Statement on Provisional Release of the Accused, Natthanit Duangmusith (Baipor) and Netiporn Sanesangkhom (Bung) for Political Opinion

           Following the media reports, the youth activists accused of lese majeste under the section 112 and other security offences of the Penal Code. This results from their expression of political criticism which has been protected and guaranteed by the Thai Constitution and the International Human rights Law. The activists have been presumed of innocent under these laws but they have still been kept in custody and not given a provisional release. As in the case under the trial by the South Bangkok Criminal Court, the court revoked the petitions for release on bail of Natthanit Duangmusith (Baipor) and Netiporn Sanesangkhom (Bung) by asserting that the petitions have insufficient grounds for proving that the activists would not violate bail conditions. The conditions do not allow them to do any activities defaming the monarchy and provoke social network assembly as well as sedition. The court does not believe they will follow this conditions and there is no circumstance for renewing the original indictment. 

            Concerning about the fundamental rights and people’s confidence to the judicial system, we, the Union for Civil Liberty, and the undersigned civil society organizations would like to make the proposals as following 

1. Releasing on bail which is fundamental human rights should be based on the principle of presumption of innocence. The principle has been guaranteed under the section 29, para. 2, of the Constitution of the Kingdom of Thailand 2560 B.E.. It provides that “A suspect or defendant in a criminal case shall be presumed innocent, and before the passing of a final judgment convicting a person of having committed an offence, such person shall not be treated as a convict.” The principle has been supported by the article 9, para. 3, that “ … It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.” In addition, the Criminal Procedure Code has two important provisions on provisional release. Section 108 has given the court discretion power to decide an application for provisional release and the section 108/1 has given the court discretion power to deny provisional release upon 5 grounds to believe; (1) the accused or defendant is likely to abscond (2) the accused or defendant would interfere with the witness or evidence (3) the accused or defendant would commit further offence and other danger (4) the applicant or security is not credible and (5) if provisional release is granted, this will cause an obstruction or damage to the investigation of the officer or the proceeding at the court. 

We, the Union for Civil Liberty, and the undersigned civil society organizations think that, in exercising discretion power to decide an application for provisional release of Natthanit Duangmusith (Baipor) Netiporn Sanesangkhom (Bung) and other activists arrested for political criticism, the court should consider under 5 grounds in section 108/1. Moreover, If the court wants to apply conditions for release on bail under section 108 para. 3, we have observations to be considered that this paragraph has the word “or” for the choice of the court in considering the petition for provisional release; (1) Place of residence of the released person for the time being or (2) Other condition to hold the released person in check and restrict his travel (3) Application of electronic device for holding the released person in check and release his travel. The reason why this provision uses the word “or” is to give a choice for the court to apply one of the three conditions to give more chance for accused and defendant to be provisionally released.

2. The court should not refer to royal defamation conduct which is not stipulated in the provisions of the Criminal Procedure Code as a condition for denying provisional release. It is because the provisions give no discretion power to the court for considering the case through this condition. The court might use its discretion beyond the scope of power under section 108 by reasoning that “There’s no message and fact determining that the second and third defendant will comply with the court order”. This is because the participation in peaceful political assembly, consistent with the Constitution, by these activists did not cause an insurgency. It does not meet requirements under the 108 section.

The action of the court can lead to a deterioration of the principle of rule of law/L’Etat de Droit and the confidence in judicial system. The court should have an integrity in principle and spirit of law for maintaining the faith in justice for all people and open for access into legal fundamental rights, including right to be presumed innocent.

            We, the Union for Civil Liberty, and the undersigned civil society organizations, call on the South Bangkok Criminal Court to review the order denying release on bail of Natthanit Duangmusith (Baipor), Netiporn Sanesangkhom (Bung) and other activists arrested for political criticism. We would like the Court to conform with the principle of presumption of innocence to respect the right to justice of the accused. 

20 July 2022

Signatures:

Union for Civil Liberty

Thai Lawyers for Human Rights

Non-Binary Thailand

Campaign for Popular Democracy

Peace and Culture Foundation

Cross Cultural Foundation (CrCF)

Human Rights and Developm