This article was originally published by Prachatai.
A growing number of Thai activists facing charges for political expression are being tried behind closed doors. In several recent cases, the courts ordered in camera trials and prohibited the publication of information on the proceedings, raising questions about judicial transparency and concerns that defendants were not receiving fair trials. In response, the question of how judicial proceedings should be conducted has emerged as a matter of public discussion.
On 9 July, Thai Lawyers for Human Rights (TLHR) collaborated with Chulalongkorn University’s Social Research Institute (CUSRI) at Chulalongkorn University to organise a panel discussion on “The Courtroom of Secrets and the Principle of Public Trials.” It focussed upon judicial proceedings in Thailand, irregularities in the trials of political activists, and the rights of defendants. The panel featured Somchai Prechasilpakul, a lecturer at Chiang Mai University’s Faculty of Law; Pat Niyomsilp, a lecturer at Chulalongkorn University’s Faculty of Law; Janjira Janpaew, a human rights lawyer; and Sorawut Wongsaranon, a Prachatai reporter. The panel was moderated by CUSRI’s Ekkapan Pintawanich.
Courtroom of Secrets
During a 28 March contempt of court trial against human rights lawyer and activist Anon Nampa, the court prohibited observers when the verdict was delivered. According to Janjira, the trial was initially scheduled in Courtroom 809. However, a court marshal later told Anon’s lawyers that the verdict would be delivered in another courtroom, one normally used for hearing pleas, and that only Anon and one of his lawyers would be allowed in.
In this second chamber, the judge spoke to Anon and his lawyer via a video conference system. Arguing that the trial should be public, Anon objected but the judge insisted on continuing, stating that court administrators had been consulted and that verdicts in several previous cases had been delivered in this manner.
When Anon asked that observers in Room 809 be allowed to come down to hear the verdict, the judge refused. After Anon objected, the judge turned off his microphone and began delivering the verdict. He was forced to sit in front of a camera as the judge read.
Anon was charged with contempt of court after he took his shirt off during a hearing to protest the Court’s refusal to summon documentary evidence in a royal defamation trial against him relating to the 3 August 2020 “Harry Potter” protest. The court claimed that the documents were unnecessary for adjudicating the case.
Highlighting several problems with Anon’s contempt of court trial, Janjira said that delivering a verdict in the second courtroom raised concerns that proper legal procedures had not been followed.
Although the Court did not ordering an in chamber hearing, it prohibited the publication of trial proceedings. According to TLHR, this was one of seven cases in which such an order has been issued and of these, 6 are royal defamation cases.
Noting that the wording of the prohibition was identical in all cases, Janjira speculated that this was unlikely to be a coincidence and instead was more likely a result of court policy guided by Criminal Court administrators.
To build public trust in the law and the justice system, Janjira explained, courts should be consistent and predictable. She added that royal defamation trials were indeed predictable but in a different sort of way – everyone could predict the outcome. She argued that irregularities in such cases should not be accepted, that the courts should “use normal procedure in line with normal principles.”
Explaining the peculiar nature of royal defamation case proceedings, she noted that, at the preliminary hearing in Anon’s contempt of court trial, the judge tried to order a secret trial, telling everyone not involved in the case to leave. When Anon and his lawyers objected and observers refused to go, the judge proceeded with a public hearing.
According to Janjira, when Anon’s lawyers were preparing to file for appeal, the Court refused to give them a copy of body cam footage from a court official present when Anon took off his shirt, on the unusual ground that the material was ‘confidential’.
Janjira also said that when Anon’s lawyers petitioned the Court to set aside the proceeding, arguing that it violated proper procedure, the Court dismissed the motion, stating that it had exercised its discretion to read the judgement openly in the presence of the complainant, the defendant, and the defendant’s lawyer.
Anon submitted letters to the Chief Justice of the Criminal Court and the Judicial Commission regarding his contempt of court trial. So far, none have been answered.
According to Sorawut, such restrictive measures are a significant departure from earlier practices. He began observing trials in cases relating to political expression 10 years ago while working for the People’s Information Center: the April-May 2010 Crackdown (PIC). He recalls that it was easy attend trials at that time. Journalists could simply sit in courtrooms and listen to hearings. Court officials were aware of who he was and what he was doing, and he never had problems with the Court. After a soldier complained that news reports were causing issues, a judge told him and another journalist in the room that they were not allowed to take notes. After they argued that trials should be public, another judge allowed note-taking but said they could not use voice recorders.
Following the 2014 military coup, civilian protesters were tried in military courts. Sorawut recalls that these were more open than he expected, with journalists filling the room during high-profile hearings like the Erawan Shrine bombing case. According to him, things only became more restrictive after cases were transferred to civilian courts in 2019.
Since 2020, it has reportedly become more challenging for journalists to cover court proceedings. When a secret trial is ordered, journalists can only wait outside to interview lawyers. According to Sorawut even public trials have become complicated, as the court often prohibited journalists from taking notes or reporting about the proceedings, especially in royal defamation trials. He also said that a court official once asked him why he was at a hearing, and upon learning that he was a journalist, asked if he had completed a court-approved reporting training. He later learned that being approved to attend hearings meant he would have to write press releases for other outlets – an increased workload. These days, he said, there are so many conditions that a public trial is now the exception instead of the norm.
When exceptions become the norm
The right to an open and fair trial is an internationally-held human rights principle enshrined in the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a state party. Section 14 of the ICCPR states that “all persons shall be equal before the courts and tribunals” and that everyone must be entitled to a fair and public hearing by a competent, independent, and impartial tribunal when facing criminal charges or lawsuits.
Pat explained that, according to the UN Human Rights Committee’s General Comment No. 32, all trials, criminal or otherwise, must be conducted orally and publicly to ensure that the process is transparent, therefore protecting both the individual’s rights and the interest of the whole society. Courts must also inform the public about the time and place of hearings and provide access for those interested in attending.
A judicial system can only survive with public trust, Pat said. To maintain public confidence, he argued, courts must be independent, transparent in their processes, and staffed with qualified professionals. They must also meet international standards, and act with consistency which means later cases should be judged based on earlier cases with similar characteristics. If a change is necessary, there must be clear and strong reasons.
He noted that, according to the General Comment No. 32, a court may order a secret trial only in exceptional circumstances to protect morals, public order, or national security in a democratic society, to protect the privacy of the parties involved, or when publicity is likely to damage justice. Otherwise, trials must be public to allow critical debate and the discovery of truth.
Thailand is supposed to uphold the same principles. The Criminal Procedure Code requires a judgement to be read “in open court” and states that it will take effect from the date of its open reading. As the matter is fundamental, Somchai wondered why it still needs to be justified.
“Do we really have to discuss why a trial should be held in the presence of the defendant and open to the public in 2025?” he asked. “This is something that might have been necessary hundred years ago.”
Somchai suspects that some people misinterpret the concept of a public trial. A senior legal officer that he spoke to during one of Anon’s trials said that a trial is public when held in the presence of the defendant – not necessarily to the public.
“If true, why would you need courtrooms? You could just demolish them,” he said.
In a modern justice system, Somchai explained, the burden of proof falls on the accuser, and a trial should be public not for the benefit of the defendant but for the entire court because the public can then be sure that the procedure is conducted correctly.
He argued that, although the 2017 Constitution does not require that a trial be conducted publicly, the principle remains intact through the Criminal and Civil Procedure Codes. These codes allow only narrow exceptions such as in sexual assault cases for secret trials to be called. In the Thai justice system, these exceptions have become the norm, however.
This kind of inversion also appears in the use of restraints on defendants during trial. Somchai noted that the Corrections Act of 2017 prohibits the use of restraints on defendants, except in clearly defined and exceptional circumstances. However, in the cases of Anon and others, legal officers consistently placed them in shackles, claiming that doing so was necessary to maintain control over the defendants.
Holding the courts accountable
According to Somchai, courtroom procedures have been distorted by royal defamation cases – cases which test the Thai justice system to see if it is fair and strong enough. The current situation also raises questions about whether the Court is independent enough, he said.
He emphasised that without an independent court, it becomes impossible to trust the process or to believe in the verdicts. His demand is simple: “that the Court abide by the rule of law.”
Criticism of the courts helps push for structural changes, but Somchai feels that judicial reform won’t be possible until politics is put back on the right track. Both must go hand in hand.
Sorawut believes that cases like Anon’s suggest that the court has became a party to the conflict. He feels that it does not make sense to refuse to summon evidence for the defendants. He adds that journalists covering royal defamation trials are not reporting about the case itself to begin with and they will be left with nothing to cover if they also cannot report on the proceedings.
“If the Court is confident that it has exercised its discretion in line with the law, or if the reasoning behind the orders it issues make sense, then there is no reason to … order a secret trial, or move the defendant to another courtroom so observers can’t go in, or prohibit report,” he said.
If a judge tried to order a secret trial, observers might protest, Sorawut said, and when the judge could not keep the courtroom in order, they would move the defendant to another room. This puts the court more in conflict with the defendant and the observers, and even with these methods, the Court cannot escape criticism.
He suggests that people attend hearings to see the difference between how a political cases and a non-political cases are handled. In his experience, the problems of observing political cases don’t arise in non-political ones.
He also feels that contempt of court and insult of court charges should be defined more clearly. The contempt of court charge was originally intended to address actions that threaten the proper administration of justice, but its interpretation has been expanded. Even a journalist interviewing a source in the court’s parking lot has been threatened with the charge, he said.
For Pat, the current system has many shortcomings and the Thai judiciary should be brought up to international standards.
“The international system already exists, we must catch up. Even if it is 90 or 100 years too late, it needs to be done” he said.
In Europe, Pat explained, a verdict must be read aloud. This is so that the judicial process is transparent and accessible for public scrutiny. It also leads to openness, allowing critique, and for the court to be held accountable. In Thailand, however, public access to judgements remain limited.
Pat added that building trust is the court’s responsibility. Although the court is indeed disconnected from the public, the public can still hold the court accountable if everyone openly raises the issue together. If society highlights that something is unjust, the Court will have to adapt regardless of what the law says. Laws and internal administration must adapt and evolve accordingly.
He said that if it is eventually found to be unjust, there must be remedies. To address this problem, as members of the public, we must collectively speak of injustices.
Janjira believes that political cases are not driven by financial benefit but are instead set by policy. Judges, in such cases, often follow the prevailing policy. She said that if we want to bring change, we need a system to review whether legal principles have been violate at any level of the judiciary.