THAILAND: Supreme Court affirms illegality of defending human rights

The Asian Human Rights Commission is appalled at the recent decision by the Supreme Court of Thailand to uphold the conviction of Ms. Jintana Kaewkhao of Prachuab Khiri Khan province for her efforts to exercise fundamental human rights and defend the basic interests of her community.

For more than ten years, Jintana has fought against coal-fired power and other environmentally destructive development projects in the Hin Krut and Bo Nok areas of the province. She and her colleagues in the Bo Nok-Hin Krut Nature and Environmental Conservation Group successfully prevented the construction of coal-fired power plants in their communities and have worked to develop clean and environmentally conscious forms of power. Yet, she is now serving four months' imprisonment for alleged trespass onto the grounds of the company leading the efforts to build the coal-fired power plant. The final decision of the Supreme Court in her case, arrived at after eight years, indicates how the right of people in Thailand to protest and defend their communities from harmful environmental consequences has effectively been made illegal.

The initial case against Jintana was heard in the provincial court in Prachuab Khiri Khan province (Black case no. 1480/2545; Red case no. 3283/2546). The prosecutor alleged that the plaintiffs, who were the management of the office of Union Power Development in Prachuab Khiri Khan, were holding a party on the afternoon of 13 January 2004. While they were setting the table and otherwise preparing the room, a group of people burst into the room and threw a rancid substance on the table and in the ice buckets. Jintana testified that she went to the offices of the company on that afternoon, but was there with other activists in order to present a petition to the company. When they arrived, they were met by a group of over 50 tough-looking men, and decided to return home instead. There was a clear discrepancy in the testimony of the prosecution witnesses and that of Jintana; further, while some prosecution witnesses claimed that Jintana was the leader of the people who came into the dining room, other did not recognize her as among the group of trespassers. On the basis of this discrepancy, the provincial court dismissed the charges. The provincial court also made reference to the broader context of the opposition to the coal-fired power plant and the environmental, health and occupational reasons why Ms. Jintana and other community members and activists in Bo Nok and Hin Krut organized against the proposed plant. (Some more details are available here: http://www.article2.org/mainfile.php/0603/282/.)

The plaintiff appealed this decision and on 1 August 2005, the Court of Appeal for the 7th Region overturned the dismissal and convicted Jintana under sections 362 and 365(2) of the Criminal Code for trespassing in a group of two or more persons (Black case no. 3533/2546; Red case no. 2355/2548). The court overturned the decision of the provincial court on the basis that the evidence indicated that Jintana was present at the offices of the Union Power Development Company on the day in which the party was disrupted. While the court noted that there were discrepancies in the testimony of the plaintiff, it maintained that the defendant did not provide sufficient evidence to prove that she was not guilty of trespassing and leading others to throw a rancid substance on the dining tables. The court further noted that the discrepancies in the testimonies of the plaintiffs might have arisen because they were "afraid of the influence of the defendant, who was a leader of the group opposing the coal-fired power plant in Hin Krut". On this basis, the court sentenced Jintana to six months in prison.

The defendant appealed the verdict, and the Supreme Court upheld the decision and sentenced Jintana to four months in prison in a decision dated 20 December 2010 (Supreme Court case no. 13005/2553), which was read out in the Prachuab Khiri Khan Provincial Court on 11 October 2011. The Supreme Court noted that in this case what is at issue is whether or not the defendant was the leader of the people who trespassed and dumped a rancid substance on the tables of the Union Power Development Company. It found that the inconsistencies in the testimony of the plaintiffs and the failure of some prosecution witnesses to identify Jintana did not diminish the weight of the testimony. The Supreme Court further held that since there was no evidence to suggest that the plaintiff had a pre-existing conflict with the defendant, there was no reason to believe the bringing of charges was malicious. Since the defence was unable to provide conclusive evidence that Jintana was not the leader of the group who trespassed prior to the lunch party, the Supreme Court upheld the decision. The sentence was reduced on the ground that the accused had cooperated with the process. She began serving her sentence in the Prachuab Khiri Khan provincial prison after the decision was read on October 11.

In a Thai-language article for Krungthep Thurakij newspaper online on 29 September 2011 (here), Professor Somchai Preechasilpakul, Chiang Mai University law lecturer and expert on environmental and human rights law, raised a series of significant issues regarding this case. Primary among them, he underscored the importance of this case to the movement for environmental and community rights in Thailand. He also linked the case to questions of rights under successive constitutions, given that when Jintana was charged the 1997 Constitution was still in effect, but it was subsequently superseded by the 2007 version.

The Asian Human Rights Commission wishes to draw attention to this last point as since the time of the 2006 coup it stressed that the reassertion of military power and faux constitutionalism that followed would inevitably result in a resurgence of precisely the type of anti-human rights thinking and jurisprudence as shown in this case. Indeed, this sort of ruling can be but attributed to the court's complete disconnection from reality, if not its deliberate disregard for it. The notion that the plaintiffs in the current case might have had cause to fear the "influence" of the defendant is not only profoundly wrong but it is also profoundly disturbing. In Thailand, the reference to a person of "influence" carries a particular connotation attached to persons with linkages to others in power. It refers to a confluence of private and state influences, which have access to and are not afraid to use extrajudicial means to secure their interests. For the Court of Appeal to use this language with reference to Jintana, and for the Supreme Court to not challenge it, is not only incorrect but also extremely cynical, and an indicator of the extent to which human rights defenders in Thailand are again increasingly cast as troublemakers and evildoers who are against the interests of the state.

Like human rights defenders throughout the country, Jintana and her colleagues in Prachuab Khiri Khan have long faced intimidation and harassment by private capitalists and the state officials who collude with them. It is not those who fight for human rights but those who oppose them who have resorted to open violence. Let us not forget that on 21 June 2004, Mr. Charoen Wat-aksorn, another leader against the coal-fired power plant and other environmental destruction in Prachuab Khiri Khan, was assassinated as he alighted from a bus after returning from testifying in front of the Senate in Bangkok (see AHRC-UA-76-2004 for more information on his assassination). Earlier this year, on 31 January 2011, Mr. Pachern Ketkaew, yet another colleague of Jintana, survived an assassination attempt. Pachern has worked against another proposed power generation project in Prachuab Khan, one that rather than using coal as raw material has a planned source material of trash. While the methods are different – legal sanction as opposed to extrajudicial violence – the cases of Jintana Kaewkhao, Charoen Wat-aksorn, and Pachern Ketkaew all indicate the continued risks that anyone in Thailand faces for attempting to do no more than defend a community and the health of its people against those who would destroy it in the mad scramble for profit.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

The Royal Thai Courts are a

The Royal Thai Courts are a joke... an unfunny joke in that they cause such brutal suffering to so many innocent people with their complete disregard of the basic principles of law and evidence in their 'rush' to enforce the will of the tyrannical well-connected.

the defendant did not provide sufficient evidence to prove that she was not guilty

Of course that's upside-down. It is the plaintiff who must prove the guilt of the accused, not the accused who must prove her innocence.

This is a case of getting people to dress up in judge suits, to meet in what looks like a courtroom, and to railroad an innocent person in yet another attempt to keep ordinary Thais from asserting their rights in the face of their continued, traditional, brutal exploitation by the parasitic 'elite'

"afraid of the influence of the defendant ... a leader of the group opposing the coal-fired power plant in Hin Krut"

This is a gratuitous insult on top of the previous injury. The people dressed up as judges must have had a good laugh over drinks at this one. Everyone in Thailand knows who is afraid of whom in Thailand, and for what reason.

I suppose the people dressed as judges actually consider themselves generous... the Royal Thai Police didn't murder Jintana Kaewkhao. She got off 'easy'.

Yes. Unfortunately, many of

Yes. Unfortunately, many of the judges in Thailand (who are bureaucrats - pen pushers, rather than lawyers as I understand it), do not apply the law.

Instead they apply their own sense of what is best or what is called for, in the mistaken belief that they are pooyay - good people - who can do no wrong.

This is the house that Jack built. Daddy's house. Daddy likes it just fine. Daddy has done well with things just as they are, Daddy does not want change.

But Daddy will die soon and then there will be change anyway.

But daddy will die soon and

But daddy will die soon and then there will be change anyway.

I hope you are right but I don't think the ruling elite will give up their power without a struggle no matter who succeeds.

I, too, hope [...], so the

I, too, hope [...], so the house will become the people's house. And all the judges will become people's judges not the royal judges.

I don't understand. Do you

I don't understand. Do you mean fossil fuels? This has nothing to do with human rights. She's an environmental activist, not a human rights one. There's a big difference. She is being punished for trespassing. So? Maybe she wasn't there. It would be sad if she has been wrongly imprisoned. However, if she was, then that is a crime.
The title is misleading.

Prachatai minus 4 respect points...

The Universal Declaration of

The Universal Declaration of Human Rights makes explicit the rights of citizens with respect to their governments:

Article 20.

(1) Everyone has the right to freedom of peaceful assembly and association.

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

Article 29.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

With regard to the charges of trespass and others, the persons dressed as Supreme Court Judges

...[1]found that the inconsistencies in the testimony of the plaintiffs and the failure of some prosecution witnesses to identify Jintana did not diminish the weight of the testimony... [2]held that since there was no evidence to suggest that the plaintiff had a pre-existing conflict with the defendant, there was no reason to believe the bringing of charges was malicious. [3]Since the defence was unable to provide conclusive evidence that Jintana was not the leader of the group who trespassed prior to the lunch party, the Supreme Court upheld the decision.

Which is to say that despite

  1. conflicting testimony against the defendant
  2. the murder of Mr. Charoen Wat-aksorn, another leader against the coal-fired power plant
  3. the defendant's inability to conclusively prove her innocence of the charges against her

the Supreme look-alikes found in favor of the plaintiff.

The first 'difficulty' alone merits the case's summary dismissal. The second brutally negates the professed inability to 'divine' the plaintiff's pre-existing conflict with the defendant. The third, and most serious offence by the 'Supremes', is their flagrant violation of Article 11, section 1 of the Universal Declaration of Human Rights :

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

Supposition, stated only, of

Supposition, stated only, of lack of malice is the rationale of a f---. Almost every single Thailand-based charge of criminal defamation and so-called insults to character is founded in malice, ignorance, self-buffoonery and knowledge that the Thai criminal justice system works - for the interests of those who have little to no regard for civil or human rights, and who think that dragging things out in court -by first dragging them out in forced coerced appearances before police and prosecutor - resembles justice in any way, shape, manner or form.
Until guilt is proven and innocence is presumed as in a civilized society, Thailand has no right to preach that it has a justice system. It can insist on it and imprison those who think differently, but can't change reality no matter how many centuries are spent trying to do so.

I am not the first to say it

I am not the first to say it but truly, Thailand is a case where the lunatics have taken over the asylum.

...and where the monkies are

...and where the monkies are guarding the bananas...
Common sense, decency, honor and truth have no role here. Even Buddhism is hardly practiced, and much maligned by false teachings and selfish assumptions.

It's not just in Thailand

It's not just in Thailand where corporate/plutocrat goons 'discourage' people from seeking to limit the corporate exploitation and devastation of their health and environment :

Dangerous allegations in the Gulf of Mexico

In July 2010, Aguinaga, now 33-years-old, had gone on a vacation with his wife and some friends to Fort Walton Beach, Florida. After he and his close friend Merrick Vallian went swimming in the Gulf, they both became extremely sick from what Aguinaga believes were chemicals in BP's oil and dispersants from the largest marine oil spill in US history that began in April 2010...

Aguinaga's blood has tested positive for high levels of chemicals present in BP's oil...

"I have terrible chest pain, at times I can't seem to get enough oxygen, and I'm constantly tired with pains all over my body. At times I'm pissing blood, vomiting dark brown stuff, and every pore of my body is dispensing water."

His symptoms mirror those which scores of other Gulf Coast residents have told to Al Jazeera, all of them also having had their blood tests reveal chemicals in BP's oil...

This Spring Aguinaga filed a lawsuit against BP in hopes of obtaining compensation for his deteriorating health... But instead of bringing Aguinaga relief, the process has turned his life upside down.

Within 30 days of filing the lawsuit, Aguinaga had his home in Hazelhurst, Mississippi broken into.

"I found the Norton Security alert on my laptop warning me that someone had tried to access my information, and the door to my house was left open," he explained. "I think somebody wanted me to know they could get in easily."

Aguinaga's employer, Star Services, who had placed him on workers' compensation for a work-related injury, cut off his cheques after he filed the lawsuit against BP.

According to Aguinaga, both he and his wife are being followed, while in early September a truck tried to run him off the road near a bridge.

Three of his four security dogs were recently killed, and the fourth was stabbed...