Thailand's bail system -- is it made for the rich?
The issue of bail is critically important for Thailand and is especially relevant to the gap between the rich and the poor. It is also emblematic of the chasm between power derived from the coup d'etat and the aspirations of a democratic and just society.
A typical situation is that many accused persons who are poor are not able to afford the sum demanded for bail and land up in jail unjustly and unnecessarily, pending trial. This results in the paradox that it is the poor, not the rich who are in prison. It gives the impression that justice is for the rich and not the poor. It has become all the more sensitive today with the spread of multiple trials facing people who express themselves and or assemble allegedly in breach of national laws.
In essence, access to bail concerns the situation where an accused person seeks to be released temporarily ("provisional release") subject to a promise to comply with the terms of the release, in particular to return to trial, with the deposit of a sum of money as a guarantee.
While there is no universal right to be granted bail, access to bail is part and parcel of international human rights law and access to justice. It is a component of the right to liberty and security of the person and the right not to be deprived of that liberty arbitrarily. Importantly, it is an essential part of the right to the presumption of innocence. The guiding light for Thailand is that it is a member of an international agreement which lays down the rules on the subject: the 1966 International Covenant on Civil and Political Rights.
The authorities should abide strictly by the provisions of the Covenant, in particular Section 9 (1) which states that "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty, except on such grounds and in accordance with such procedure as are established by law." Moreover, Section 9(3) adds: "…It shall not be the general rule that persons awaiting trial shall be detained in custody…". Meanwhile, Section 14 (2) elaborates further that "Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law".
Those provisions thus dictate that deprivation of liberty must not be based on arbitrary decision-making or unfettered discretion and must be based on the existence of a law which has reasonable components in keeping with international standards (the principle of "legality"). Moreover, limitations on rights and freedoms, including freedom of expression and peaceful assembly, are only permissible if the authorities prove that those constraints are necessary in response to the risks (the principle of "necessity") and are proportionate to the circumstances (the principle of "proportionality").
There are various logical considerations for provisional release and the granting of bail without overly stringent conditions. First, if bail is not granted, detention of a person is likely to impede preparation of the case of that accused person and possibly contact with a lawyer. Second, it may lead to more poverty for the person and his/her family. Third, detention tends to exert pressure on the accused to plead guilty.
In the Thai context, bail is regulated by the age-old Criminal Procedure Law. There is also a law establishing a Justice Fund which opens the door to helping both victims and accused persons, also in regard to bail.
In practice, however, there are various anomalies. Basically, the poor are often not able to afford bail, which usually starts at 50,000 baht. This has been accentuated in the case of people who seek refuge or asylum in Thailand who land up in immigration detention and for whom bail is needed for provisional release. The said sum needs to be reduced officially.
Second, an arrest of a suspect on Friday is likely to lead to the person being held in detention until at least Monday, unless a process is expedited to enable contact with a lawyer to access the authorities to request bail. It should not be forgotten that, on the basis of the principle of innocent until proven guilty, people who await trial must be differentiated from those convicted by the courts.
Third, in southern Thailand where various emergency laws are imposed on the population, detention of suspects, difficulty of access to bail and constraints on rights and freedoms have had immeasurably negative consequences in terms of communal alienation vis-a-vis the authorities who are perceived as antithetical to the local community. In real terms, even where bail is available, it is difficult to reduce the high sum imposed for bail once a threshold has been established, and this also results in a sense of injustice.
Fourth, with the spate of cases in relation to freedom of expression and peaceful assembly, there is a question of whether the various prosecutions are justified in the eyes of international human rights law. The various tests of "legality", "necessity" and "proportionality" need to be applied to those cases. The preferred direction is that people should not be prosecuted at all for reasonable exercise of those rights. If there are grey areas to be tried and tested before the courts, the granting of bail should be facilitated and not impeded. Access to bail with reasonable conditions attached should be the rule and not the exception.
Prisons in the country are overflowing. The country has the distinction of having the highest number of detainees in Asean (with an estimate of over 300,000 persons incarcerated).
In addition to access to bail, the country should target more non-custodial measures and a general reform of the criminal justice system, including in regard to excessive incarceration for drug-related offences. Progressively, this would help to ensure "human dignity", a synonym for human rights, as espoused by the Thai constitution.
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He was formerly UN Special Rapporteur, UN Independent Expert and member of UN Commissions of Inquiry on human rights. The article is derived from his presentation at the web-conference on 'Access to Bail', organised by Thammasat University on Feb 22 2021.
Professor of law at Chulalongkorn University
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He has helped the United Nations (UN) in a number of positions, including as UN Special Rapporteur.