Document Type

Report

Publication Date

8-2020

Abstract

From November 2019 to January 2020, the Human Rights Clinic at Columbia Law School monitored the trial of five individuals on charges of sedition and membership in a secret society, the latter predicated on the defendants’ alleged affiliation with the Organization for Thai Federation (OTF), an organization whose political platform includes changing the existing political system from a constitutional monarchy to republicanism. Specifically, the defendants were accused of a range of nonviolent activities in support of OTF, from distributing flyers and t-shirts to communicating with other supporters of OTF — all activities protected by their right to freedom of expression under human rights law. All the defendants were arrested in September 2018 and initially detained and interrogated in a military camp for several days.

On January 21, 2020, the Court convicted four of the five defendants of the charge of membership in a secret society, sentencing two defendants to three years in prison and the others to two years in prison (giving them “credit” for confessing their crimes during their detention in the military camp). The Court acquitted those four defendants of the other charge (sedition). The fifth defendant had absconded before trial.

While the Court is to be commended in this case for resisting the urging of the military witnesses to close the court to the public and for appropriately acquitting the defendants of sedition, this trial was marred by violations of the right to a fair trial, including the right to be informed of the charges, the right to counsel, the right against self-incrimination, the right to silence, and the right to a reasoned judgment. Further, the conduct of the proceedings raises substantial concerns regarding respect for the presumption of innocence and the right to be tried by an impartial court. Most notably, however, and infecting the entirety of the trial and its outcome, the case constituted a severe violation of the principle of legality and of the defendants’ right to freedom of expression. That is, the defendants’ exercise of their right to freedom of expression was penalized under a vague law — and, accordingly, pursuant to a generalized and conclusory decision — that criminalizes membership in a group without requiring that any criminal action has been taken by any individual defendant. So vague is this law that it cannot be said that the defendants could have understood which of their actions violated the law — and indeed, the judgment of the Court does not clarify which actions each defendant took that violated the law, instead apparently relying on the fact that the defendants were advocating for political reform without finding any evidence that they were aiming to commit crimes. In this way, the Court used Section 209 of the Thai Criminal Code (criminalizing membership in a secret society) as a tool to restrict the defendants’ right to freedom of expression. If the law were not so vague, the Court would not have been able to instrumentalize it to reach for such a result.

In sum, and as this report documents, the trial violated the defendants’ right to a fair trial not only because of the procedural violations in the proceedings but also because a vague law appears to have been used to punish these defendants for their protected political speech and beliefs, rather than for any criminal conduct.

Disciplines

Criminal Law | Criminal Procedure | Human Rights Law | Law

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