Written by Khanakorn Phienchana
Translated by Tyrell Haberkorn
Illustrated by Summer Panadd

[คลิกที่นี่เพื่ออ่านต้นฉบับคำฟ้องของคณากร เพียรชนะ]

Scheduled to read a judgment in a case in which he was the presiding judge, Khanakorn Phienchana walked into a courtroom in the Yala Provincial Court on the morning of 4 October 2019. But rather than proclaiming the guilt or innocence of the five defendants in the case, he indicted his superiors and the Thai judiciary. In twenty-five typed pages formatted on official paper with a garuda looming at the top of the first page, Khanakorn detailed interference from his superiors in this and other cases in order to raise a series of questions about the meaning of justice and the role of judges in Thailand. After he read the declaration, he lifted up a gun and shot himself.

But Khanakorn did not die on 4 October 2019 and so his declaration did not double as a suicide note. He was charged in a criminal case and an investigation committee was set up to examine and sanction him for his actions. Just over five months later, on 6 March 2020, he killed himself. Addressing his fellow and beloved Thai people in a two-page suicide note, he explained that he was certain that the outcome of the investigation and the criminal case was that he would be fired from his civil service position as a judge, which would be tantamount to the loss of his very self. To continue to live would be unbearable.

Both the October 2019 declaration and the March 2020 suicide note circulated online in both traditional and social media. In the case for which the judgment was to be read on 4 October 2019, the five defendants were accused of premeditated murder and related crimes. Khanakorn and his bench of fellow judges had decided to dismiss the case due to a lack of evidence. But his superiors ordered him to change the decision to find the defendants guilty. Through a series of hand-written and electronic notes on the draft of the judgment, they warned that if he failed to do so, grave consequences for his position and advancement would follow. But Khanakorn refused. He is not a “lackey of the law,” who acts as ordered, but a person who takes justice seriously. As he declared, the sentences of execution and life imprisonment that this would result in for the five defendants “would be a stain upon my life and the bench of judges.” In response, he addressed the Chief Justice for the region and asked, “Is this the justice that the Chief Justice dispenses to the people? Is this fitting for a Chief Justice? Is this the legal and constitutional exercise of authority?”

For Khanakorn, the answer is a resounding no. He then addresses “all justice-loving Thais” and explains in detail how the defendants cannot be found guilty. Khanakorn ends by making two demands:

“Return the judgments to the judges.”
“Return justice to the people.”

In these demands he places himself, yours truly, with the people. The action of doing so both prefigured and resounded during the 2020 protests. His two demands frequently appeared in the speeches on the stages and on posters carried by activists. This, not the discharge of a firearm in the courtroom, was Khanakorn’s dangerous crime in the eyes of his superiors. What Khanakorn does not ask in his declaration is why his superiors want him to change his judgment. What do they gain by forcing him to act against the truth and punishing five innocent men? The answer is so simple as to be unspeakably profane: to exercise the sovereign power of life over death.

---

Declaration                                                                                                    For Court Use

[State Emblem]

Black Case No. ████/2561
Red Case No.            /2562

In the Name of the King
Yala Provincial Court
On the 4^th day of the month of October in Buddhist Era 2562

Yala Provincial Prosecutor, Plaintiff
versus
Mr. ████████, Defendant No. 1
Mr. ████████, Defendant No. 2
Mr. ████████, Defendant No. 3
Mr. ████████, Defendant No. 4
Mr. ████████, Defendant No. 5

In the matter of: Crimes against Life, Criminal Association, Violation of the Firearms Act

I, Mr. Khanakorn Phienchana, make this declaration as the judge responsible for this case. The judgment in this case was originally scheduled to be read at 9 am on 19 August 2019. As it is an important case (but not a national security or terrorism case), I had to report it to the Chief Justice. Subsequently, the Chief Justice issued an order via the [court’s] computer system for me to send him the draft judgment and case file so he could check it. Therefore, once I had finished writing the judgment, I sent it to the Office of the Chief Justice for Region 9 to be examined following his order. The case report letter is Document No. 1 and the trial report is Document No. 2.¹

¹ Document Nos. 1 and 2, as well as all others mentioned in this judgment, are not publicly available and therefore not included here. —trans.

Once the draft judgment and the case file reached the Office of the Chief Justice for Region 9, Mr. ████████, the Chief Judge of the Office of the Chief Justice for Region 9, began the examination. He made a note that he disagreed with the outcome of the judgment. He forwarded it to Mr. ████████, the Deputy Chief Justice, who made a note that he disagreed with the judgment and forwarded it to Mr. ████████, the Chief Justice for Region 9. He added an order on top of the aforementioned notes and marked it “secret.” He ordered me to rewrite the judgment according to the opinions of the Chief Regional Judge and the Deputy Chief Justice. In addition, the Chief Justice further ordered me to do so according to his (secret) attached note. As regards the aforementioned note, if the Chief Judge and the Deputy Chief Justice had read my judgment carefully and without bias, they would find that their argument did not in any way carry weight sufficient to rebut the argument contained in my judgment. In addition, when I looked at my draft judgment, I found that Mr. ████ had corrected word usage, phrasing and tone; this suggests that in truth, Mr. ████ agreed with my judgment but later had to express his disagreement for some reason. The draft judgment is Document No. 3 and the secret memo is Document No. 4.

Most important, according to the law, Article 11 (1) of the Charter of the Courts of Justice, upon examining the draft judgment and disagreeing with the decision that I and the bench of judges made to dismiss the case against all five defendants, the Chief Justice must write a dissenting opinion and attach it to the case file. This is the legally correct method. But the Chief Justice did not act in accordance with the law. Instead, he unjustly exercised his authority to write a secret memo ordering me to write a new judgment punishing the five defendants. If I did not agree to do as ordered, I was to proceed by writing a memo of explanation for the Chief Justice to then take further action. I was very suspicious and afraid of how the Chief Justice would proceed. Given that he began by breaking the law when he ordered me to change the judgment without the authority to do so, what power might he use to punish me?

The aforementioned order by the Chief Justice caused the date of the reading of the judgment to be postponed from the original date of 19 August 2019 at 9 am until 4 October 2019 at 9 am. The report of the judicial proceedings is Document No. 5.

If I and the bench of judges agreed to follow the order of the Chief Justice rather than dismissing the case and releasing the five defendants, no evidence would be present in the judgment to indicate that the Chief Justice’s order was the reason why Defendants Nos. 1, 3 and 4 were to be sentenced to death and Defendants Nos. 2 and 5 sentenced to life imprisonment.  Yet this judgment would be a stain upon my life and the bench of judges, all of whose names will appear on the judgment. Is this the justice that the Chief Justice dispenses to the people? Is this fitting for a Chief Justice? Is this the legal and constitutional exercise of authority?

In addition, another doubt remains for me. Why did the Chief Justice order me to write a memo of explanation? How was I to explain it? My draft of the judgment was detailed and fully reasoned. The Chief Justice had already read it carefully. Or was this a threat that if I did not comply then I might be punished for disobeying an order? He could order me to be transferred or use it as a reason to establish an investigation committee as he had threatened in another case. However, I refused to write a memo of explanation because my view was that the order was illegal. There is no law that allows the Chief Justice to make such an order. I would like to explain the truth to all justice-loving Thais in the country.

If I agreed to act according to the Chief Justice’s order, Defendants Nos. 1, 3, and 4 would be punished with the death penalty. This is specific to the crime of premeditated murder according to Article 289 of the Criminal Code. Defendants Nos. 2 and 5, as accomplices, would receive two-thirds of this punishment, which is life imprisonment, according to Article 289 in combination with Article 86 of the Criminal Code. This would be the case even though I and the other member of the bench of judges, Mr. ████████, hold the view that the evidence presented by the plaintiff did not carry sufficient weight to punish the five defendants. The facts do not substantiate the accusation that the five defendants committed the crime. Therefore, we ruled to dismiss the charges. The five defendants were to be released. In addition, the Deputy Chief Justice reiterated in the secret memo that if I insisted on dismissing the case, the five defendants should be detained during the appeal. I disagreed with this since the facts in the case did not substantiate that the five defendants were guilty of the crimes charged. Why would the court continue detaining the defendants? But if I disobeyed the order, a committee might be set up to investigate me and I might ultimately have to pack up my things and say farewell to the occupation of being a judge. Is this the justice dispensed to the people and the judges by the Chief Justice? However, it is not that I am insisting that the five defendants are not criminals: I am insisting that the judicial process must be carried out correctly.  The judicial process must dispense justice to both the victims and the defendants. The examination of the facts must be based on the evidence in the case file. Evidence must be weighed with discretion and without bias. The examination of evidence must not be infused with personal feelings, or be done according to anyone’s order, or because one wants to gain favor, or because one wants to make other people aware that one has the power to control judges and judgments. This is why the law clearly stipulates that judges must not rule and punish unless they are certain that an offense was committed and the defendant was the one who committed the offense. According to Article 227 of the Criminal Procedure Code, judges possess independence so that the examination and judgment of cases can be fair and impartial. According to Articles 188 and 196 of the 2017 Constitution of the Kingdom of Thailand, the personnel management of the judges of the Courts of Justice must be independent and carried out by the Judicial Committee of the Courts of Justice.

In brief, the core of this case is that the plaintiff charged that Defendants Nos. 1, 3 and 4 conspired to use weapons to shoot and kill the five deceased persons. Defendants Nos. 2 and 5 were accomplices. The important points of the examination of evidence can be summarized as follows:

This case is a murder case. This is a capital case that is no different from murder cases that arise in the northern region, northeastern region, or other regions. This case is not a national security case. It is not a terrorism case. The plaintiff did not charge that the five defendants committed crimes of terrorism or offenses against national security. But the entirety of the evidence arose during the detention of the five defendants in the Interrogation Center for a long period as suspects under two special laws, that is, martial law, which permits suspects to be held for up to seven days, and the Executive Decree on Public Administration in Emergency Situations, which permits suspects to be held for renewable periods of seven days up to a total of thirty additional days. These two special laws are for use in national security and terrorism cases, but they are somehow used in this ordinary case. I would like to make the observation that suspects have a status of innocence greater than formally accused persons, but here they instead have fewer legal rights than formally accused persons. Article 84, paragraph 4, of the Criminal Procedure Code stipulates that “Anything said by an arrestee to officials upon being arrested or turning himself in, if it is a confession to having committed a crime, it cannot be used as evidence.” Therefore, upon reflection, my view is that various pieces of evidence, whether they are the result of the interrogation, the confession, the record of the confirmation of facts, or photographs that arose from or during while the five defendants were held under those special laws, should not be admissible. But if the court admits them by claiming one reason or another, they are evidence that has very little weight and must be admitted with a high degree of caution. In other words, if there is no other credible evidence to corroborate it, then the aforementioned evidence does not possess the weight to be admissible. I will explain the consideration and weighing of the evidence that I took into account in brief, in particular the four following important parts:

1) The investigation officers did not come to inspect and collect evidence at the scene of the incident immediately on the night that it occurred. But there was a rescue volunteer, who lacked the authority to collect evidence, who collected evidence on the night of the incident. For example, he collected bullet casings and bullets and gave them to the investigation officers at the hospital. Therefore, the evidence that was collected from the scene of the crime is suspect and does not have the weight to be admitted. In addition, when the operations in this case are considered, the lack of watertightness causes the case to be questionable.   

2) Mr. ████████, a witness, was the first to be arrested and taken into custody after being surrounded by officials, who did not make the reason for doing so clear. That Mr. ████ became the person who implicated the five defendants is therefore questionable. The detention of Mr. ████ under martial law as a suspect, without making clear the reason why he was under suspicion, is also questionable. At that time, the officials in this case did not yet have any evidence that provided a reason to suspect that Mr. ████ was involved in a crime. His detention was without freedom and with fewer rights than a defendant. Therefore, the accusation made against Mr. ████ and his affirmation of various facts, is suspicious and must be taken with caution. As regards Mr. ████’s mobile telephone, which is alleged to have been used in the commission of the crime, it is evidence that is neither without doubt nor does it have any weight. The telephone was obtained after the officials took Mr. ████ to be detained in accordance with martial law and was seized not with him, but from the area near the chicken coop outside his home, which is an open area that anyone can enter. Mr. ████’s DNA was not found on the telephone and the telephone is registered in the name of someone else who did not provide any testimony. There is no evidence that Mr. ████ had used this telephone. This is all that the plaintiff has provided. It cannot be substantiated that Mr. ████ used the mobile telephone held in evidence to contact the accomplices to commit the crimes in this incident. In particular, it cannot be substantiated that Mr. ████ claimed to be an accomplice to the five defendants. He claimed to be an accomplice, but was not prosecuted. Therefore, the accusations made by Mr. ████ must be treated with caution as they may have been forced, coerced, or the result of persuasion. Or he was perhaps a character created in order to frame the five defendants. If his accusations are to be admissible, they must be accompanied by additional evidence. But the plaintiff does not have other supporting evidence with significant weight to accompany Mr. ████’s testimony that the perpetrators used multiple kinds of weapons and fired multiple shots in a row to kill the five people. There were no bullet casings or bullets in line with the number and kind that Mr. ████ cited found at the scene of the crime. The testimony of Mr. ████ is therefore suspicious as there is no other evidence to substantiate it. Therefore, the outcome of the interrogation, the accusation, and the confirmation of various information and the testimony at the investigation stage of Mr. ████ does not have the weight to be admissible.

3) Regarding the plaintiff’s argument that Defendants Nos. 2 and 5 took the officials to indicate the location where they had hidden guns: This took place while Defendants Nos. 2 and 5 were detained under special laws before being turned over to the investigation officers. This was while Defendants No. 2 and 5 were deprived of freedom and had fewer legal rights than formally accused persons, while their status of being innocent was greater. Therefore, anything said or any record of confirmation of the facts, photographs or locations by Defendants Nos. 2 and 5, is evidence with little weight. There must be additional evidence to substantiate it.  With respect to the plaintiff’s claim that Defendants Nos. 2 and 5 took the officials to look at the location where they hid the weapons, the search and seizure of weapons only yielded one 9 millimeter pistol, which was not the weapon that was used in this crime and is not in any way related to this case. In addition, DNA belonging to Defendants Nos. 2 or 5 was neither found on the gun nor in the area where the gun was hidden. Therefore, neither the aforementioned gun nor its location carries any admissible weight to support the interrogation, the accusation, the confession or the record of the confirmation of facts of Defendants Nos. 2 and 5. Given that Defendants Nos. 2 and 5 claimed that they confessed or confirmed the facts to the officials because they were forced and coerced, the plaintiff’s evidence is therefore without weight. The facts do not support that Defendants Nos. 2 and 5 were aware of the weapon found or its hiding place. There was no other evidence with weight sufficient to substantiate this. Therefore, the interrogation, the confession, and the accusation of and the record of confirmation of facts of the photographs and the scene of the crime by Defendants Nos. 2 and 5 while in the Interrogation Center, are not admissible.

4) Regarding the record of the statements and the record of the confirmation of facts of all five defendants as witnesses given to the investigation officers: This was arranged in the place and while the five defendants were detained in accordance with the Executive Decree on Public Administration in Emergency Situations, which is a special law that came to be used with this case, even though it is an ordinary case. The five defendants were detained without freedom and with fewer rights than those accused even though they remained with the status of being innocent. They were then transferred to the investigation officers. The five defendants testified that they denied all of the record of testimony and the record of the confirmation of facts and stated that they arose from being forced and coerced. Yet the plaintiff did not have any other evidence with sufficient and credible weight to substantiate the aforementioned record of testimony and the record of confirmation of facts. Therefore, the record of witness testimony and the record of confirmation of facts made to the investigation officers by the five defendants does not have the weight to be admissible.

When all of the other evidence of the plaintiff is brought to consideration along with the result of the interrogation, the confession and the record of the confirmation of facts, photographs and the scene by the five defendants, the plaintiff’s evidence does not carry sufficient weight to be admissible. Therefore, the various evidence, whether it is the result of the interrogation, the confession or the record of the confirmation of facts, the photographs or scene of the five defendants therefore lacks corroborating evidence. Therefore, it does not have the weight to be admitted. The facts therefore do not admit that the five defendants collaborated to commit the crime as charged. The case must be dismissed. It is impossible to rule to punish the defendants. The Chief Justice cannot find a reason to invalidate my ruling. Therefore, he used an easy method that relied on his position, which was to issue a secret memo ordering me to write a new judgment (without any law giving him the authority to do so) to punish the five defendants. But I refused.  

Therefore, it is highly suspicious that the Chief Justice, for some reason, issued a secret memo ordering me to punish the five defendants. The question is, what did the Chief Justice want? Why did he do this? The duty to continue to search for the answer may perhaps fall upon the committee of the Courts of Justice.

Another observation is that in this case, my examination was in collaboration with another judge on the bench; the regional Chief Judge, the Deputy Chief Justice, and the Chief Justice took no part in examining the case at all. They had no first-hand knowledge about any of the evidence as presented on trial.  On what basis do the three individuals therefore have the authority to issue the order (that they claimed was merely a suggestion) from the inadmissible evidence that the five defendants collaborated to commit the crime and so for me to reverse the judgment from dismissing the charges to punish all five defendants? If this can be done, then judges no longer have to write judgments. In other words, once the questioning and inquiry is complete, the file can be sent to the Chief Justice. The Chief Justice will be the sole figure with the authority to determine the fate of others. Recall the secret memo and pay attention to the reason that the Chief Justice gave to punish the five defendants. I read it and it was vague and unclear. Therefore, my understanding is that there was not a reason to refute my ruling. Because if it could be refuted, the Chief Justice would have to act in accordance with the law. This would be to write a dissenting opinion, according to Article 11 (1) of the Charter of the Courts of Justice. Instead, the Chief Justice wrote a secret memo instructing me to write a new judgment, with the outcome to be in accordance with what the Chief Justice wanted, which was to punish the five defendants. Regarding the Deputy Chief Justice and the regional Chief Judge, my understanding is that they were overpowered by the Chief Justice like I was.  I will not speak about the two because they have likely undergone a fair amount of hurt and distress that they must go from being judges to being merely “lackeys of the law.” The aforementioned actions of the Chief Justice do not facilitate justice. It is not the exercise of judgment in line with the law. I am therefore unable to act in accordance with the order of the Chief Justice.

The actions of the Chief Justice are interference in the judiciary. They are in conflict with Article 188 of the 2017 Constitution that stipulates that judges have independence in the trial and adjudication of cases. I don’t know how many times and in how many cases the Chief Justice has done this before. Examining a draft judgment before it is read to the parties in the case to hear, changing the words in a judge’s judgment until almost nothing of the original remains, sending a secret memo to the judge to write a new judgment so that the outcome is as the Chief Justice wishes, inevitably makes all the judges in the Court of First Instance around the country lack independence in trying and adjudicating cases. It is a demeaning of judges’ dignity. It is an action that causes judges to have less stature. It makes them have the position and status of being merely “lackeys of the law” who serve the orders of the Chief Justice.

In addition, the attempt by this Chief Justice to amend and change the result of a judgment I am responsible for did not only happen in this case. Prior to this, in March 2019, when I was serving in the Pattani Provincial Court, I was responsible for a case, Black Criminal Case No. ████/2561, Red Case No. ███/2562. In summary, the plaintiff charged that the three defendants, who were military officials, killed the deceased by shooting him with a gun. While the trial was ongoing, Mr. ███████, the chief judge at that time, walked into my office and told me that his friend had called him about this case; he tried to persuade me to believe that the three defendants had acted out of necessity in accordance with Article 67 of the Criminal Code, without Mr. ████ having examined the case file, which was with me throughout the trial. But I was not convinced. Once the trial was over and before I wrote the judgment, I had to take the case file to discuss with Mr. ████ following the order of the Chief Justice. It was a brief consultation because Mr. ████ was going overseas. The rough summary was that all three defendants should be punished. I began examining the evidence in detail and drafting the judgment. Mr. ████ was overseas. While I was drafting the judgment, I and the bench found that Defendant No. 1 had used a gun to shoot into the air while the event took place but was not part of committing the crime. As for Defendants Nos. 2 and 3, they used guns to shoot the victim. Therefore, I had to revise the original summary about which I had conferred with Mr. ████. I therefore called Mr. ████, who was overseas, using the LINE application. Mr. ████ picked up the call and told me to go confer with a senior judge. After that I took the case file to confer with the senior judge. The summary was to punish Defendants Nos. 2 and 3 and to dismiss the case against Defendant No. 1, as in Document No. 6.

After that, I sent the judgment along with the case file to the Office of the Chief Justice of Region 9 in accordance with the order of the Chief Justice. Those who examined the judgment began with Mr. █████████, the Chief Judge for Region 9 (at that time), who examined it and forwarded it to Mr. █████████, the Deputy Chief Justice, who examined it and wrote a memo forwarding it to Mr. ████████, the Chief Justice. Mr. ████ called to inform me that in the aforementioned case, it was likely a case in which all three defendants acted out of necessity and urged me to help out the government. I listened.

Subsequently, on 21 March 2019, at around 7 am, while I was working in my office at the Pattani Provincial Court, Mr. ███████, the Chief Judge, called to tell me that the Chief Justice ordered me to meet immediately at the Office of the Chief Justice for Region 9, which is in Songkhla Province. If I didn’t go to the meeting, he would order my transfer out of the area. The Chief Judge sent a car to pick me up to go to meet the Chief Justice in the morning before I had a chance to react. But I didn’t go. I went in another vehicle. Because I am not a “lackey of the law.” All of those who worked at the Pattani Provincial Court likely knew about this incident. The regional Chief Judge knew, too, because I walked into his office to tell him. After being threatened, I conferred with Mr. ██████████, a judge who was a member of the committee of the Courts of Justice of the Court of First Instance whom I trusted. We conferred about how the actions of the Chief Justice are likely in contravention with the Constitution, as appears in the photographs of the messages from the LINE application, in Document No. 7.

When I arrived at the Office of the Chief Justice for Region 9, he unfairly reproached me for various issues. For example, why did I use paragraph breaks in my judgments? This was incorrect form. He forced me to travel back to the Pattani Provincial Court immediately in order to revise the judgment. He did so even though I told him that I brought my notebook computer with me and had the information ready to revise the form of the judgment immediately according to his orders without having to return to do it at the Pattani Provincial Court. But the Chief Justice would not concede. Additionally, the Chief Justice ordered me to revise the judgment according to the memo of the examination of the draft judgment that was completed by Mr. █████████, the regional Chief Judge, the first person to examine the judgment. He wrote that the deceased attacked the officials by using his feet to kick them and his hands to punch them. The scene of the crime was an area in which there were active terrorists who attacked officials and the deceased resisted and would not submit to being searched. The three defendants may have thought that the deceased had something illegal, for example, a gun or a bomb. His opinion was that it was appropriate to return the judgment for amendment, to review the outcome of the judgment and to use discretion in determining the punishment. After that, he sent the memo to Mr. ████, the Deputy Chief Justice, who gave the opinion that the aforementioned incident was likely one of necessity, according to Article 67 of the Criminal Code. After that, it was sent to the Chief Justice, that Mr. ████, who had the order on the memo to me that the judgment was not in the correct form (the same-old claim, again), therefore had me modify it anew and send it to be checked again, as in the memo in Document No. 8.

This matter is one which I already analyzed in detail in the judgment. The deceased wore a sarong and was riding a motorcycle through an off-the-books checkpoint manned by military officials. An argument ensued and the deceased rode away in flight. Defendants Nos. 2 and 3 used their guns to shoot at the back of the deceased and the bullet(s) exited his mouth. As for Defendant No. 1, he was not involved in the argument, but was hiding in another spot in the distance. After that, the officials sealed off the scene. The search of the area did not reveal that the deceased had a gun or a bomb. If he did, he would have probably attacked Defendants Nos. 2 and 3 while they were quarreling.  Therefore it did not appear that there was a necessity according to the law that the officials had to kill the villager, as the Deputy Chief Justice opined. As for the Chief Justice, even though he did not directly include an order in his memo that I should revise the judgment according to the memo of the Deputy Chief Justice, he ordered all the same that the person responsible for the case should act in accordance with the attached memo. I considered the aforementioned memo. My view was that if another person who knew the case read it they would think it was a completely baseless memo. People like this, really, are the ones who examine the draft judgments? Or is it that the making of the memo of these three individuals has a purpose to aid the three defendants to avoid punishment or receive a reduced punishment? That is what they would probably think. You cannot prevent others from thinking how they do. Therefore, one must consider whether it is appropriate and worth the risk to allow the examination of draft judgments before reading them to the parties. Does it sully the name of justice?

In addition, as the Chief Justice returned the case file and the draft judgment, including the memo, to me, he hinted that he didn’t want anyone to have to face an investigation committee. This was the second threat. The first was that he would order my transfer. The second was that he would set up an investigation committee. Even though I did not do anything wrong; all I did was write a judgment with paragraphs so it could be easily read and use language that was in my own phrasing. For example, “Having considered, [the court] views that,” rather than “Views that.” Some Supreme Court judgments use the phrasing of “Having considered, views that,” too. The Appeal Court and Supreme Court judges sometimes use paragraph breaks in their judgments as well. 

Since reason could not be appealed to, I had to rush back to the Pattani Provincial Court, revise the judgment and send it to the Chief Justice on the afternoon of that day. I reaffirmed the judgment according to the original draft and only modified the form of the paragraphs and a little bit of the wording. I did so even though I had taken leave starting at 4 pm that day to fly home, which I had informed the Chief Justice about previously, as appears in the draft of the judgment in Document No. 9

From the actions of the Chief Justice who tried to amend and change the outcome of the judgment rather than agreeing to write a dissenting opinion in line with the law in these two aforementioned cases, I think that he was trying to pick a quarrel and frame me. By bullying and blaming me, the judge responsible for the case, for allegedly writing a bad and malformed judgment, he was trying to destroy my confidence and make me fear his power. To take a small matter and make it out to be a big and grave issue was a high-handed and unreasonable action. He did it to cause fear to arise in my heart, the judge who is responsible for the case, to persuade me to agree to do as he ordered. I also believe that the Chief Justice did the same with nearly every judge in the region. I have heard many fellow judges complaining, but no one wants to fight with or become the enemy of the Chief Justice. Then, just a few days later, while I was off work relaxing, the Chief Justice had his secretary call me to come meet him at the office. I would have had to unnecessarily cancel my flight and buy a new ticket. I said that I was willing to face an investigation committee but would not agree to meet a Chief Justice as unreasonable as this.

Then, on 26 March 2019, the Chief Justice sent a letter to me that was a recommendation. In that recommendation, he wrote that, “[You] must be sympathetic to the officials as well” (And what of the deceased and the family of the deceased? No sympathy for them?) and had me set a new punishment for Defendants Nos. 2 and 3. I had set the punishment for Defendant No. 2 to be life imprisonment, fifteen years imprisonment for Defendant No. 3 and dismiss the charges against Defendant No. 1. I was to change it to sentence Defendants Nos. 2 and 3 to 13 years and 4 months imprisonment. I was also to call the Chief Justice before reading the judgment to confirm whether or not I agreed to act according to the order. This appears in the memo of recommendation dated 26 March 2019 in Document No. 10. 

I did not agree with the Chief Justice’s recommendation, but I did not dare to violate his order. The reason that I did not agree is because Defendants Nos. 2 and 3 committed different crimes. Defendant No. 2 was the person who instigated the incident and framed the deceased as having a gun and shooting the deceased even though he did not have a weapon. As for Defendant No. 3, he was an accomplice and so how could he be punished equally? I explained this to the Chief Justice, but he stood firm. I then lacked confidence and grew afraid from the actions of the Chief Justice. In addition, in the adjudication of criminal cases, a judge whose opinion has a highly negative impact for the defendants is instructed to yield to a judge whose opinion has a less negative impact for the defendants. I and the bench therefore had to agree to reduce the punishment of Defendants Nos. 2 and 3. I cannot help wondering why did the Chief Justice have to do this to the judges and the people? The evidence is the difference between the draft of the judgment and the judgment that was revised according to the Chief Justice’s order that was read for the defendants to hear. A copy of the draft judgment and the copy of the aforementioned judgment for comparison appears in Documents Nos. 9 and 11.

In my opinion, that the Chief Justice orders the judges in his region to write judgments in the form that he wants, and scissors out the words of the judgment of the judge who is responsible for the case, until the original wording is obscured, is equivalent to forcing all of the judges in the region to line up in a row, tap their feet, and practice turning left and turning right. This is so that we will practice until we become accustomed to it. By claiming that is for orderliness, it is an attempt to make the judges lack confidence in writing judgments and to make every judge accustomed to obeying orders of the Chief Justice. It is to make them see that they must follow the orders of the Chief Justice so that the Chief Justice will be able to control the outcome of the judgments for the entire region. It is the covering of the eyes and ears of the people as to how judgments are really made. The actions of the Chief Justice are actions that are in opposition to Article 188 of the 2017 Constitution, which aims for judges to be independent in their examination and judgment of cases. This is also the oppression and persecution of judges to strip them of dignity and make them merely “lackeys of the law.” If the Chief Justice wanted real orderliness in writing judgments, he could issue a directive or ask the Courts of Justice to issue a directive to set the form of the judgment that he thinks is the best to serve as a model. The Chief Justice could do so easily because he is highly capable. But the Chief Justice didn’t do this. He instead vaguely claimed that a judge wrote a judgment that was in incorrect form, even though such a form that is correct, clear, modern and accepted by the people has not yet been set.

I became a judge when the 1997 Constitution was in force. When I finished writing a draft of a judgment, I didn’t have to send it to the Chief Justice to check before it was read to the parties in a case. I understand that at that time, they wanted judges to have independence in examining and judging cases as a protection against interference in the outcome of judgments. Once a judgment had been read, the Chief Justice was then able to examine it. If his view was that the judge had decided incompetently or in a corrupt way, he had the authority to establish an investigation committee. If the committee found that there had been a violation, the Courts of Justice could sanction the judge according to the law.

What I have done today, I have done for the Courts of Justice, for the nation and the people. The oath that I made before King Rama 9 according to Article 252 of the 1997 Constitution, was comprised of the following words, “I, Mr. Khanakorn Phienchana, take an oath of allegiance that I will be loyal to the king, and will carry out my duty in the name of the king with devotion, without any bias, in order to create justice for the people and harmony and happiness in the kingdom. I will protect and act in accordance with democratic rule with the king as head of state according to the Constitution of the Kingdom of Thailand and every law.” Seventeen years have passed and I still remember the king’s words, which in summary were to be a good person who can be trusted, to be a good person who can be depended upon. My personal understanding of this is that being a good judge is not enough. One must be a good judge that the people can trust and depend upon. I felt immensely proud on the day of the oath. Today, if I acted following the order of the Chief Justice, I would not be a good judge: I would not be a judge who adhered to justice. The people would not receive justice and would lose trust. To be unable to be someone relied upon to provide justice to the people is equivalent to not acting in accordance with the oath. I would rather die than live without honor like this – “it is better to die than live without honor.”

The aforementioned incidents that occurred are only part of it. At this time, my fellow judges in the Court of First Instance who perform their duties around the country are treated no differently than I. They are no less hurt and distressed than I. It is only that they have great patience and their circumstances are perhaps not as severe as those I encountered. An investigation committee might be established and rule that what I did today was action in violation of the code and severely bad behavior. I might be fired without my pension because I am merely a thin reed that dared to wrestle with a log.

If my actions have disgraced fellow judges in Class 46 and our professors, I ask for your forgiveness. That the judges of Class 46, my class, has always had a good reputation, including for our knowledge, ability and integrity. There has never been a judge in my cohort whom the people have petitioned for committing wrongdoing, or has been punished for a code violation, and no one has died yet. In short, “no one fired, no one tried, no one died.” It is a class of judges that is very solid. But everything must have a first. I am the first one. I must apologize.

A crisis has arisen in this period and the people have lost faith in the Courts of Justice in a way they never have before. Judges in the Courts of First Instance around the country have had their reputations unjustly maligned. They must bear the brunt of karma that’s not of their own creation. This is the case, for example, regarding the issue of the judges’ houses in the mountainside of Doi Suthep in Chiang Mai Province. The judges of the Court of First Instance around the country, whose work is to examine their cases, did not have any role in the setting of the location or the construction of the judges’ residences. But the people’s view is that the judges of the Court of First Instance have trespassed and want to have houses in the Doi Suthep forest. This is not true. No one defends them. One time, the parents of a child at my child’s school asked me what work I did. I answered that I was a civil servant. I didn’t tell them that I was a judge. I didn’t want to answer questions about the judges’ residence on the mountainside. In addition, there are also many judgments that the people think are unjust. This is not the wrongdoing of the judges of the Court of First Instance. But the judges of the Court of First Instance are those who interface with the people and must bear the brunt of the karma not of their own creation. In addition, there is also the issue of the judgments that are generally known and important judgments. The people may not know the truth and may misapprehend the judges of the Courts of First Instance.

In addition, the Court of First Instance judges around the country do not receive fairness as regards money.  This has caused them to be financially insecure for a long time. 

The first point: During working hours, judges in the Court of First Instance must examine cases, hold hearings in courtrooms, issue orders on various petitions and requests, and check the judgments and orders that have been typed already. When the examination and hearings in a case are complete, they must write a judgment. But there is no time for writing judgments in the daily schedule. The schedule includes hearings, issuing rulings and orders, etc. Therefore, the judges must rely on their personal ability to organize time. Ultimately, they must write judgments outside working hours and must finish the writing in a limited time. But writing in the so-called “neat, chic, and swift” fashion comes with the sacrifice of personal time without compensation. This is different from doctors, who receive fees if they examine patients outside normal working hours. This is different from investigation officers, who receive a case fee when they receive a case file (if I am wrong, I apologize). Therefore, I wonder, why are judges not compensated for writing judgments even though they must write them outside of work time? That writing of judgments in each case requires blocks of at least two hours, and each case consumes many hours and many days until it is complete (and then the regional judge revises it, until there is barely a trace of the original draft). All writers will understand this.

The second point is that judges are forbidden from having another occupation in order to secure additional income. Therefore, judges cannot find other income to generate financial security for themselves. This is different from doctors who are able to open clinics to obtain additional income aside from working in the hospital. When a doctor chooses not to open a clinic, they will receive a compensation sum. This raises a question about fairness: why don’t judges receive a sum in compensation for their inability to carry out another occupation?

These unfair reasons are why judges lack financial security. It may cause them to be weak and unconfident. They might be threatened into fear and persuaded easily. The interference in the judgment or the orders can be done easily. Where are the principles of independence of judges? The Chief Justice’s threat that I would be transferred out of the area is a relevant example here. I came to work in the southern border area because I wanted to receive the monthly hazard pay. If the Chief Justice ordered me to be transferred out of the area, I would no longer receive this compensation. 

If your view is that judges receive a high salary, you have to consider what the basis for your comparison is. To what occupations are you comparing it? Given the current economic climate in which the cost of living is high, you will find that the income of judges is not as high as it should be. It is well-known that the occupation of being a judge carries honor, no less than being a physician, an engineer, a pilot, a member of parliament, or a senator. But judges are unable to use their knowledge and ability to obtain additional income. Therefore, judges have an income lower than those at the same level.

One has to work hard as a judge of the Court of First Instance. You must endure. You must control the examination of the case in the courtroom with complicated problems every day. You must endure power struggles both inside and outside that seek to interfere to change the outcome of the judgment. How much longer will the people or the legislative assembly or the executive leave judges to experience injustice and struggle alone? There is likely no one who wishes to see Court of First Instance judges as “lackeys of the law.” Therefore may the people understand that, in truth, the judges of the Court of First Instance are beside you and are fighting to provide justice to the people always, like I am trying to do right now.

As regards this issue, I have sent a letter with evidence and demands to the president of the parliament — to communicate to every member of parliament — the prime minister — to communicate to every member of the cabinet — and to the media. I wish to indicate in online media for the people all over the country to understand that judges of the Court of First Instance all over the country have always been on the side of the people and will give justice to the people until the end of our days. I make the following two demands:

1) Call on the legislative assembly to pass an amendment to the Act on the Organization of the Courts of Justice in order to forbid the examination of draft judgments before they are read to the parties in cases and to ban any actions that result in the interference in the outcome of the judgment.

2) Call on the legislative assembly, the prime minister, and the cabinet to provide fairness as regards money to the judges around the country. There are some judges who have compiled the details about this issue but it remains delayed inside the Courts of Justice and has not been presented to the legislative assembly and the prime minister.

The chief judge, the bench, and all other judges in this court had no involvement or knowledge about this declaration. The chief judge and the other judges in this court are all fair and compassionate people. No one knew that I was going to do this.

Let me end with two sentences to fellow Thai people and all those who love justice:

“Return the judgments to the judges” “Return justice to the people”

“Return the judgments to the judges” “Return justice to the people”

“Return the judgments to the judges” “Return justice to the people”

“My statement may have the weight of a feather, but the heart of the judge is firm as a mountain. Therefore, I offer my heart to weigh on the scale of justice, to affirm the declaration. May everyone have happiness.” 

The matter rests upon your honorable judgment,

(Signature)

Mr. Khanakorn Pienchana
Presiding Judge of the Court of First Instance, Yala Provincial Court