THAILAND: Justice depends on witness protection

June 30, 2006

A Statement by the Asian Legal Resource Centre

THAILAND: Justice depends on witness protection

The Asian Legal Resource Centre has today, June 30, released a new report on witness protection in Thailand, the first in a planned series of detailed studies on specific institutional obstacles to human rights there.

Witness protection is all about the fight against impunity that is at the heart of human rights struggles worldwide. Without witness protection, victims of human rights abuses who complain and seek justice must face serious threats leading to physical harm and possibly death of themselves or their loved ones. This violence is brought onto them by powerful people, whose power invariably comes from the uniforms they wear.

A legal system that promotes justice but does not set in place the means to protect witnesses is a fraud. When victims of human rights abuses understand this, they do not come forward to assert their rights against the perpetrators. No attempt is even begun to make complaints and assert rights. The victims remain silent, inert and fearful.

A justice system depends upon evidence being collected and brought before the courts. If fear prevails, evidence cannot be collected. When evidence is not collected, the courts either do not take up cases or dismiss the charges against the accused, as the judge can only consider what is brought before the court. In this manner, the perpetrators of torture, extrajudicial killings and forced disappearances routinely escape justice.

Just as the outcome of a case depends upon the quality of evidence presented to the court, the quality of evidence depends upon the investigation, from its earliest stages. If a complainant is unafraid and comes forward shortly after a crime, describes in detail what happened, points to other persons and materials that substantiate this account, is supported by other witnesses and does not change the account, the case will probably be a success. By contrast, if a complainant is fearful and has low expectations of the courts, coming forward only much later–if at all–reluctantly giving details of what happened and who else may be able to substantiate the story, and under pressure changes the account, the case is unlikely to succeed. In human rights cases especially, the determining factor between one outcome and the other is protection.

Witness protection is also about how a judge exercises authority. In a developed legal system, the judge asserts the prerogative to make decisions on how the case is handled. Respect for that authority is determined by the extent of respect for fair trial. Where fair trial is respected, judicial orders are upheld. Where fair trial is sabotaged, judicial orders are mocked. When the accused is able to get rid of prosecution witnesses or cause them to reverse earlier testimony, the court also is made into a cruel parody. Whatever formal gestures the judge may make, the authority of the court is diminished.

The authority of a court and respect for fair trial are put to the greatest test when state officers are the accused. A law enforcement officer has many more means than an ordinary person to ensure that complaints against him are never heard by a judge. Where they are heard, he has still many other means to reduce a trial to farce. In most cases against law enforcement officers in Asia, witnesses are afraid to appear in court. Where they do appear, they deny earlier testimonies or lie blatantly in a desperate attempt to escape retribution. At such times, the perpetrator is laughing loudly at the court and its judge.

So the absence of witness protection and the absence of fair trial are one and the same. When the public understands that the courts are in the hands of police and politicians, and even the best judges can be manipulated and cornered, the entire system loses credibility. Where judges are active participants in this charade, the very notion of justice will be lost to the society. Where a case is repeatedly postponed because witnesses have not appeared or alleged perpetrators are acquitted “for lack of evidence”, the judge may be acting within the law but the effect is that the court is making a mockery of itself. Under these circumstances, institutions of justice lose all credibility.

Protecting witnesses is a duty of the state. This is a fundamental and globally-established principle. Where the state declines to protect witnesses, it denies justice to society. The state must find the people, money and means to do this. A state that talks about witness protection but does not allocate funds and resources for that purpose fails in its duty. But the real problem in setting up a witness protection programme is not money; it is about the place of witness protection in state policy. Where the importance of protecting witnesses to obtain justice is understood and articulated, an authority to give effect to this policy can be quickly established and developed. There are many available resources for such work these days.

Thailand is among those countries in Asia that has gone through a long history of heavy military and police control. This history has created a deep and enduring fear among victims of human rights abuses there. That fear is the heritage of all countries with long traditions of social repression. But people in Thailand are now struggling hard to throw off that heritage. They have taken their country from dictatorship to formal democracy. They are now trying to move it from a merely formal democracy to a genuine one. In many respects, this is a far more difficult task than to overturn dictatorship. It involves much deeper transformations that challenge more widely-held notions about state and society.

So it is that despite the establishment of a witness protection agency under the Ministry of Justice, in practice the police control most aspects of witness protection. As the police in Thailand are the main violators of human rights, the notion that they can be responsible for protecting victims is both unreasonable and contradictory.

The new Witness Protection Office needs to be strengthened and given far greater control over management of witness protection. If it is not, its purpose will be defeated, and the prospects of justice for victims of human rights abuses in Thailand greatly diminished. It is already in danger of becoming no more than a subsidiary agency to the police force and other more powerful parts of the bureaucracy. This must not be allowed to happen.

What should be expected of Thailand’s witness protection programme? It must be easily accessible. It must be widely known and its role understood. It must respond promptly to requests. It must have a range of alternative forms of protection available to witnesses, including special protection in courts. It should also be able to protect identities when required. It must respect confidentiality. A working protection scheme will win public confidence, support and cooperation, and have profound effects on the country’s entire judiciary.

None of the proposals for improvements to witness protection in Thailand put forward by the Asian Legal Resource Centre will come as a surprise to persons familiar with the current legal and policing system there, or for that matter, anywhere in Asia. However, they need to be much more widely articulated and discussed among concerned jurists and lawyers, human rights defenders, government officials or victims. Far greater public debate is needed to make effective witness protection in Thailand and the region a reality. The launch of this report is an occasion for new growth in this debate.

Despite its existing severe limitations, Thailand�s witness protection scheme is an extremely important initiative, and among the few of its kind in Asia. It deserves much stronger encouragement. If it gets the interest and support it deserves, it could become an outstanding example for the region. If it does not, it will be swallowed up by the perpetrators, not defenders, of human rights.

Both domestic and international bodies have cause for concern and interest.

The government of Thailand, and in particular the Minister of Justice, must do much more to make the Witness Protection Office an effective agency. At present it does not have even half of the staff it was promised. It is obvious that it needs more personnel and resources from the ministry before there can be any talk of it doing effective work. This is a matter of policy decisions on the part of the minister and cabinet, not a question of availability of money with which to do the job. The principle of witness protection, although written into the national constitution, is still foreign to the political leadership of Thailand. This must change.

International bodies, bilateral agencies and overseas missions should all be offering support for the office. Governments with established witness protection programmes could be providing technical and material assistance. They have much to offer. Such exchanges would be very much in their own interests, as foreign nationals in criminal cases in Thailand also suffer from miscarriages of justice caused by the lack of witness protection and attendant problems. And for international agencies, Thailand has the right qualities for a successful witness protection model which could be advertised and replicated elsewhere.

International and local human rights organisations, university departments, scientific and professional groups, members of parliament, the National Human Rights Commission and above all, the witnesses and victims themselves, should all contribute to the much-needed discussion on witness protection in Thailand, and offer whatever means they have to make it a reality.

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About ALRC The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at local and national levels throughout Asia.

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The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations.

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