Asian Legal Resource Centre, Hong Kong
The government of Thailand claims to adhere to the International Covenant on Civil and Political Rights, and have in place a constitution that protects those rights. It can point to the existence of a law, and an office, for witness protection. But the law is deficient, the office is understaffed, the police continue to run the show and victims and witnesses of gross human rights abuses are not in fact protected.
Both international law and the national constitution can be made good only through effective domestic laws and institutions. The means exist to make Thailand’s witness protection scheme a reality. So what can be done?
1. The Witness Protection Act must be better defined
Key words in the legislation need to be clearly defined. What is ‘intimidation’? What is ‘harm’? Who is a ‘vulnerable witness’? For this purpose, witness protection laws in other jurisdictions, such as Hong Kong, should be studied and discussed.
2. Defendants must be entitled to protection
Among the most vulnerable and important witnesses–and perhaps some of the most common in Thailand–are criminal defendants who allege that they have been tortured or threatened into making a confession by the police. It is essential that the Witness Protection Act be amended to cover these persons, whether or not they are in custody. In this respect, Thailand must ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which will pave the way for necessary administrative and legal reforms across the board to punish torture perpetrators and protect victims, where they are defendants in criminal cases due to extracted confessions.
3. There should be criteria for offering and giving protection
Witness protection officers are forced to make arbitrary decisions and use their own initiative for want of explicit criteria on who does or doesn’t deserve protection. Once protection is offered, the lack of defined procedures for giving it hampers effective intervention. The act must include details of certain key procedures. For example, how does a witness get a new identity? Which other agencies need to be involved? How can protection be given immediately, in emergency situations? Developed witness protection laws in other jurisdictions should be studied and adapted to suit conditions in Thailand. Once basic criteria are laid down in law, they can be amplified through additional regulations and guidelines.
4. The Witness Protection Office must be given explicit power
The role of the Witness Protection Office is at present captured in a single section of the Witness Protection Act. The law says nothing of how it is to be run, its functioning and responsibilities. Above all, it says nothing of the relationship of the office with other government agencies, especially the police. The act must instead specify the powers, role and functioning of the office and its staff. The office should be given managerial and administrative power over witness protection. Where the office is not able to give protection itself, it must be entitled to enforce its directives to the police and other agencies, including through legal action where there is refusal to comply. It must be entitled to be fully informed of all steps taken in compliance with its directives by other agencies.
5. The Witness Protection Office must be given more staff and resources
Thailand has over 200,000 police but at present only 10 staff assigned to witness protection, with paltry funding. Until this massive imbalance is corrected it is obvious that there will be no possibility for the office to play any kind of significant role, and it will be forced to continue to rely on the police and other outside agencies. The Minister of Justice and cabinet must take personal responsibility to increase the staff and resources assigned to the Witness Protection Office. To this end, the ministry should advocate vigorously for a greater allocation out of the national budget. In the longer term, attention should be paid to separating the office from the ministry and running it as an independent agency.
6. Witness Protection Officers must be given rigorous training
Witness protection officers are being recruited from other parts of the government bureaucracy. They must be carefully selected according to specific criteria. Once in their new jobs, they must have rigorous specialised training. Only then will they be in a position to offer effective protection to witnesses, and extend what they have learnt to the personnel in other agencies.
7. Legal and medical professionals should also be trained on witness protection
Very often the first persons to have contact with victims and witnesses in need of protection are public prosecutors and other lawyers, or doctors and other medical staff. There should be special efforts to inform these persons on witness protection, and incorporate them into relevant procedures. A doctor treating a person who has allegedly suffered torture, or a public prosecutor who has been assigned to their case should know to contact the Witness Protection Office without delay, and make arrangements for staff from the office to visit the person immediately. Lawyers should be able to explain to a client about witness protection and advise whether or not the client should request it. Judges should be taught to identify cases of possible torture or intimidation and be given explicit powers to take additional steps to protect the rights and interests of the accused, including by ordering independent physical and psychological examinations before a defendant is released on bail or detained to await trial. Professional associations such as the Lawyers Council of Thailand can play an important role in advancing knowledge of witness protection among their members.
8. Courtrooms must be modified to protect witnesses
The witness stand in courtrooms in Thailand needs to be moved as far as possible from the defence and prosecution benches. Legislation should be introduced or amended to allow for special measures in cases where witnesses are already under protection or are otherwise deemed vulnerable. Simple low-cost measures include the placing of screens to conceal the witness from most of the courtroom, or giving of evidence via live link from a third location. Judges should also be trained to identify witnesses whose testimony is obviously damaged due to fear, and take necessary steps to intervene, including by postponing testimony and seeking intervention from the Witness Protection Office. Again, the government of Thailand can study measures taken in other jurisdictions.
9. More criminal procedures must be introduced to protect witnesses
Other legislation needs to be amended and developed to complement the Witness Protection Act, such as the Criminal Procedure Code. This must include more express provisions on the penalties for intimidating witnesses, and criminalising acts that obstruct the course of justice.
10. The public must be better informed about witness protection
The public needs to know about witness protection in general, and the Witness Protection Office in particular. As both a new concept and a new agency in Thailand, without a concerted effort at raising public awareness, the witness protection scheme will remain anonymous. Intervention at critical moments especially depends upon persons outside of the office requesting its assistance. The government of Thailand must increase the amount of resources and airtime on television and radio stations for publicity of the Witness Protection Office and the importance of witness protection for the entire criminal justice system. Attention must be paid to getting the information to particularly vulnerable groups, such as the large number of migrant workers in Thailand who are easy targets for abuse by the police. Human rights groups, such as the National Human Rights Commission of Thailand, should also play a key role. Similarly, the media, academics and other concerned agencies can raise discussion at home and abroad that may impress upon the government a greater sense of its obligation to ensure that witness protection be made a reality in Thailand.
Although Thailand has introduced a law and discrete agency on witness protection, these are yet to make witness protection a reality. Little has changed. Protection measures are arbitrary and few. The police are in control. It is perverse to expect a victim of police torture, the wife of a person abducted by state officers, or the witness of an extrajudicial killing to rely upon the police for their security. At best, the present arrangement does nothing more than create a cruel expectation that such a thing as “witness protection” exists; at worst, it expands the capacity of the police to commit abuses and damage the work of the courts by entitling them to take charge of a scheme over which they should not have responsibility.
It is likely that if the Witness Protection Office is not given the support and attention it needs, it will become nothing more than a de facto agency of the police. If that happens, it will be a failure. If, by contrast, the office is made into a strong and independent working entity, through improved legislation and ample resources, it may become a lesson for other countries in the region. There are many other jurisdictions in need of a good example. And the advancement of witness protection will also do much for the improvement of Thailand’s international reputation on human rights, which in recent years has suffered considerably.
The government of Thailand has the resources to make effective protection of victims and witnesses a reality. It has an obligation under the national constitution and international law to do the same. Whether or not it has the willpower depends largely upon the extent to which attention is paid to the importance of effective independent witness protection by outside agencies, and discussion is raised among the public. All concerned persons and agencies in Thailand and abroad, especially human rights defenders and their organisations, should play a part in creating a public debate on witness protection, and seeing the promise of the constitution become reality.
Thailand’s institutions have historically worked to protect the perpetrators of human rights abuses. To have them protect the victims instead is no simple matter of a law and an office. It will require a much more than this. But as the struggle is on in earnest for the rights of the ordinary person against the power of the influential person, the interests of the private citizen against the authority of the state agent, the principles of constitutionalism against the brutality of feudalism, the time is right. The Asian Legal Resource Centre urges all concerned persons and organisations to recognise that effective witness protection is integral to the functioning of the courts and the guarantee of justice, and so to work for the changes needed to make it reality in Thailand.