“Innocent until proven guilty.”
It is a maxim that appears in textbooks and TV series. Indeed, the presumption of innocence is an important aspect of modern jurisprudence.
As a legal principle, it states that a person accused of a crime shall be considered innocent until proven guilty beyond all reasonable doubt. As criminal law imposes harsh penalties on an individual, taking away one’s fundamental freedoms and sometimes even one’s life, it is imperative that this rule is enshrined in legal systems.
Under Article 11 of the United Nations Universal Declaration of Human Rights, the presumption of innocence is declared as an international human right. Article 14 of the International Covenant on Civil and Political Rights, which Thailand is a party to, states that “everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”
This is given effect in Section 29(2) of Thailand’s 2017 Constitution, which states that “a suspect or a defendant in a criminal case shall be presumed innocent, and before the passing of a final judgment convicting a person of having committed an offense, such person shall not be treated as a convict.”
But in practice, this is seldom upheld especially in political cases. The most recent example of its infringement is the denial of bail – the provisional release of a subject pending trial – to Parit “Penguin” Chiwarak who has posted for it nine times. As an anti-government activist who led the 2020 youth protests, he is being held in pre-trial detention on charges of lese majeste and sedition. In striking acts that stunned netizens, he has protested with a hunger strike and is now hospitalized. Despite the massive deterioration of his health, his bail requests were still unreasonably denied.
This is despite Section 107 of Thailand’s Criminal Procedure Code, which states, in its rough unofficial translation, that the alleged offenders or the accused should be granted permission to be released for the time being […] without delay.”
In Penguin’s case, he is guilty until proven innocent.
What is at stake is not merely the question of bail – which in itself is not a fundamental right – but what it represents. In Penguin’s case, the right to bail before standing trial is fundamentally intertwined with the principle of the presumption of innocence. Should the state punish him before conviction through curtailing his liberty, the principle would mean nothing. It also shows how little Thailand thinks of the rule of law, judicial independence, and treatment of its citizens with fairness and dignity.
It behooves the state to heed this and to put into effect section 29(2) of the constitution they themselves drafted and the international law they claim to adhere to. To restore faith in the Thai judicial system, the court should consider and facilitate bail requests fairly, and give detailed, transparent, and non-political reasons as to their decisions.
Parit’s mother had shaved her head in protest, crying that her son has not received justice, and that he is not guilty. He only thinks differently.
Many would say Parit is crazy to put his life on the line like that, when it offers no benefit to him. But from this act of courage, what he seems to understand is that the hard-won principles he believes in are much bigger than himself, or any one individual.
And he is willing to sacrifice himself physically and mentally for these ideals. As one of the best and brightest in one of Thailand’s most prestigious universities, he had a whole future in front of him. Now the future he faces in front of him is in courtrooms and prison cells.
As protests lose momentum due to the pandemic, Penguin’s act of sacrifice is the flame that has kept the movement going.
Many have argued that his vision is detrimental to society, and against the values that Thailand stands for.
But one does not have to accept his ideals to accept that, by virtue of being a human being, he should be treated the same as people on the other side of the political spectrum, some of whom were granted bail in days. Whether he should be convicted and serve his prison sentence is a matter for another day; as of now, he should be presumed to be an innocent man. He should be afforded the same basic civil rights: the right to bail, the presumption of innocence, and the freedom of expression.
These are the values that Thais should stand for, not just pay lip service to. These are the values that Parit is standing for, and the values that he is starving for.
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