KOH TAO MURDERS – PAGE ONE COMMENT – CAN THE BURMESE HAVE A FAIR TRIAL?

There has been widespread publicity over the forthcoming trial of the two Burmese migrant workers who will be asked today to plead guilty to murder and rape charges relating to the barbaric killings of Britons Hannah Witheridge and David Miller – and also extremely silly ones of entering the country and working illegally something quite clearly the authorities on the island have allowed for years.


A lot has been prejudicial against the police, whose reputation since the arrests of the Central Investigation Bureau chief and other senior officers in Bangkok is at an all time low.

A lot has also been prejudicial against the two 21-year-olds themselves including the ‘I have not come to bury Caesar ‘statements from the parents, released on the eve of the trial.

“For 500 years the West patented six killer applications that set it apart. The first to download them was Japan. Over the last century, one Asian country after another has downloaded these killer apps- competition, modern science, the rule of law and private property rights, modern medicine, the consumer society and the work ethic. Those six things are the secret sauce of Western civilization.”
– Harvard historian Niall Ferguson, Civilization: The West and the Rest
                                                              —————————-

The problem about trials in Thailand is that what goes on in the courts is entirely in the hands of the judge or judges, some of whom clearly have a limited legal background, working to laws which have been re-adjusted against defendants.

Judges do have to pass a test of course, but one can be a judge just by getting a law degree and serving a couple of years in a law firm – even the One Stop Services Centre in Pattaya.  I have been before judges almost half my age in libel cases. Its not that good judges do not exist – they do. But the law is a lottery and changes made from British law appear to deliberately allow for the system to be abused.

Here’s what judges can and may do – but first one should know that no verbatim record is taken in Thai court proceedings. The evidence in chief and cross examination of witnesses are listened to by the judge, who then speaks into a tape recorder providing his summary of what is said.  Many things he simply does not record.

In a recent case where the witnesses was speaking in English my shorthand English note was five times the length of the judges notes and the judge missed out what I considered vital sections of evidence, perhaps because he did not understand.

“There shall be one law for the native and for the stranger who sojourns among you.” Moses (14th Century B.C.).
– Exodus 12:49

That is why at the end of each session the witness has to sign the judge’s summary. All are under pressure to do so. They have waited long enough for the court clerk to type it all out. Objections are frowned upon and many defence lawyers do not want to risk the ire of the judge.

In this age everything could easily be electrically recorded.  In Singapore it has been for more than twenty years.

Secondly although it appears to be written into the law journalists are NOT free to report court proceedings in Thailand.

I have been frequently asked not to take notes having been identified as a journalist in court.  It is not unknown in the south in particular for journalists to be told to leave the court and come back when the judge will hand over his decision – sometimes years ahead in not guilty pleas.

Thirdly journalists are banned, though there appear to be exceptions to this rule, from reporting the case until the case is over, so most of the time they will take the easy option and just wait for the judges’ sentence. Thai journalists are very rarely seen in the courts except at major political and international cases. We read about a lot of arrests – rarely the convictions.

Thai Criminal Law is in the main derived from British Law brought to the country by Prince Rapee something celebrated every year in National Law Day.

But British law insists on the right for journalists to be in court and to be allowed not only to report every cough and spit – but this law dictates that they must provide a contemporaneous report – that means their true account must appear in the next publication or broadcast of their organization, if at all.

But there is one way in this country in which all men are created equal-there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court. It can be the Supreme Court of the United State or the humblest J.P. court in the land, or this honorable court which you serve. Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal.”
– Harper Lee, To Kill a Mockingbird 218 (1960)

British law also dictates there must be a full official record of evidence of all trials.

So how the judges will allow the reporting of this case is vital if justice is to be seen to be done. And of course it is vital in every other case too.

However this allows public scrutiny of which so far Thailand is not a great exponent. To question a judge’s decision carries severe penalties.