This lesson examines the Thai Office of Witness Protection as a case study, based on the report 'Protecting witnesses or perverting justice?' by the Asian Legal Resource Centre, June 2006.

Thailand is among the few countries in Asia with witness protection legislation. However, as it stands at present, the Thai experience is indicative of the reality throughout Asia: the existence of legislation does not necessarily translate into its implementation, or protection for citizens. On the other hand, if Thailand's fledgling witness protection office is able to do its job effectively, it would be a very useful example for other countries to follow. Towards this purpose, the study examines the structure and content of Thailand's witness protection programme and makes suggestions to overcome its obstacles.
 
A. Thailand's witness protection programme

Witness Protection Act BE 2546 (2003)

Many new laws and institutions were established after the 1997 Constitution of Thailand with the purpose of effecting rights that did not exist under earlier constitutions. The Witness Protection Act is among these. Under the 1997 Constitution

In a criminal case, a witness has the right to protection, proper treatment, necessary and appropriate remuneration from the State as provided by law. [Section 244]

In a criminal case, an injured person has the right to protection, proper treatment and necessary and appropriate remuneration from the State, as provided by law.

In the case where any person suffers an injury to the life, body or mind on account of the commission of a criminal offence by another person without the injured person participating in such commission and the injury cannot be remedied by other means, such person or his or her heir has the right to receive aid from the State, upon the conditions and in the manner provided by law. [Section 245]

These constitutional rights cannot however, be enforced directly in a court of law. Persons seeking to secure their rights must rely exclusively upon enabling legislation.

Witness protection therefore only became a legal reality in Thailand when the Witness Protection Act BE 2546 was passed in 2003. It followed the Compensation for Victims of Crime Act BE 2544 of 2001.

While witness protection may now be a legal reality, at barely eight pages, the Witness Protection Act is little more than a thumbnail sketch of the work of witness protection. It is instead beholden upon the mandated agency or agencies to introduce regulations with which to expand upon its limited contents. A glaring example of its limited contents is that while the Witness Protection Act was introduced to prevent intimidation and threats against witnesses and victims of crimes, at no point is there a definition of 'intimidation' or 'threat'. Similarly, sections 21 to 23 set down relatively light penalties for revealing the identity of witnesses, intimidating them or causing harm or death, but again, key terms such as 'harm' are not explained.

There is, however, a definition of 'witness' in section 3, which is problematic for different reasons:

"Witness" means a person who commits himself/herself to be present at, or testify, or give evidence to a competent official for investigation, a criminal interrogation, a court for criminal proceedings, and includes an expert but not a defendant who himself/herself is a witness. [Unofficial translation; emphasis added]

The exclusion of defendants from the definition of persons who may obtain protection runs contrary to its purposes and is enormously detrimental to the protection of human rights and advancement of justice. Victims of torture, arbitrary detention and other severe abuses in police custody are easily subjected to criminal prosecution based upon forced confessions, doctored evidence and fraudulent record keeping. They are among the persons in greatest need of protection. However, the present Thai law denies them this right.

Not only is this limitation deeply offensive, it is also in violation of Thailand's obligations under the International Covenant on Civil and Political Rights (ICCPR). As a party to the Covenant, Thailand has committed itself to providing redress to all persons who have suffered violations of the rights it encompasses. This obligation stands without regard to other factors, such as whether or not the person is the defendant in a criminal case. It is also contrary to the stipulation of the UN Human Rights Committee, when reviewing Thailand's compliance with ICCPR provisions for the first time in July 2005, that appropriate arrangements be made for investigations of all cases of custodial abuse in Thailand. In fact, the effect of this provision can only be to encourage police to lodge criminal charges against persons they have abused, in order to ensure that they be denied protection.  

Furthermore, the Act does not clearly outline what measures are to be taken to ensure protection or what criteria are to be used in giving protection. In comparison, section 4 of the Hong Kong Witness Protection Ordinance (2000) sets out all the basic criteria to be used in deciding whether or not a witness should be protected:

1.    Whether the witness has a criminal record, which could indicate a risk to the public if the witness were included in the witness protection programme;
2.    If a psychological or psychiatric examination has been conducted to determine if the witness is suitable for the programme;
3.    The seriousness of the offence;
4.    The nature and importance of the evidence or statement given by the witness;
5.    Whether or not there are viable alternative methods of protecting the witness;
6.    The nature of the perceived danger to the witness;
7.    The nature of the witness's relationship with other witnesses being assessed for inclusion in the protection programme; and
8.    Other factors that the approving authority considers relevant.

The procedures that witness protection officers in Hong Kong must adhere to are also set out comprehensively in the Witness Protection Ordinance. For example, section 8 enumerates the steps taken to establish a new identity for a witness. It identifies the public officers authorized to issue the necessary documents to create a new identity, and how they are to proceed.

The Witness Protection Act of Thailand however, fails to consider in detail any of the practical steps and problems arising from witness protection. Section 10 loosely nominates the Witness Protection Bureau--later renamed the Witness Protection Office--to take certain measures, including:

1.    New accommodation;
2.    Daily expenses for a witness and person under his or her care for up to one year, with further three month extensions not exceeding two years;
3.    Coordination with relevant agencies to change the first name, family name, and information that contributes to knowledge of the personal identity of the witness;
4.    Assistance for the witness to continue with a career or obtain training with which to earn a living;
5.    Assisting or acting on behalf of a witness for his or her lawful rights;
6.    Bodyguards for any necessary period of time; and
7.    Any other action to assist and support the witness with his or her security as appropriate.

Nowhere in the Witness Protection Act is there a step-by-step explanation of how these provisions are expected to operate, or who is in charge. There are no universal guidelines on witness protection. There is no guidance on the role of particular agencies. The lack of guidelines leaves the door wide open for disparities in methods of dealing with witness protection, and inter-agency conflict. All this is despite the existence of a discrete body, the Witness Protection Office, established ostensibly for the purpose of seeing the law brought into effect.  

The Witness Protection Office

Among the new agencies set up following the 1997 Constitution, a number were placed under the Ministry of Justice. They are aimed at counterbalancing the established powers of the police and traditionally powerful parts of government such as the Ministry of Interior. They include the Central Institute of Forensic Science, Department of Special Investigation and Department of Rights and Liberties Protection.

The Department of Rights and Liberties Protection houses both the Witness Protection Office and Office for Public Compensation for Criminal Cases. According to the Witness Protection Act BE 2546 (2003), the Witness Protection Office has powers of "coordination and arrangement to obtain results among public agencies and private organizations, where relevant, which would make protection measures effective" (section 13; unofficial translation).

The Witness Protection Act suggests a supervisory role for the office, in conjunction with other key agencies, such as the police. But how does this coordination work? Is there supposed to be a hierarchy of public agencies with the office at the top? The law does not make this clear. In fact, section 13 is the only one that deals with the office specifically.

The lack of detail is compounded by section 5, which stipulates that "the Prime Minister, Ministers of Defence, Interior and Justice shall be in charge of enforcement of this Act and, in relation to their respective Ministries, shall have the power to appoint competent officials and issue Ministerial Regulations and notifications for the purposes of the implementation of this Act". Again, the law gives no guidance on how these ministries are supposed to cooperate, suggesting that in the hurry to put the law into effect hard questions about which part of government should be put in charge were deliberately avoided.

Despite the lack of clarity about the precise role of the office, it is envisaged as the specialized agency for witness protection in Thailand, responsible for seeing the law implemented and further rules and regulations drafted. At present, there are many areas of witness protection awaiting clarification by the office. For example, if a witness dies or is killed while under protection, who is liable? Is it possible to relocate witnesses outside of Thailand? Successful witness protection hinges on answers to such questions. If regulations are not fully developed, the office cannot call upon other government agencies to comply with procedures and implement and promote witness protection schemes.

However, the office has very limited resources and capacity. At the end of 2005, it had only 10 officers, although under existing arrangements it should have been allocated 22. The officers do not have special qualifications or training. Most have been transferred from other parts of the Ministry of Justice, without any criteria applied to assess their suitability for witness protection work. The Witness Protection Act does not offer any guidance on who should be recruited to the office. There is no formal training for officers once they are recruited. In short, the small cadre of officers also lack professional qualifications and skills specific to the job.

With 10 unqualified staff for the entire country of some 65 million, the Witness Protection Office must rely upon seven other agencies to offer protection:

1.    Royal Thai Police;
2.    Royal Thai Army;
3.    Bureau of Internal Security Affairs, Ministry of Interior;
4.    Department of Special Investigation, Ministry of Justice;
5.    Department of Corrections, Ministry of Justice;
6.    Office of the Narcotics Control Board, Ministry of Justice; and
7.    Department of Youth Observation and Protection, Ministry of Justice.

Like the staff of the Witness Protection Office itself, most officials from the seven agencies have little or no expertise in protecting vulnerable witnesses and victims. Most know only how to interrogate suspects and detain convicts. When approaching witnesses, many use the same methods of aggressive inquiry and forced confinement, leaving the witness or victim feeling like a suspect. Some witnesses complain of having been followed at any time of day or night by the 'protecting' officers, making them feel even more vulnerable and intimidated than before.

After it was established in 2004, the Witness Protection Office began by introducing the concept of witness protection to police officers from all nine police regions across Thailand. One employee from the Department of Rights and Liberties Protection was sent to each of the country's 76 provinces to meet representatives of the seven agencies there. Among the seven, the key agency is the police. In view of the fact that the police in Thailand are the main perpetrators of human rights violations, this is a great flaw in the current arrangement. In fact, it completely undoes the entire notion of protection.

Police

In principle, the Witness Protection Office protects witnesses in Thailand; in practice, the police are in charge. As the Royal Thai Police have the men and national reach, it is taken for granted that they have the capacity to protect witnesses, if they wish. Out of the approximately 130 persons that have been under witness protection since the Witness Protection Act was passed, around 90 per cent have been protected by the police.

Rather than question whether the police are suitable persons to offer protection, the Witness Protection Office has instead chosen pragmatically to concentrate on training them. Although short on experience, its officers are conducting programmes with senior district-level police, who are then expected to train their subordinates, and so on. Subsequently, the office will concentrate on staff in the six other agencies.

The Witness Protection Office cannot order the police to protect someone. When the office refers a case to the police, they may choose to accept or reject it. The office has no power to contradict a decision by the police. It can only protest, or request another part of the police or another of the seven agencies to protect the witness. However, the remaining six agencies will only act on specific cases that are already part of their respective mandates. For instance, the Department of Special Investigation may consider giving protection to a witness in a case that it is investigating, and the Department of Corrections will only take up cases concerning prisoners. Again, these agencies act at their own discretion, not under any obligation.

Once a case is accepted by the police, they have complete control. They decide when protection is offered, how it is offered, and when it ends. The Witness Protection Office has no input, contrary to its stated role as 'coordinator' of the relevant public and private agencies involved in making the protective measures effective. Once a witness is referred to the police, the office can do little more than contact the concerned officers from time to time to request basic information about the person's wellbeing.  

Thus the existing provisions for witness protection in Thailand contain a startling and enormous contradiction. The express purpose of the Witness Protection Office being established outside the police force was to bring a degree of civilian oversight over the protecting of victims and witnesses. However, the direct consequence of the existing arrangements has been to hand virtually all of the real authority for protection directly to the police.

In cases where the office has been asked to give protection against police from particular areas, it has sought the assistance of national-level police agencies, or those from other regions. However, this is usually only a short-term arrangement that leaves the witness feeling far from satisfied.

Contrast this arrangement with what has been established in Hong Kong. Under the Witness Protection Ordinance there, both the head of the police and the head of the Independent Commission Against Corruption (ICAC) have the power to institute witness protection measures. Witnesses in criminal cases involving corrupt and illegal actions by state officers, having complained to the ICAC, may seek protection from its own independent Witness Protection and Firearms Section. The ICAC then takes direct responsibility for protection. It does not rely on outside agencies, and can control all aspects of protection as set out in the ordinance, independent of the police.  

Thailand does not yet have any independent investigative agencies like the ICAC upon which the Witness Protection Office can call for assistance. However, there are many interim alternatives that remain untried for lack of political will. The government could, for instance, attach a discrete armed unit to the office, give it special training and make it answerable to the ministry. Whatever the case, steps need to be taken to remove control of witness protection from the police: this is by far the biggest weakness in the current arrangement, and the one that undermines the very principles upon which it was founded.

How to get protection in principle

It is not easy to get protected. To begin with, the Witness Protection Office must receive a request for protection, from the witness or a concerned person, in order to begin its work. But the office is little known. The extent of its publicity to date, apart from some leaflets, has been in the form of 'crawling text' at the bottom of television screens during news broadcasts. Far more needs to be done to raise its profile, especially to ensure its prompt intervention in emergency cases.

A witness can also approach the police or any of the seven agencies involved in witness protection directly. Any one of them can offer protection without the involvement or knowledge of the Witness Protection Office. The only requirement is that they do so in accordance with the general provisions of the Witness Protection Act.

If the office receives a request for protection, it usually proceeds as follows. 1.    A witness protection officer ascertains whether or not the situation is critical. If so, the police are contacted immediately. If not, the officer takes several days to examine the case and decide how to proceed. 2.    If protection is offered, the witness or victim is asked to give written consent, by way of a form. Four persons are entitled to have access to these documents: the witness protection officer responsible for the case, the director of the Witness Protection Office, and the Deputy Director-General and Director-General of the Department of Rights and Liberties Protection. 3.    The witness protection officer then contacts the police, starting with the superintendent of the district where the witness is residing. He is asked to allocate a team of officers to protect the witness or victim. Under existing regulations, this arrangement can continue for up to 21 days. After this, the commissioner of the region can order up to a further 60 days protection. Beyond 81 days, it is necessary to obtain approval from the police commissioner-general, for whatever period of time he sees fit. 4.    Once the police have agreed to give protection, the case is in their hands. They decide the duration and manner of the protection. Under any circumstances, they will cease giving protection when the trial in which the witness is appearing has concluded, when the threats and intimidation are perceived to have ceased, or if the witness dies.   5.    The witness protection officer has a 'hotline' to the police officers in charge of protecting the witness. The officer can ask about the health and other circumstances of the witness, but answers depend on the willingness of the police to cooperate.

One glaring problem arising from the above is the artificial deadlines imposed by the police while giving protection. Cases may take years to pass through the courts, and the need for protection may in some instances extend well beyond the conclusion of a trial. While the Witness Protection Act envisages long term protection of this sort, at present the police offer only short term security, except in rare cases where the head of the police force intervenes.  

B. Protection in practice

The following are a few persons who were given protection by Thai authorities.

I. Angkhana Neelaphaijit: Wife of disappeared lawyer

Angkhana Neelaphaijit is the wife of prominent human rights lawyer Somchai Neelaphaijit, who was forcibly disappeared on 12 March 2004. Five police officers, four of them members of the powerful Crime Suppression Division, were charged in connection with his abduction. On 12 January 2006 one was sentenced to three years in prison. The court acknowledged that Somchai had been abducted. The prime minister and others have acknowledged that the perpetrators were police. The Department of Special Investigation is continuing inquiries, but Angkhana has doubted its sincerity, and especially that of its director, whom she has urged to step aside from the investigation.

Angkhana has advocated strongly for justice. She was also a joint plaintiff in the criminal case against the five accused, against the wishes of the public prosecutor. As a result, she has been a target for threats.

On 18 April 2005, Angkhana received a telephone call from a man whose voice she recognized as that of a government intelligence officer. He asked about her interventions in the United Nations. Shortly after, another man approached her near her house and warned her against any high profile advocacy on her husband's case, such as going on television or making other public statements.

After strong interventions and publicity of the threats, the then-justice minister ordered that Angkhana be given protection. The Witness Protection Office organized for two police officers from the Metropolitan Police Bureau to protect her from the next day. Angkhana agreed to protection for an initial two months.

The two police officers, both men, came to Angkhana's house. They did not appear to have clear orders or a good understanding of what to do. They thought that they would stay in the house; Angkhana refused to allow them to stay with her however, so they rented accommodation nearby instead. Each day they patrolled around the house. At night they stayed at their accommodation, but called frequently to check that everything was alright. When Angkhana complained about the manner of giving protection, one of the officers apologized, saying that they had not been given an assignment like this before and that they lacked detailed instructions. In short, they did not understand what they were supposed to do.

Angkhana's husband had been abducted by the police, and she had sought protection from the perpetrators or their associates. Not surprisingly, she felt more insecure with the constant presence of the police than she did without them. Neighbours and friends stopped visiting the house. Her family also felt intimidated. The police wanted to know the phone numbers and movements of her five children, four of them young women. When she met the prime minister, she asked him directly if her phone was being tapped, and he did not deny it.

When the two-month period was finished, Angkhana declined to renew the witness protection, as she felt harassed and burdened by the police. She obtained the assistance of colleagues and made her own private arrangements for security.

On 21 March 2006 Angkhana was again threatened by the same man who approached her in 2005, at a time that she was working with the Central Institute of Forensic Science on possible locations of her husband's remains. The man warned her not to go out or she might have an accident or find a bomb under her car. She did not seek any protection from the government, saying that it would not do any good. Other threats also she has not reported for the same reason.

II. Chaweewan Yuthaharn and Adirake Yimwadee: Eyewitnesses to forced disappearance

Chaweewan Yuthaharn and Adirake Yimwadee were eyewitnesses in the case against the five police officers accused in connection with the disappearance of human rights lawyer Somchai Neelaphaijit. Ultimately, it was on the basis of their testimonies that one of the five defendants was convicted on 12 January 2006.  

Both Chaweewan and Adirake very reluctantly approached police investigators to tell what they saw, and said that they were told that they would only have to give a testimony at the police station and would then be allowed to go home. Neither of them had expected that they would have to testify in open court. Had they been aware of this, it is highly unlikely that either of them would have come forward in the first place.  

Chaweewan, a young woman, initially told the investigating officers that she had clearly seen the abduction, and positively identified the one defendant who was later found guilty. But in court on 25 August 2005 she refused to identify him when he sat before her. She was visibly afraid and looked straight ahead at the bench, or downwards. When asked repeatedly to try to identify the accused, she only snatched glances at him and immediately looked downwards again.

Adirake similarly refused to respond to many questions in the court. When asked by the judge if he was aware that he could perjure himself by denying his earlier testimony, he neatly described his dilemma by saying that as the police were both investigators and defendants in the case, he was afraid of each side.

Chaweewan and Adirake felt very vulnerable when appearing in the court not only because of the persons they were testifying against but also because of the court procedure and layout.

Witnesses in Thailand sit on benches outside the court waiting to be called. There is no special waiting room or other arrangements for them. If the defendants are on bail, they can enter and leave the courtroom as and when they like, each time passing by the witnesses. Court observers also come and go. On the days that the eyewitnesses appeared in this case, there were many police present as observers. Others were milling around downstairs. The large number of police appears to have been organized to intimidate the eyewitnesses with their presence, as they were not there on other days. They also went to and fro freely. Even at lunch time, no special arrangements were made by the court for protection of the witnesses. Some human rights monitors attending the court sat with Chaweewan in the cafeteria.

Once in the courtroom, the witness is sandwiched between the prosecution and defence, facing the judge. The courtrooms in Thailand are generally small, and the witness is seated within two to three metres of bailed defendants, in full profile view. There is no physical barrier separating the victim or witness and the defendants. Nor is there any special security in cases where the defendants have posted bail.

Both Chaweewan and Adirake were also asked by the prosecutor to watch video tapes that they had used to identify the defendants, which were played on a laptop computer that had been brought to the court by a police officer and set on a small table behind the witness's seat. Each had to turn around and face the assembled court observers, which included the many plain-clothed police and other supporters of the defendants, to watch the video. Chaweewan was visibly unwilling to comply, and the sequences were played over. Lawyers and defendants got up and milled around behind her. At one point, observers were also invited in to take a look. A crowd gathered around behind the witness, with people talking and moving here and there as they pleased.

By contrast, in many other jurisdictions around the world, the defendants are not allowed to come and go during the hearing, and are not entitled to speak unless permitted by the judge. Also, the witness stand is kept at the furthest convenient point possible from the defendants, and the two are separated by court staff, lawyers of both parties and other persons involved in the court process. Security personnel are also assigned should the defendant or another party to the case become violent or try to leave illegally

In some jurisdictions, screens may be placed around the witness box, or the witness may give testimony through a live video link from an adjacent room, and chief testimony can be given by pre-recorded video.  

At present there is little in the judicial procedure of Thailand to protect the rights and interests of witnesses in court. The Criminal Procedure Code contains some provisions for children to give testimony through a social worker or video, but no equivalent provisions exist for adults. Under section 237 bis it allows for the prompt recording of testimony in cases where the witness "will depart from the Kingdom, has no habitual residence, or has residence far from the Court of trial, or there are reasonable grounds to believe that he will be tampered directly or indirectly". As the prompt recording of testimony should be a basic principle in all criminal trials, this provision is not remarkable. And as the section allows for a defendant to cross-examine such a witness himself, except in offences punishable with death, it may compound the abuse that has already been caused by allowing for the possibility that a police officer can stand in front of a person whom he has humiliated, beaten, electrocuted or raped and ask intimidating questions in order to escape prosecution.

Despite the fact that Chaweewan and Adirake were appearing in a reputed human rights case and giving information to the court that could send ranking police officers to jail, there was complete disregard for their security. Chaweewan travelled to and from the court unescorted and by bus. Only after this was communicated to the Department of Rights and Liberties Protection, was an officer from the Witness Protection Office dispatched the following day.   

Although the presiding judge sensed the fear of the eyewitnesses, especially Chaweewan, a young woman forced to sit in front of five glowering ranking police officers in a male-dominated courtroom, little was done to adequately protect them and make them feel comfortable in court, in the interests of fair trial. In apparent response to Chaweewan's discomfort, the presiding judge ensured that in addition to two female assistant judges, another senior woman judge joined the bench in the afternoon. However, this was the only notable concession made in response to the witness's obvious distress.

In reaching a verdict based on Chaweewan's testimony, the judge acknowledged that she had been afraid while in court and therefore relied upon the investigation records submitted by the prosecution rather than what she and Adirake said in court. However, this judgment opens many avenues for appeal by the one defendant found guilty and only reinforces the fact that the lack of witness protection undermines due process, threatens the integrity of the courts, and encourages impunity.

What more could the court have done? Certainly there were times when the court could have been better managed to better respect the interests of the witnesses. However, beyond that there appear to be few avenues for judges in Thailand to give orders or take action in response to a fearful witness. The generic model offered by the Witness Protection Office allows for a witness to request protection from the court and for the court to notify the relevant agencies to take the necessary steps. However, again there appear to be no specific criteria for the court in determining whether or not to accept a request, and judges in Thailand show little sensitivity to the security needs of witnesses coming before them.

By contrast, in other jurisdictions where the court is satisfied that the quality of evidence given by the witness is likely to be diminished for reason of fear or distress, special protection can be given. This may depend upon the importance of the witness's evidence, severity of the alleged offence, age of the witness, and behaviour towards the witness by the accused, his family or associates. Were such criteria available to courts in Thailand it seems certain that the eyewitnesses to the abduction of Somchai Neelaphaijit would have been given some kind of additional protection, although under the current circumstances this would have inevitably entailed further police involvement.  

III. Phra Kittisak: Police decide

Phra Kittisak Kitisophon has been involved with the Mettadhammarak Foundation, which aims at promoting Buddhism by supporting community activities related to education, preserving the environment and local forestry. Phra Kittisak and Phra Supoj Suwagano were supporting villagers involved in land disputes and trying to protect community and temple forest nearby their Buddhist training and studies centre in Chiang Mai province. Members of the foundation have been threatened in the past, allegedly by local influential businessmen. In March-June 2005 there was an attempt to develop the land into rubber plantations, which the foundation fought.

On 17 June 2005, Phra Supoj was stabbed to death in the forest 300 meters away from his temple accommodation. Subsequently, Phra Kittisak also began receiving death threats. The temple worker who first found Phra Supoj's body was harassed by local police nightly. After she moved away from her house to escape them, it was burned down.

Phra Kittisak sought protection three days after Phra Supoj was killed. The Witness Protection Office was given responsibility, and it contacted Phra Kittisak. Although the Department of Special Investigation was put in charge of the murder case, it did not offer protection on the ground that it did not have enough personnel. The office suggested that it organize protection by local police (Police Region 5), but Phra Kittisak refused as he believes that local police were involved in the killing. So instead he said that he wanted the Bangkok-based Crime Suppression Division to protect him.  

The Crime Suppression Division provided four officers from June 25, for one month. It then withdrew the officers, saying that they were no longer needed. After the foundation requested further protection, the police were reinstated a couple of days later, until October 18.

The four officers sent were young and did not seem to know what they had to do. They had had no special training. They waited for advice from their superiors. Initially there was mistrust between the officers and the monks. The police were sceptical about whether the witnesses really needed protection. But by October they were more sympathetic.

Since October Phra Kittisak has had no protection, despite continuing to receive threats. Both the Witness Protection Office and Department of Special Investigation have supported his requests for further protection, but the final decision is in the hands of the implementing agents, the police, who are unwilling to commit officers for a long time.

IV. Anek Yingnuek: Defendant not witness

Anek Yingnuek was arrested by officers of the Phra Nakhon Si Ayutthaya Police Station on 9 September 2004 on charges of robbery. At the police station, he was allegedly tortured for several hours. The police allegedly beat him with a PVC pipe and suffocated him with plastic bags. They also allegedly electrocuted him on his penis, testicles and other body parts. Three of Anek's friends were also allegedly tortured, and charged. At least one of the officers was later implicated in the torture of another victim, Ekkawat Srimanta. During the trial, Anek and his friends testified in court that they had been tortured; the judge however, ruled that the testimony was irrelevant on procedural grounds. Despite the plausibility of the allegations and severity of the said torture, no investigation is known to have been conducted.

As Anek and his friends were made criminal defendants due to forced confessions, they are disbarred from seeking witness protection under the existing law. Yet by speaking out in court they risked reprisals. As in other cases in Thailand, the court showed no sensitivity to this danger. The only path that lies open to them in the event of threats is to seek assistance from their custodian, the Department of Corrections.  

Anek's relatives, including his mother, are also isolated and unprotected, despite living in the same vicinity as the police accused of torture. Anek's mother has been the most active among the family members in fighting for the rights of her son, and it was she who first lodged the complaint of torture. At least one relative of another victim also complained at that time, offering a similar account of abuse and thereby strengthening the credibility of the complaints. In January 2006 the relatives were sued by one of the police officers over a small report in a newspaper about their complaints. They are now subject to criminal defamation charges and have been forced to present themselves and have the cases documented at the local police station.

C. What needs to be done?

The government of Thailand claims to adhere to the ICCPR and have in place a constitution that protects those rights. It can point to the existence of a law, and an office, for witness protection. But the law is deficient, the office is understaffed, the police continue to run the show and victims and witnesses of gross human rights abuses are not in fact protected.

Both international law and the national constitution can be made good only through effective domestic laws and institutions. The means exist to make Thailand's witness protection scheme a reality. So what can be done?
 
The Witness Protection Act must be better defined
Key words in the legislation need to be clearly defined. What is 'intimidation'? What is 'harm'? Who is a 'vulnerable witness'? For this purpose, witness protection laws in other jurisdictions, such as Hong Kong, should be studied and discussed.

Defendants must be entitled to protection
Among the most vulnerable and important witnesses--and perhaps some of the most common in Thailand--are criminal defendants who allege that they have been tortured or threatened into making a confession by the police. It is essential that the Witness Protection Act be amended to cover these persons, whether or not they are in custody. In this respect, Thailand must ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which will pave the way for necessary administrative and legal reforms across the board to punish torture perpetrators and protect victims, where they are defendants in criminal cases due to extracted confessions.  

There should be criteria for offering and giving protection
Witness protection officers are forced to make arbitrary decisions and use their own initiative for want of explicit criteria on who does or does not deserve protection. Once protection is offered, the lack of defined procedures for giving it hampers effective intervention. The act must include details of certain key procedures. For example, how does a witness get a new identity? Which other agencies need to be involved? How can protection be given immediately, in emergency situations? Developed witness protection laws in other jurisdictions should be studied and adapted to suit conditions in Thailand. Once basic criteria are laid down in law, they can be amplified through additional regulations and guidelines.

The Witness Protection Office must be given explicit power
The role of the Witness Protection Office is at present captured in a single section of the Witness Protection Act. The law says nothing of how it is to be run, its functioning and responsibilities. Above all, it says nothing of the relationship of the office with other government agencies, especially the police. The act must instead specify the powers, role and functioning of the office and its staff. The office should be given managerial and administrative power over witness protection. Where the office is not able to give protection itself, it must be entitled to enforce its directives to the police and other agencies, including through legal action where there is refusal to comply. It must be entitled to be fully informed of all steps taken in compliance with its directives by other agencies.  

The Witness Protection Office must be given more staff and resources
Thailand has over 200,000 police but at present only 10 staff assigned to witness protection, with paltry funding. Until this massive imbalance is corrected it is obvious that there will be no possibility for the office to play any kind of significant role, and it will be forced to continue to rely on the police and other outside agencies. The Minister of Justice and cabinet must take personal responsibility to increase the staff and resources assigned to the Witness Protection Office. To this end, the ministry should advocate vigorously for a greater allocation out of the national budget. In the longer term, attention should be paid to separating the office from the ministry and running it as an independent agency.

Witness Protection Officers must be given rigorous training
Witness protection officers are being recruited from other parts of the government bureaucracy. They must be carefully selected according to specific criteria. Once in their new jobs, they must have rigorous specialized training. Only then will they be in a position to offer effective protection to witnesses, and extend what they have learnt to personnel in other agencies.

Legal and medical professionals should also be trained on witness protection
Very often the first persons to have contact with victims and witnesses in need of protection are public prosecutors and other lawyers, or doctors and other medical staff. There should be special efforts to inform these persons on witness protection, and incorporate them into relevant procedures. A doctor treating a person who has allegedly suffered torture, or a public prosecutor who has been assigned to their case should know to contact the Witness Protection Office without delay, and make arrangements for staff from the office to visit the person immediately. Lawyers should be able to explain to a client about witness protection and advise whether or not the client should request it. Judges should be taught to identify cases of possible torture or intimidation and be given explicit powers to take additional steps to protect the rights and interests of the accused, including by ordering independent physical and psychological examinations before a defendant is released on bail or detained to await trial. Professional associations such as the Lawyers Council of Thailand can play an important role in advancing knowledge of witness protection among their members.

Courtrooms must be modified to protect witnesses
The witness stand in Thai courtrooms needs to be moved as far as possible from the defence and prosecution benches. Legislation should be introduced or amended to allow for special measures in cases where witnesses are already under protection or are otherwise deemed vulnerable. Simple low cost measures include the placing of screens to conceal the witness from most of the courtroom, or giving of evidence via live link from a third location. Judges should also be trained to identify witnesses whose testimony is obviously damaged due to fear, and take necessary steps to intervene, including by postponing testimony and seeking intervention from the Witness Protection Office. Again, the government of Thailand can study measures taken in other jurisdictions.

More criminal procedures must be introduced to protect witnesses
Other legislation needs to be amended and developed to complement the Witness Protection Act, such as the Criminal Procedure Code. This must include more express provisions on the penalties for intimidating witnesses, and criminalizing acts that obstruct the course of justice.

The public must be better informed about witness protection
The public needs to know about witness protection in general, and the Witness Protection Office in particular. As both a new concept and a new agency in Thailand, without a concerted effort at raising public awareness, the witness protection scheme will remain anonymous. In particular, intervention at critical moments depends upon persons outside of the office requesting its assistance. The government of Thailand must increase the amount of resources and airtime on television and radio stations for publicity of the Witness Protection Office and the importance of witness protection for the entire criminal justice system. Attention must be paid to getting the information to particularly vulnerable groups, such as the large number of migrant workers in Thailand who are easy targets for abuse by the police. Human rights groups, such as the National Human Rights Commission of Thailand, should also play a key role. Similarly, the media, academics and other concerned agencies can raise discussion at home and abroad that may impress upon the government a greater sense of its obligation to ensure that witness protection be made a reality in Thailand.

Although Thailand has introduced a law and discrete agency on witness protection, these are yet to make witness protection a reality. Little has changed. Protection measures are arbitrary and few. The police are in control. It is perverse to expect a victim of police torture, a wife of a person abducted by state officers, or a witness of an extrajudicial killing to rely upon the police for their security. At best, the present arrangement does nothing more than create a cruel expectation that such a thing as "witness protection" exists. At worst, it expands the capacity of the police to commit abuses and damage the work of the courts by entitling them to take charge of a scheme over which they should not have responsibility.

It is likely that if the Witness Protection Office is not given the support and attention it needs, it will become nothing more than a de facto agency of the police. If that happens, it will be a failure. If, by contrast, the office is made into a strong and independent working entity, through improved legislation and ample resources, it may become a lesson for other countries in the region. There are many other countries in need of a good example. And the advancement of witness protection will also do much for the improvement of Thailand's international reputation on human rights, which in recent years has suffered considerably.

The government of Thailand has the resources to make effective protection of victims and witnesses a reality. It has an obligation under the national constitution and international law to do the same. Whether or not it has the willpower depends largely upon the extent to which attention is paid to the importance of effective independent witness protection by outside agencies, and discussion is raised among the public. All concerned persons and agencies in Thailand and abroad, especially human rights defenders and their organizations, should play a part in creating a public debate on witness protection.

Thailand's institutions have historically worked to protect the perpetrators of human rights abuses. To have them protect the victims instead is no simple matter of a law and an office. It will require much more than this. But as the struggle is on in earnest for the rights of the ordinary person against the power of the influential person, the interests of the private citizen against the authority of the state agent, the principles of constitutionalism against the brutality of feudalism, the time is right. All concerned persons and organizations must recognize that effective witness protection is integral to the functioning of the courts and the guarantee of justice, and therefore to work for the changes needed to make it a reality in Thailand.   

Questions For Discussion

1.    Discuss the strengths and weaknesses of Thailand's witness protection programme.
2.    Are you aware of any other national witness protection schemes in other countries? If so, compare these to the Thai one.
3.    What are the key factors needed for witness protection to be effective?
4.    Discuss initiating such a scheme for your own country.