On 16 June 2021, activists receiving legal assistance from Thai Lawyers for Human Rights (TLHR), including Mr. Parit Chiwarak, Ms. Panussaya Sitthijirawattanakul, Mr. Piyarat Chongthep, and Mr. Panupong Chadnok, attended a meeting with the Standing Committee on Corruption and Misconduct of the House of Representatives. During the meeting, Mr. Parit raised his concern regarding the practice of eavesdropping on confidential attorney-client conversations in prison and proposed that the Committee launches an inspection on the Department of Corrections’ conduct.
Later, several media outlets (i.e. Siamrath, Naewna, and Thai Post) posted a news report with the same content, stating, “On 18 June 2021, Corrections Department director-general Ayut Sinthoppan responded to Ratsadon Group leaders’ complaint about being subject to eavesdropping and poor-quality food in prison. As the head of Corrections Department, he said he would like to make the following clarifications: 1. Section 9(5) of the Rules of the Department of Corrections on Visit, Contact with Prisoners, and Study Visit to or Contact with Prison, B.E. 2561 (2018) clearly prescribes that an external party authorized to visit or contact prisoners must consent to have prison officials listen to their conversations, take photos and audio recordings, cut off communication if the conversation is considered inappropriate. Still, Section 18 stipulates that if a lawyer wants to keep the conversation with a prisoner confidential, they must inform a prison official. In the case of Mr. Parit Chiwarak, aka Penguin, his lawyer did not request to invoke this rule. It must be noted that the Department of Corrections has always informed lawyers and family members of prisoners clearly of the rules on visiting prisoners….”
TLHR views that this statement implies an admission that the prison has been using its authority under the Department of Corrections’ rules to eavesdrop and record most conversations between attorneys and their clients in prison; confidentiality is only occasionally permitted as a rare exception. This practice constitutes a severe violation of the right to access counsel per Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Thailand is a State Party to ICCPR and holds legal obligations to comply with its provisions. Furthermore, it contradicts Section 7/1(1) of Thailand’s Criminal Procedure Code, which guarantees the rights of the arrested and suspects in detention or imprisonment to meet and consult with their lawyer tête-à-tête.
In addition, Article 61 of the Corrections Act B.E. 2560 (2017) states, “The prison shall arrange a place for prisoners to have a tête-à-tête meeting and consultation with their lawyer or persons to be appointed as their lawyer as specified in the rules of the Department of Corrections.” This provision ensures the right to meet a lawyer confidentially without imposing any restrictions on such a right.
Furthermore, the Rules of the Department of Corrections on Visit, Contact with Prisoners, and Study Visit to or Contact with Prison, B.E. 2561 (2018), which is a subordinate law, provide separate rules for external parties and lawyers. Section 9 in Part 1 allows the Department of Corrections to record the conversations between the external parties and prisoners. In contrast, Part 2 did not grant the same power in the case of attorney-prisoner communications. Section 19 states that the rules in Part 1 could be enforced mutatis mutandis. Nonetheless, it is still illegal to record attorney-prisoner conversations because that rule violates Article 61 of the Corrections Act B.E. 2560 (2017), whose status is higher than the Department of Corrections’ Rules in the legal hierarchy.
“Eavesdropping on attorney-client conversations does not only violate the right to fair trial and Article 61 of the Corrections Act B.E. 2560 (2017). It also seriously jeopardizes the entire justice system. The statement from the Director-General of the Department of Corrections, which cited Rules of the Department of Corrections on Visit, Contact with Prisoners, and Study Visit to or Contact with Prison, B.E. 2561 (2018), is unacceptable. The right to have confidential access to a lawyer is a fundamental principle of criminal law, which could not be precluded as an exception under any Rules. It also should not be the lawyer’s duty to request for the guarantee of this right.
Therefore, TLHR calls for the Minister of Justice, Lawyers Council of Thailand, National Human Rights Commission, and other relevant agencies to investigate this matter and take steps to amend the said Rules because any persons facing a charge must be entitled to their right to consult with their lawyer confidentially. If the justice system could not guarantee this right, such a failure could adversely impact their ability to fight the lawsuit, hindering their full ability to defend themselves in court effectively,” said Yaowalak Anupan, Chief of TLHR.
Thai Lawyers for Human Rights
18 June 2021