Court dismisses motion to release Tiwagorn from unlawful custody, citing the applicant not entitled to do so

Yesterday, 21 July 2020, Mr. Jatupat Boonpattararaksa, aka “Pai Dao Din,” a secretary of the House Committee on Legal Affairs, Justice and Human Rights and lawyers from the Thai Lawyers for Human Rights (TLHR) have applied to the Khon Kaen Provincial Court requesting for the release of Mr. Tiwagorn Withiton from unlawful detention pursuant to Section 90 of the Criminal Procedure Code. The Court has then scheduled a hearing today on 22 July 2020 and was to deliver the verdict at 14.00.

At 15.00 on 22 July 2020, the Court dismissed the Habeas Corpus motion citing that Jatupat is just a Facebook friend of Tiwagorn and has met with him only once. He is, therefore, not considered any other person for the sake of the person in custody.

Our initial observation regarding the dismissal of the motion is how narrow the Court interprets the clause “any other person for the sake of the person in custody” who could be entitled to file the motion to have a person released from unlawful detention pursuant to Section 90 of the Criminal Procedure Code. In this instance, the Court appears to define the persons to include only persons who have familial relationships with the person in custody, i.e., their spouses or relatives. In fact, by providing for the right to file the motion of “any other person for the sake of the person in custody,” the law offers more chances to review the lawfulness of such custody. Given such a verdict, it means the Court has yet to review facts of the case to determine if such custody is lawful.

“Pai Daodin” with the motion to release Tiwakorn

Prior to delivering the verdict, the Court has verbally prohibited every attendee in the courtroom from recording or taking note of the judgment and disseminating the information before obtaining permission from the Court. This instruction applied to attorneys as well. The Court asked us to wait for a copy of the final verdict which will be available tomorrow.

In addition, before the judge’s entrance, six court marshals who claimed to have been affiliated to the Office of The Chief Judge of Region IV asked all seated persons to vacate the courtroom. They claimed that given the sensitivity of the case and how it attracted public attention, they needed to security check the courtroom again. After scouring the room, the officials asked to examine all carrying bags of all persons entering the room.

                               The Motion

The motion to have Tiwagorn released is written based on evidence given by the two witnesses who state that the holding in custody of Mr. Tiwagorn Withiton is unlawful detention based on the following reasons;

1. The reason that prompted the officials to follow Tiwagorn, who wore a t-shirt printed with the text “I have lost faith in the monarchy” in the first place, was not attributable to his mental illness, which has just been cited lately. According to the law, it is clear that the text printed on the t-shirt is not illegal since no legislations have the power to compel a person to have faith in an individual or an institution. Therefore, the police cannot press any charge against Tiwagorn. To hold him in custody, they have resorted to a medical tactic to ensure Tiwagorn is deprived of his right to freedom of expression. Such an act is, therefore, unlawful.

2. According to the Mental Health Act BE 2551 (2008)’s Section 21, treatment may be given only when the patient has given consent. The exception is when the patient is in a threatening condition or requiring treatment or when the patient is incapable of making their own decision. In this case, Tiwagorn can communicate in full consciousness and has the capacity to make his own decision. Neither his behavior appears to be harmful to others, nor his conditions warrant treatment. Therefore, it is necessary that “his own consent must be obtained” not from his relatives or other persons. Moreover, while receiving treatment in the hospital, police officials take turns to keep a watch on him at all times. It does not seem plausible that the treatment has been given to him based on his consent.

In addition, if the procedure is genuinely geared toward treating his illness, there is no reason for the police to take hold of his mobile phone and his personal computer since they have nothing to do with the treatment. Barging into his residence, searching and seizing his belongings without warrants, and holding him in custody, invoking consent from his relatives is the abuse of power per the Mental Health Act. Therefore, this action is considered unlawful.

The motion to the Court states further that to ensure transparency and the exercise of lawful power and prevent the invocation of a medical reason to hold a political dissident in custody, the Court is vested with the power to examine. The Court must scrutinize if holding a person in custody allegedly for treatment is necessary and if it complies with the Mental Health Act BE 2551.

The motion further states that the request for the release of a person from unlawful custody pursuant to Section 90 of the Criminal Procedure Code is based on Habeas Corpus. Habeas Corpus is a significant legal right that guarantees people’s rights and freedom. It ensures that a person shall not be subject to unlawful detention whereby the Court is vested with the power to issue a writ requiring a person under arrest to be brought before a judge or into Court. And if it satisfies the Court that the detention is unlawful, the Court may order the release of the person. The legal right is enshrined in the International Covenant on Civil and Political Rights (ICCPR) to which Thailand is a state party and is obliged to act in its compliance. Thailand’s Constitutions successively recognize such rights, including the present one.

Toward the end of the motion, it states that the judiciary is obligated to uphold justice and protect people’s rights and freedom. Section 90 of the Criminal Procedure Code has been promulgated primarily to protect people’s rights and liberties against an arbitrary exercise of power by the authorities. Section 90 also ensures the availability of remedies for a person who may be subject to unlawful detention due to the abuse of the law, which may inflict on the person unrepairable mental and physical injuries. The applicants, therefore, plead to the Court to summon officials in charge of the custody, including the Director of the Khon Kaen Rajanagarindra Psychiatric Hospital or a representative of medical doctors who is treating Mr. Tiwagorn Withiton, psychologists who examine the patient, the Superintendent of the Meung Khon Kaen Police Station and the Superintendent of the Tha Phra Police Station, to give evidence and bring Mr. Tiwagorn to the Court. And may it please the Court to have him released immediately to set legal precedence and uphold justice.

Read more related stories:

Statement calling for the examination and prompt release on the case of Tiwagorn, who was detained after wearing shirt “I Lost Faith in the Monarchy”

(In Thai) The case of Tiwagorn and problems of the enforcement of “Mental Health Act” and how people are forced to become “patient”