Thailand Not Bound by International Treaties
Document to Appeal Court
12th October 2009
Judgement on the case of Malcolm Denis Lim, Plaintiff,
and Corrections Department, Defendant.
Concerning the judgement of the Administrative Court that the use of shackles in Klong Prem prison is an illegal abuse of the Plaintiff and the order to remove the shackles within 30 days, the Corrections Department does not agree and submits the following appeal document:
1. The document quotes the Corrections Department Act of 1936, listing the five exceptions when shackles may be used. See p.3 above:
The document refers to the discernment of the prison in deciding that the use of shackles is necessary to prevent escape. The facts relating to the prisoner should be considered, but also the conditions of the prison, the level of security, the number of prisoners, and the number of prison officials. From such considerations the defendant considers that the free circulation of the prisoner would entail the danger of escape, and that therefore shackles are necessary.
2. The document recalls the disciplinary offense of the defendant while in custody in Bambat prison, of being in possession of a type 2 drug, showing the propensity to re-offend and possibly unite with others to escape.
3. While Building 2 of Klong Prem prison is specially dedicated to the confinement of those imprisoned on account of serious crimes, there are problems with the level of security. The number of persons detained there is 787, including 40 persons condemned to death, 438 to life imprisonment, and another 309 persons. Many quarrels occur in this group and they use telephones which are frequently smuggled into the prison, so that there is a possibility that prisoners may conspire to break out and escape. Regarding the number of warders; during working hours there is one warder to 41 prisoners. Due to possible absences or special tasks requiring warders to accompany prisoners, the ratio is further reduced. At night time there is one warder for 196 prisoners. By UN standards the ratio of warders should be 1 to only 5 prisoners. In these circumstances there is reason for the exceptional use of shackles allowed in Section 14(1) and 14(3) of the Corrections Department Act, 1936. If the order to remove shackles from one person is made, others will make the same plea as the plaintiff. When they too are released from shackles, the prisoners can join together in causing trouble, join in protest, attack warders, and cause damage to prison property, as is regularly reported.
4. Regarding the argument of the Court that even if the prisoners held in Building 2 were to escape, they would still be within the confines of Klong Prem prison, the defendant responds that if the prisoners held in Building 2 escape, prisoners in other buildings will follow their lead and chaos will spread throughout the whole prison, leading to possible casualties among both prisoners and staff of the prison. Similar revolts can spread to other prisons. This outcome always follows within days as news media spread accounts of such events, resulting not only in escapes but in violent clashes and increased violence when prisoners can move about freely. Prison officials who warn the prisoners may also be attacked, as prisoners already condemned to death cannot be subject to a higher punishment for their criminal acts. Officials who supervise Building 2 are very aware of the danger which would ensue if shackles are removed, and fear for their lives in the service of their country.
5. Regarding the judgement of the Administrative Court that the Corrections Department must act according to the UN Minimum Standard Rules for the Treatment of Prisoners, the Universal Declaration of Human Rights, and the International Convention on Civil and Political Rights, may we point out that these documents refer to international agreements and are only legally binding in so far as member countries draft them into their own legal systems, which is not yet the case in Thailand. Hence the Corrections Department is not bound by these agreements
6. Regarding the judgement of the Administrative Court that the fact that the Corrections Department claim that it is not yet ready on account of the buildings involved, the security system in place, and the strength of the workforce in the prisons, is injurious to the plaintiff, we point out that the Corrections Department aims and is determined to conduct the prisons in the most natural manner possible, but in a way that maintains conditions of penal detention and the corrective treatment of those imprisoned. But the available budget, the size of the workforce, the state of the buildings, the technology of controlling inmates, and the system to protect security are all limited. At the same time, the number of prisoners is increasing as well as there being an increase in the number and novelty of ways of evading laws and regulations. The Corrections Department continually strives to overcome such problems. However, as not all the problems can be solved, some difficult compromises must be made between the facilities which the prisoners should enjoy (such as freedom of bodily movement) and secure public order, the safety of personnel and property. The use of shackles must be considered. However, if prisoners wearing shackles are injured or show symptoms of injury, medical opinion may order the immediate removal of the restraints.
7. Regarding the judgement of the Administrative Court that the use of shackles is against the document of the Corrections Department of 10th June 2005, section 3, which forbids the use of shackles as a disciplinary punishment, may we point out that Klong Prem Prison did not use shackles as a disciplinary punishment. The truth of the matter is that the Plaintiff was in possession of a type 2 narcotic while detained in Bambat Central Prison showing that the behaviour of the Plaintiff was not according to civil law or prison regulations, and revealed a tendency to re-offend and possibly harm others or make an escape.
8. The Corrections Department wishes to assert that if the Plaintiff holds that the Corrections Department has illegally abused his rights on account of the order by Klong Prem Prison to shackle him according to Article 14 of the Corrections Department Act, he should have appealed against the order, according to Article 44 of Corrections Department Administrative Procedures of 1996. If he has not made such an appeal, he does not have the right to bring the present case, according to the Supreme Administrative Court ruling 186/1966.
In addition, the Corrections Department wishes to submit a further document for the consideration of the Administrative Court. The Corrections Department asserts that its treatment of the Plaintiff has been just and legal, and requests that the Court of Appeal repeal the decision of the Administrative Court.
(Additional document referred to at the end of the appeal, is a summary of five prison revolts which occurred in various prisons within the previous year, which led to 3 deaths, many injuries, and damage to prison property}