The Murder of Sherry Ann Duncan and Prospects for Due Process in Criminal Trials

by Samson Lim

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30 September 2009

Public Outrage and Constitutional Reforms of 1997

When it turned out that the story presented by the police about the murder of Sherry Ann Duncan was a lie, the public’s acceptance of the failings of the legal system was pushed to the limits of reasonable tolerance. The police had, after all, crafted their story with tools invented to discover facts about crime and presented it in a forum meant to verify the truth. What was so galling, then, was that the police had so blithely trampled the rights and dignity of the accused and the entire legal apparatus.

The issues for legal reform immediately at hand included the power to investigate criminal cases, the role of the public prosecutor, the reliance on police reports in trials, and the lack of adequate mechanisms to protect the accused. The 1997 Constitution specifically addressed these issues of legal reform and included for the first time provisions to ensure due process and the protection of the rights of accused in criminal trials.

Several articles in that constitution stemmed directly from the Sherry Ann case and were aimed at protecting suspects’ rights. Article 237 stipulated that the police bring a suspect to trial within 48-hours of arrest and limited their power to conduct warrant-less searches. In the Sherry Ann case, the four defendants were arrested and then held for weeks as the police conducted their investigation. Article 246 stipulated that suspects have the right to receive compensation while detained if found innocent. This was known as the Sherry Ann article, owing to the tragic events that befell the four men while incarcerated.
           
Post 2006 – Politics and the Possibilities for Due Process

After the coup of 2006 that removed Thaksin from power, a new law of the land was issued – the 2007 Constitution of Thailand. This constitution, the country’s seventeenth (including charters), was much more circumspect in its detailing of rights in criminal cases. In it, a few of the basic tenets introduced after the Sherry Ann case were retained including the right to an ‘uncomplicated’ and efficient trial (Part 4, Section 40) and the principle that the accused shall not, before being convicted of any crime, be treated as a ‘convict’ (Part 4, Section 9). Other rights retained, albeit in general terms only, include the right to be treated properly during the entire judicial process, the right to not have to testify against oneself, and the right to the protection and assistance of the state. Compensation for essential expenditures of defendants is also provided for in cases where the accused is not found guilty. These provisions, however, do not state in the same forthright detail the rights of the accused as did the 1997 Constitution.

The Thai public may be so used to the abuse of power by public officials that incidents similar to the Sherry Ann case do little to engender any real outrage. An ABAC poll published in July showed that 51 percent of respondents questioned believe corruption by politicians is acceptable so long as a basic level of prosperity is maintained. If this laissez-faire attitude applies to the working of legal officers, it would seem that the long-term protection of the rights of accused, victims, and prospects for due process of law in Thailand will require fundamental cultural change in addition to constitutional mandates.

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1 Response to “The Murder of Sherry Ann Duncan and Prospects for Due Process in Criminal Trials”

Comment by warry_25@hotmail.com | 10/02/09 at 1:30 pm

It is interesting to note that after the case was reinvestigated because of new evidence brought forth, a woman by the name of Suviboon was arrested for hiring men to murder Sherry Ann out of revenge for having an affair with her boyfriend, although she was subsequently released because of lack of evidence.

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