to be done to raise its profile, especially to ensure that it can intervene promptly in emergency cases.
A witness can also approach the police or any of the seven agencies involved in witness protection directly. Any one of them can offer protection without the involvement or knowledge of the Witness Protection Office. The only requirement is that they do so in accordance with the general provisions of the Witness Protection Act.
If the office receives a request for protection, it usually proceeds as follows.
1. A witness protection officer ascertains whether or not the situation is critical. If so, the police are contacted immediately. If not, the officer takes several days to examine the case and decide how to proceed.
2. If protection is offered, the witness or victim is asked to give written consent, by way of a form (contained in Appendix III). Four persons are entitled to have access to these documents: the witness protection officer responsible for the case, the director of the Witness Protection Office, and the Deputy Director-General and Director-General of the Department of Rights and Liberties Protection.
3. The witness protection officer then contacts the police, starting with the superintendent of the district where the witness is residing. He is asked to allocate a team of officers to protect the witness or victim. Under existing regulations, this arrangement can continue for up to 21 days. After this, the commissioner of the region can order up to a further 60 days protection. Beyond 81 days, it is necessary to obtain approval from the police commissioner-general, for whatever period of time he sees fit.
4. Once the police have agreed to give protection, the case is in their hands. They decide the duration and manner of the protection. Under any circumstances, they will cease giving protection when the trial in which the witness is appearing has concluded, when the threats and intimidation are perceived to have ceased, or if the witness dies.
5. The witness protection officer has a ‘hotline’ to the police officers in charge of protecting the witness. The officer can ask about the health and other circumstances of the witness, but answers depend on the willingness of the police to cooperate.
One glaring problem arising from the above is the artificial deadlines imposed by police who are giving protection. Cases may take years to pass through the courts, and the need for protection may in some instances extend well beyond the conclusion of a trial. While the Witness Protection Act envisages long-term protection of this sort, at present the police offer only short-term security, except in rare cases where the head of the police force intervenes.
A diagram issued by the Department of Rights and Liberties Protection represents the alternative routes to obtaining witness protection in principle.
(Source: Brochure on the Witness Protection Act by the Department of Rights & Liberties Protection)
Despite coherent diagrams, in practice witness protection in Thailand is arbitrary. There is little evidence of uniformity in how cases are addressed and protection offered. This is especially the case where the police or their allies are among the accused.