Asian Legal Resource Centre
1. The Asian Legal Resource Centre (ALRC) is a regional non-governmental organisation holding General Consultative Status with the Economic and Social Council, having its registered office at Floor 19, Go-Up Commercial Building, 998 Canton Road, Mongkok, Kowloon, Hong Kong Special Administrative Region, People’s Republic of China. It submits this document to the Human Rights Committee (the Committee) to coincide with the consideration of the initial report of the State party Thailand to the Committee in accordance with article 40 of the International Covenant on Civil and Political Rights (the Covenant). The initial report (CCPR/C/THA/2004/1: 24 June 2004) was issued in accordance with the wish expressed by the Human Rights Committee at its 66th session in July 1999, after Thailand acceded to the Covenant in 1997.
2. Staff members of the Asian Legal Resource Centre have prepared this document in collaboration with colleagues in Thailand based upon their accumulated experience regarding the situation of human rights there. The ALRC has for many years been familiar with human rights concerns in Thailand. It has submitted numerous statements on a number of key human rights issues in the country to the annual sessions of the Commission on Human Rights (the Commission). More recently it has directed a considerable amount of work towards what it sees as a worsening human rights situation there. In June 2003 it released a special report, ‘Extrajudicial killings of alleged drug traffickers in Thailand’ (article 2, vol. 2, no. 3). It has also sought to become increasingly involved in specific cases of violations of civil and political rights, with a view to proposing legal and institutional changes in order to prevent further abuses, and ensure punishment for the perpetrators and redress for the victims. The ALRC and its sister organisation the Asian Human Rights Commission (AHRC) have both increasingly communicated their observations and concerns to the relevant domestic and international agencies. These include the Minister of Justice, National Human Rights Commission of Thailand, Special Rapporteurs and Working Groups, and on one occasion each, His Majesty the King of Thailand and the High Commissioner for Human Rights. Many of these documents are cited and appear as appendices in this submission.
3. More broadly, the Asian Legal Resource Centre has 20 years of experience in human rights and rule of law issues throughout Asia upon which to make its observations. It has actively engaged with international human rights mechanisms throughout this time. Since obtaining General Consultative Status in 1998 it has annually made written statements to the annual sessions of the Commission on a huge range of issues from throughout Asia, and of relevance to the global human rights movement. It has submitted 40 written statements to the 61st session of the Commission. It has submitted a number of alternative reports to committees. These include comments on the report of Cambodia concerning the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (April 2003) and comments on the 16th periodic report of Nepal to the Committee on the Elimination of Racial Discrimination (December 2003). Together with the World Organisation against Torture (OMCT) it submitted an alternative report on state-sponsored violence in Sri Lanka last September 2004 to the Human Rights Committee, and attended the hearings of the committee on the same. In 2004 it also submitted a proposal for a new agenda item under rule 5(4)(a)(ii) of the Guidelines for the Application by the Sub-Commission on the Promotion and Protection of Human Rights, with reference to the exceptional collapse of the rule of law in Sri Lanka (E/CN.4/Sub.2/2004/3, 7 June 2004). It has also initiated the bringing of a number of individual complaints to the Committee.
4. The Asian Legal Resource Centre has been unique among human rights organisations globally in bringing article 2 of the Covenant to the forefront of all its work. It is unique in having a bimonthly periodical, article 2, named after this integral section of the Covenant, which is dedicated to raising issues on effective implementation of human rights standards.
5. The Asian Legal Resource Centre is therefore well placed to comment on the situation of human rights in Thailand with a view to strengthening the Concluding Observations of the Committee in order to improve the application of the Covenant by the State party through constructive discussion with the delegation.
6. While the Covenant incorporates concern for the full range of civil and political rights, from its work the Asian Legal Resource Centre wishes to draw particular attention to the following problems facing persons seeking to protect human rights in Thailand.
i. Torture is routinely practiced and publicly accepted in Thailand. It is used by all security agencies, most commonly, the Royal Thai Police. In the minds of the ordinary people, the police are associated with routine physical abuse and humiliation of persons in their custody. Unusually cruel forms of torture are also inflicted both on persons taken into custody over alleged ‘terrorist’ activities as well as ordinary criminal cases. The perpetrators rarely face criminal prosecution of any kind. No domestic law exists to effectively address the use of torture, and Thailand has not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Nor does any specialised independent agency exist to investigate complaints of torture or other grave human rights violations by the police or other state agents. No official attempts are made to counter public assertions, even when coming from senior officials, that torture is acceptable. Limited arrangements exist to compensate victims and protect witnesses. However, in most cases of torture it is extremely difficult to take steps to protect the victims and prosecute the perpetrators as the former are usually held in the custody of the latter for extended periods. Under these circumstances, it is not possible to secure evidence of torture and keep the victims free from coercion and threats by the perpetrators.
ii. Torture and other custodial abuses are freely committed by state agencies in part because of the very extensive powers that they enjoy.Despite the establishment of new agencies under the 1997 Constitution intended to correct this imbalance, as well as some other minor reforms, the Royal Thai Police are free to operate with relatively little external scrutiny and few avenues for effective complaints by the public. In most criminal cases the police have complete control over the enquiries. During their investigations, the police are able to detain criminal suspects for a period of up to 84 days without laying charges. Many persons are detained for longer periods than are legally permitted, or are rearrested on new charges immediately after being released at the end of the statutory period. While holding a detainee, the police have at their disposal numerous tried-and-tested means to extract confessions and then conceal the evidence of abuse. In practice, the provisions allowing access to lawyers and doctors during this period, to which the State party has adverted in its report (para. 191), do little to prevent these practices. Even in cases where a high level of publicity has been raised around alleged torture, and unequivocal evidence of it exists, there is a heavy reluctance on the part of the authorities-despite rhetorical commitments to the contrary-to do anything to combat it. While these conditions apply under normal circumstances, in parts of the country subject to martial law provisions the security forces are granted considerably wider powers to detain and limit the rights of suspects without outside scrutiny.
iii. The widespread use of torture is intimately connected to other serious violations of human rights in Thailand, notably extrajudicial and targeted killings. The number of extrajudicial and targeted killings in the country has risen alarmingly in recent years. These include the widespread killings of alleged drug traffickers, targeted killings and forced disappearances of human rights defenders and environmental activists, and mass killings and deaths in custody in the troubled south of the country. The perpetrators of these acts are rarely subjected to criminal prosecution. State agents enjoy considerable impunity when responsible for the deaths of others. Although the State party asserts that state agents are subjected to the same laws and procedures when responsible for the death of another person (para. 147), this is not the case in practice.
iv. Institutions that exist to protect the rights of citizens are not having this effect. Within the courts, public defenders are not doing their jobs. Ordinary people in Thailand anticipate that if they are assigned a public defender then they will be found guilty. The services provided by the Law Society of Thailand are in many instances little better. Its lawyers may decline to assist in a case where a public defender has already been appointed for reasons of etiquette, even when the public defender is doing nothing. As a result, victims and their families have lost confidence in these agencies. Outside the courts, pending legal proceedings are used as an excuse for inaction. The Department of Special Investigation under the Ministry of Justice, Crime Suppression Division of the Royal Thai Police, and the Ombudsmen have, for instance, all declined to investigate cases on the ground that the matter is pending in the courts. This is even the case when the complaint lodged does not relate directly to the hearings in court. The government of Thailand has not ratified the first Optional Protocol to the Covenant, thereby denying the possibility for a dissatisfied complainant to bring a case before the Committee.
v. Many of the provisions and institutions established under the democratic 1997 Constitution of Thailand are under serious threat. The State party has in its report rightly spoken of the importance of this Constitution (para. 22); however, in reality a significant danger is now being posed to the democratic structure of Thailand and its new independent agencies. Both the Forensic Science Institute and National Human Rights Commission have been the targets of uncompromising attacks by senior persons in government and the police, seeking to limit their efficacy. The links between the government and big business have undermined strong public attempts to establish genuinely independent regulators of broadcast media frequencies. The continued use of onerous and outdated criminal defamation laws prevents open debate on issues that are in the public interest, in contravention of the Constitution.
vi. The dramatically worsening conditions in the south of Thailand are a matter of particularly grave concern and deserve special attention. The resumption of counter-insurgency measures, including the recent proposal to zone the three southern provinces and deny ‘red zones’ government funds, is an extremely disturbing development. Apart from the daily reports of violence in the south, the scale of human rights abuses by all parties there is unknown. Anecdotal reports suggest that disappearances, torture and extrajudicial killings are widespread; however, the lack of any effective independent oversight makes the extent of these incidents difficult to establish. Notwithstanding, the fact that the perpetrators of the widely reported deaths in custody of at least 78 persons in October 2004 have not faced criminal sanction for their actions speaks to the absolute impunity with which state security forces are being permitted to operate in the south.
7. Overall, these features point to a serious weakening in the rule of law in Thailand that poses a growing threat to the protection of human rights there. The strong hope of the 1990s for a new era of human rights protection in Thailand, from the ending of military dictatorship in 1992 to the promulgation of the new constitution in 1997, is now being replaced by apprehension about the future. The current government has exhibited many characteristics typical of the new style of authoritarian rule in Asia. Among these, it has created confusion about the role of the judiciary and denied it the right to play a role in responding to critical events, such as mass killings. It has created confusion about the law itself, such as by permitting persons who kill alleged drug dealers to escape any consequences. And it has deliberately weakened controls over law-enforcement agencies, such as by rewarding rather than prosecuting officers known to have been responsible for killings, and by publicly attacking those agencies established under the Constitution to subject the police and other agencies to external scrutiny. Self-defence is at its lowest ebb in Thailand for many years. Citizens are quickly losing their basic defences to the rights of life and liberty.
8. In many respects, the thinking of the ruling elite in Thailand continues to be deeply feudal and contrary to the principles of modern governance and justice. Despite the surface appearance of democracy and respect for human rights in the country, it is still the elite and its values that predominate. It is still expected that a general should escape punishment for mass killings, that a political leader should be permitted to threaten publicly persons who question his authority, that a senior police officer should endorse torture, that a villager should be killed for being an alleged drug dealer. On paper, Thailand now adheres to the rule of law; in practice, it is still subjected to the rule of lords. Although the democratic 1997 Constitution suggests the possibility of change, it has become clear in recent times that ancient authoritarian practices and thinking are still very much in place. This is not surprising. Such practices have existed for centuries and are part of the collective psyche. The rule of law, introduced by constitutions such as the most recent one, has only a short history. However, any hope of its being internalised is seriously interrupted every time the army is allowed to kill at random, the police permitted to torture at will. The persistent reinforcement of old practices, under the guise of seemingly modern institutions in Thailand, continues to have a tremendously detrimental albeit subtle effect on the possibility of effecting rights under the Covenant.
Article 2: Effecting rights under the Covenant
2. Where not already provided for by existing legislative or other measures, each State party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.i
9. The Asian Legal Resource Centre has consistently observed that that the primary reason for endemic impunity and persistent gross violations of human rights in Asia is the grave defects in policing and judicial systems that prevail throughout the region. Where policing and judicial systems are seriously malfunctioning or non-functioning, it is impossible to effect rights under the Covenant in accordance with article 2. Under those circumstances, talk about rights and ratification of the Covenant has no meaning.
10. The obligation of the State party under article 2 is practical. It means introducing laws and establishing agencies equipped with the resources to enforce the rights enshrined in the Covenant.
11. With reference to Thailand, the following gaps in laws and institutional arrangements undermine the enforcement of rights under the Covenant as stipulated by article 2:
i. No law exists to proscribe torture and prescribe penalties. Article 31 of the 1997 Constitution prohibits torture in accordance with article 7 of the Covenant; however, there is no criminal law prohibiting torture. Section 289(5) of the Penal Code, which has been identified by the State party as addressing cases of a cruel nature (para. 186), is a subsidiary clause with reference to murder, not torture. Similarly, other provisions contained in the Penal Code make reference to acts of cruelty; however, none address torture as a criminal act as envisaged by article 7 of the Covenant and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The State party has not ratified the Convention against Torture. Under the circumstances, it is not possible to effect article 7 of the Covenant in accordance with article 2.
ii. No procedures exist to investigate acts of torture. There is no specialised agency or avenue to investigate whether somebody has been tortured. The National Human Rights Commission, identified by the State party as the agency “to oversee matters of human rights according to this article of the Covenant” (para. 187), does not have judicial authority, and therefore it must be omitted from discussion with reference to article 2. No procedure exists for judicial officers to make enquiries into acts of torture, or for quick medical examination of the alleged victim specifically in order that the same can be submitted to the courts to establish whether or not an act of torture has been committed. Section 243 of the Constitution stipulates that, “Any statement of a person obtained from inducement, a promise, threat, deceit, torture, physical force, or any other unlawful act shall be inadmissible in evidence.” Section 226 of the Criminal Procedure Code contains a similar provision. However, in the absence of procedures and speedy interventions to establish whether or not a confession submitted to the court has been obtained through use of torture, it is extremely difficult for the accused to invoke this section. For instance, when counsel for Messrs Metta Saiphan and Anucha Siriporn na Ratchasima in Ayutthaya Provincial Court argued that his clients had been tortured to extract confessions, and presented documentation of institutionalised torture by the police, his argument was rejected by the court for lack of evidence. As the alleged victims had been detained for the full duration of the statutory period of 84 days before being charged, and as they lacked the means to obtain medical treatment and access to competent lawyers in the interim period, evidence of the alleged torture had been lost.
iii. No law exists to proscribe forced disappearance and prescribe penalties. There are no criminal provisions against the act of forced disappearance under the law of Thailand. The Penal Code recognises only acts of kidnapping in order to obtain ransom (section 313). Where the body of a disappeared person is never recovered, even if the alleged perpetrators are identified there is no corresponding offence under which they can be charged. The case of prominent disappeared human rights lawyer Mr Somchai Neelaphaijit speaks to this point: the accused police officers have been charged only with coercion and armed gang-robbery (under sections 309, 340 and 340 ter. of the Penal Code).
iv. No procedures exist to investigate forced disappearances. There is no specialised agency or avenue to investigate whether somebody has been forcibly disappeared. No procedure exists by which the relatives of disappeared persons may bring their complaints quickly and expediently into the courts. That the question of forced disappearances is not addressed in the State party report speaks to the absence of thought on this issue among the concerned authorities in Thailand.
v. No enabling law exists to bring complaints of human rights violations to the high courts. A person who has been tortured or otherwise had their human rights violated cannot lodge a claim directly in a high court to the effect that rights have been breached. Section 28 of the 1997 Constitution holds that “a person whose rights and liberties¡K are violated can invoke the provisions of this Constitution to bring a lawsuit or to defend himself or herself in the court”. However, no special provisions exist for writ applications to the high courts to show cause that a right enshrined in the Constitution or Covenant has been violated, in order that the court may afford a remedy.
vi. No specialised agency exists to receive and investigate complaints of serious rights violations against the police. Where the police commit gross abuses of human rights, or fail to perform their duties as required by law to the same effect, there are no other institutions available in Thailand to initiate steps for redress as envisaged by article 2. Although the largest numbers of public complaints about state agents are against police officers, no specialised agency exists that is capable of registering complaints and initiating investigations that may lead to criminal prosecution of police. The shooting of a school bus in Ratchburi province during 2002 speaks to this point. Although the families of victims have alleged that a police officer was one of the persons behind the attack, they have been unable to do anything to have an investigation opened against the alleged perpetrator, while the Office of the Attorney General has pursued an innocent man through the courts. Again, with regards to agencies for complaints under article 2 the National Human Rights Commission must be omitted from discussion in view of its limited mandate.
vii. No effective mechanism exists for external scrutiny of abuse committed by the police during investigations. As criminal investigations are in most cases left entirely in the hands of the police, and in the absence of an agency to deal with police abuses, they are free to pervert investigations without scrutiny. Perverting of cases may include many different acts or omissions with particular aims. During the 2003 ‘war on drugs’ it was widely observed that the police deliberately failed to investigate killings of alleged drug dealers. Where they did attend the murder scenes, investigations and questions were typically directed towards establishing the victims’ guilt, rather than take action to arrest the murderers. Where evidence of drug trading was uncovered, it was also used to justify the murder and effectively close the case. Evidence of drug trading was considered sufficient grounds to justify the death. The police were also widely accused of having planted drugs on the bodies of victims of killings to fabricate cases against them. In ordinary criminal cases referred to the Asian Legal Resource Centre, police have been variously accused of failing to provide access to lawyers and doctors, failing to conduct line-ups, stacking of records, sending of false police witnesses to court, failing to investigate, refusing to record witness statements, and refusing to give information as required by law.
viii. The Office of the Attorney General has no critical role in ordinary criminal investigations. The Office of the Attorney General does not become involved in ordinary criminal investigations at present unless the police request it. This is a systemic weakness recognised both by the Minister of Justice and the Attorney General, who have recently announced reforms to give the Office of Attorney General a joint investigatory function with the police in special cases, where deemed in the public interest. While this measure is appreciated-and almost universally recognised as a necessary step to stem criminal activities by the police-it is insufficient. In particular, the limiting of a joint role in investigations to the Attorney General on cases of public interest is dissatisfactory, as most abuses of rights under the Covenant occur in ordinary criminal cases, when day-to-day procedure is treated with contempt. Another concern is that as the Office relies upon the police for the obtaining of documentation and presenting of evidence that will secure convictions, it is inevitable that there is a close relationship between police officers and public prosecutors working under the Attorney General. This is particularly the case in smaller towns and cities where the police and public prosecutor may know one another personally. This relationship may be seen in the case of Mr Chanon Suphaphan, who was convicted for robbery by the Singhburi Provincial Court, after the public prosecutor presented evidence that did not take into account witness statements for the defence which had been recorded by the police.
ix. The Forensic Science Institute has lacked necessary support. The Forensic Science Institute was established out of recognition that an independent and professional body be able to undertake independent enquiries into suspicious deaths in Thailand, in order that there be redress for the families of dead victims of rights violations under the Covenant. As such, it is an integral agency for the application of article 2 provisions in Thailand. However, it has been consistently challenged by the police and forced to fight to establish its mandate and reputation. Most recently, it has been alleged that volunteers working with the Institute have been kidnapped by police and forced to reveal information about the agency’s operations. The Institute has not obtained the necessary cooperation from government agencies to secure its mandate.
x. Victim compensation is still rudimentary. The report of the State party makes reference to the initiative for a compensation fund to be established in accordance with Section 246 of the Constitution (paras 265-68). The Office of Public Compensation for Criminal Cases was recently established under the Compensation for Crime Victim Act 2544 (2001). While compensation in cases of human rights abuse must always be understood as supplementary to-and not a substitute for-criminal prosecutions, it is nonetheless an important element in effective redress as stipulated under article 2 of the Covenant. This compensation should especially take into account the physical and psychological needs of victims of torture and other gross abuses. To date, where the director general of the Department of Rights and Liberties Protection has spoken publicly on possible compensation for victims, it has been reported in terms of financial compensation. This must also be accompanied by compensation for medical treatment, including physical and mental rehabilitation. Additionally, the question of timely compensation with minimum difficulties for the victim is also yet to be addressed. At present, it is necessary for victims first to obtain medical treatment for injuries suffered due to torture or other abuses, and then seek compensation through the procedure established by law. As many of the victims of torture and other police abuses are poor persons who may not be able to afford a day away from work-let alone the cost of medical bills-this places an undue burden on the victim impinging upon article 2 rights. This was recently illustrated in the publicised case of torture victim Mr Ekkawat Srimanata. In that instance, the victim’s friends rushed him directly from a police station to hospital with severe burns all over his penis, testicles and groin. Immediate emergency treatment was needed. However, when police officials were asked about giving assistance, they observed that no provision exists for such an arrangement, and advised that the victim could seek compensation through the established channel. The concern for the police was that should they provide assistance it would amount to an admission of guilt. Therefore, emergency arrangements are yet to be established in cases such as this whereby the victim of abuse may obtain prompt assistance from the government without otherwise jeopardising the due process rights of the alleged perpetrator.
xi. Witness protection is still rudimentary. The Protection of Witnesses in Criminal Cases Act 2546 (2003) came into force in Thailand during 2004 when the Office of Witness Protection under the Ministry of Justice started its work. As a consequence, a number of victims of police abuses, including torture and cruel and inhuman treatment, were afforded short-term security. As one of the gravest obstacles to the prosecution of perpetrators of human rights abuses is the fear of witnesses in speaking out against the police and other state security officers, the Office is a critical step for the future protection of human rights in Thailand. However, the concern is that if the Office is not given adequate resources and widely promoted within a short period of time it may not realise its full possibility. As the management of protection for victims under this Office is setting a precedent for cases yet to come, it is necessarily cause for considerable public interest. Recently it was reported in the domestic media that three persons in the south of Thailand who had been afforded protection were killed. If such persons coming forward now to be protected under the Act are still subjected to threats or death, it will damage public confidence in the new protection regime at an early and crucial stage in its development.
12. Some additional observations flow from the above.
13. The police in Thailand are at every level influenced by outside parties. In cases where influential people are involved, whether political or business figures-and increasingly in Thailand this amounts to the same-the police are discouraged from pursuing the case through payments or otherwise. It is well known that the police in Thailand are both highly corrupt and highly politicised. This is public knowledge. During 2003, a nightclub kingpin who has now turned politician went so far as to hold a series of press conferences during which he played guessing games with the media about how much he had paid entire police stations to run illegal businesses. In November 2004 a group of academics reported on a study of police stations across Bangkok that found every rank in every police station engaged in some kind of graft on a daily basis. Public prosecutors are also known to be corrupt. In September 2004 a television station broadcast footage of a deputy provincial head of the Office of the Attorney General offering to be lenient on the defendant in a criminal case in exchange for a bribe. The prosecutor was dismissed and an inquiry established. By contrast, police are rarely disciplined for such wrongdoing. These universally corrupt practices inevitably eat into all criminal cases that relate to the protection of rights under the Covenant.
14. How the police operate to protect influential persons may be seen in the numerous cases of murdered environmental activists in recent years. As natural resources in Thailand have become increasingly scarce there have been a growing number of conflicts over their use and protection. Powerfully connected businesspeople have been implicated in numerous killings of local environmental activists-mostly ordinary villagers-but are never investigated or prosecuted. At most, the hired killers are arrested; the police, however, do not pursue the investigations further. In most of these cases the police have been accused of acting in some way to protect the perpetrators or masterminds of the killings for reasons of their money and influence. The families of victims and communities for whom they were working have few expectations of seeing justice performed.
15. The police in Thailand protect one another from prosecution. Police are the largest perpetrators of human right abuse in Thailand, and the largest numbers of complaints received by quasi-independent agencies-such as the National Human Rights Commission and the Ombudsman-relate to police abuses. However, there is no specialised agency for receiving and investigating complaints against police officers, and commencing prosecution. The Department of Special Investigation under the Ministry of Justice handles certain cases at the discretion of a special committee; however, the police investigate most cases themselves.
16. How the police act to protect one another-sometimes in collusion with other state agencies-can be seen in the case of an attack on a school bus in Ratchburi province during June 2002.ii The parents of the children on the bus-three children were killed and 12 injured-have alleged that a policeman was behind the attack. However, a local forest villager by the name of Jobi-who was subsequently also accused of being an illegal immigrant-was instead indicted for the crime, and by his account forced to admit to the crime through threats against his family. Although he has been found innocent, and despite a petition to the Crime Suppression Division by local villagers on 9 August 2004 supporting his claim and blaming the police, the Office of the Attorney General has appealed against his acquittal. This move to pursue the case against an obviously innocent man has been made all the more unfortunate in light of the fact that Jobi’s poor state of health after being held in atrocious conditions since 2002 attracted the sympathy and patronage of Her Majesty the Queen. On 27 September 2004, the Asian Human Rights Commission wrote to the Minister of Justice of Thailand regarding the case, calling for the appeal against Jobi to be dropped, compensation to be paid for wrongful prosecution and imprisonment, and an investigation to be undertaken against the accused police officer. However, to date the Office of the Attorney General has chosen to pursue the case, claiming that sufficient evidence exists to secure a conviction. On the surface, this fruitless pursuit of an innocent man serves no obvious purpose. However, for as long as the case is in the courts the Crime Suppression Division is able to use it as a pretext to not reopen the investigation into the case, thereby guaranteeing the alleged perpetrators continued impunity. Meanwhile, a lawyer working with the accused has also spoken to the Asian Legal Resource Centre of being intimidated by persons behind the killing.
17. Cases before the courts are used as a pretext for non-action by state agencies, even when the matter in the court and that being brought to the attention of the responsible officers are different. The Asian Human Rights Commission has recently approached the Ombudsman expressing concern with regards to a complaint lodged by a relative of a torture victim with the Ombudsman. [A copy of that letter is contained in Appendix III]. In that instance, the matter brought to the attention of the Ombudsman related to the alleged torture of a young man, Mr Anek Yingnuek, and his friends at a police station in Ayutthaya province. The Ombudsman declined to investigate the complaint on the grounds that it is being decided in the courts. However, the complaint brought to the attention of the Ombudsman relates to a different issue from that being addressed by the courts: specifically, whether or not the men were tortured, not whether or not they committed a number of criminal offences. The refusal of the Ombudsman to entertain the case is of concern, as it speaks to a tendency to interpret too narrowly the mandate of the office, and perhaps with the deliberate intent of avoiding difficult cases such as this. Under those circumstances, what is the purpose of the office? In this case, if the alleged torture victim must wait until the conclusion of a series of criminal enquiries against him, which may last for years, then what hope does he have of getting a complaint of rights abuse entertained in the manner envisaged by article 2 of the Covenant?
18. The government of Thailand has at each opportunity deliberately sabotaged the limited role of the National Human Rights Commission. The National Human Rights Commission (NHRC) is an important agency for the protection of human rights in Thailand, although it does not have the capacity to effect compliance of rights as envisaged by article 2. The mechanics of the NHRC have been aptly summarised in the report of the State party (paras 187-89). It is a subsidiary body that lacks the legal power to enforce its decisions: it may only propose and refer matters to the concerned agencies and parliament. Where its recommendations have been ignored, it lacks the means to do anything further. Unfortunately, the NHRC has not only had its recommendations ignored but has been subjected to attacks that have seriously compromised its position. During the ‘war on drugs’ in 2003 at least one of its commissioners was subjected to slander from the Prime Minister and a senior military official after speaking out on extrajudicial killings at a UN function abroad. He also received death threats. As a result, the NHRC was forced to spend much of its time defending its mandate and reputations of its members, rather than addressing violations of rights themselves. The Prime Minister also refused to meet with the commissioners. The Prime Minister has similarly aimed to sideline the NHRC at each time of crisis by establishing ad hoc competing bodies. After considerable national and international criticism over the large number of deaths in the ‘war on drugs’, rather than permit the NHRC to investigate alleged extrajudicial killings freely-and equip it with the resources to do so-the Prime Minister established two committees to report directly to him. Likewise, after each of the mass-killings in the south of Thailand during 2004, the Prime Minister established a proxy committee to report confidentially to him, and ignored the efforts of the NHRC to investigate properly and report to the government and public alike on its findings. The work of the House Committee on Justice and Human Rights, mentioned in the State party report (para. 190), was similarly circumscribed by the actions of the Prime Minister in these instances.
Article 6: Right to life
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
19. According to the report of the State party,
When military and police officers or the officers of the administrative agencies kill a person, they are guilty of homicide under Section 288 or 289 of the Penal Code and shall be penalized accordingly like any ordinary citizen. (para. 147)
20. In practice, without regard to other circumstances, military and police officers in Thailand who commit killings-or are engaged in organised killings of other persons-rarely face criminal sanction. The extrajudicial killing of at least 2500 alleged drug dealers, mass extrajudicial killings in the south, forced disappearances and targeted killings of human rights defenders all speak to this fact.
Extrajudicial killing of alleged drug dealers iii
21. Between February and April of 2003 at least 2500 persons were killed after being accused of being drug dealers. For the most part, these persons were shot dead by “unidentified gunmen” after reporting to police stations undertaking a campaign to eradicate drug dealers in Thailand within a three-month period. The campaign was begun via a raft of orders issued by the Prime Minister, and was buoyed by comments made throughout this period by him and his subordinates to the effect that the lives of alleged drug dealers are worthless.
22. Through a package of incentives and sanctions the administration motivated state officers to arrest or kill, or organise the killing of, persons accused of drug trafficking without regard to normal legal procedure. On 28 January 2003 the Prime Minister set the anti-drug crusade in motion via a series of orders. The incentives were mainly financial, increasing bonuses to officers for drug hauls according to the size of the taking. Warnings to government officers included threats to transfer, demote or sack those failing to produce evidence of success. Incentives were boosted in two sets of regulations issued on February 11. One of those was the Prime Minister’s Office Regulations on Bonuses and Rewards Relating to Narcotics (No. 3). This document amended two earlier reward regimes, and effectively endorsed the murder of drug suspects by providing grades of bonuses where the most efficient and expedient means for officials to be rewarded was simply to kill the accused:
Article 18 of the Prime Minister’s Office Regulations on Bonuses and Rewards Relating to Narcotics BE 2537 (1994), which had been amended by the Prime Minister’s Office Regulations on Bonuses and Rewards Relating to Narcotics (No. 2) BE 2540 (1997)… shall be replaced by the following statements:
‘Article 18: The bonus shall be given when officials proceed with a notified case leading to arrest according to the following rules and conditions:
‘(3) In a case where both the alleged offender is arrested and the exhibited narcotics are seized, but the alleged offender loses his life during the arrest or thereafter, if the value calculated based on the quantity of narcotics exceeds 1000 Baht, the bonus shall be paid according to the quantity of narcotics when the Public Prosecutor has ceased the proceedings’ [italics inserted].
23. At later dates, rewards and sanctions were further increased. Informants and arresting officers could claim percentages of seized assets. The government also decided that drug-free villages would be entitled to additional state aid. Similarly, outstanding officials would be awarded medals. Provincial governors and police chiefs were ordered to meet a strict timetable. Their performance was measured by statistics on drug dealers ‘removed’ from society on a month by month basis. Underachieving provinces were announced publicly and senior officials openly threatened with the sack or transfers. An enormous amount of pressure was applied to meet unreasonable and arbitrary targets.
24. The death toll from the start of the campaign in February was dramatic. Dozens of people were killed daily. [A list of names of over 600 persons reported killed in national and local newspapers and other public documents, most of which occurred in the month of February, is contained in Appendix II]. An anonymous police colonel was reported as having said that his superiors had in fact ordered him to collect information on drug dealers and then kill the informants and track down and kill those named. As a symbolic gesture, a police station in the north piled a dozen coffins onto its doorstep. At the end of February, police in most places had already dealt with their key targets, but were under pressure to continue meeting monthly percentiles imposed on them by headquarters. Officers increasingly went after informants or persons with tenuous links to suspects who had already been ‘removed’ from the lists. Persons who had merely participated in drug control programmes were targeted. In some places, ‘complaints boxes’ and anonymous hotlines were set up for people to inform on one another. Police are alleged to have increasingly resorted to planting of evidence and coercion to obtain confessions from suspects.
25. Public language by the highest government officials enabled and encouraged the killing of alleged drug dealers. The Prime Minister consistently portrayed drug dealers as sub-humans deserving to die. He also played down the deaths relative to the apparent successes of the campaign, wondering aloud why the killing of thousands of people who had not yet been proven guilty of any crime should be worthy of public attention or scrutiny. In reiterating the official line, that most deaths were just cases of “bad guys killing bad guys”, or “killing to cut the link”, he stated that the government had no responsibility to protect undesirable citizens. It is also reported that privately he told senior officials that the ‘war’ would operate on a shoot to kill policy. The Prime Minister’s remarks were supported at all levels of government. The language used by the Prime Minister and his officials throughout the campaign also sought to evoke a feeling of being at war. Over time, this language found its way into policy documents, such as Prime Minister’s Order No. 60/2546, which states in its preamble that “the ‘Concerted Effort of the Nation to Overcome Drugs’ is specifically regarded as a state of war”.
26. Confusion was created through the use of lists linked to the killings. From the start, there were contradictory stories about how lists of alleged drug dealers were prepared, how many there were, and the implications of being on one. There appeared at times to be competing lists, and different ways of managing them in different provinces. They seem to have been drawn up from August 2002 by the police, village heads and local administrative bodies under the Interior Ministry, and the Office of the Narcotics Control Board. Whereas the police claim to have relied upon informants and leads, it appears that often they just added names from records of earlier convictions-some going back years. As for the lists prepared by local administrators, reports suggest that in many places the village or subdistrict chiefs simply called public meetings and asked people to inform on persons selling drugs in the neighbourhood, without any further investigation. The Ministry of Interior claims that lists were cross-checked before final definitive versions were sent out, however in some places police refused to rely on the Interior Ministry lists after criticism that too many innocent persons were being arrested or killed.
27. Although the manner of deaths varied across the country, the most commonly described pattern was as follows:
i. A victim’s name would appear on a list. The list would be made public knowledge, by word of mouth, or other means.
ii. The victim would receive a letter or some other notice instructing her to go to the police station.
iii. At the police station, the victim would be coerced to sign something admitting guilt, or otherwise acknowledge guilt, with promises by the police that her name would be removed from the list.
iv. The victim would be shot on the way home, or within a few days, usually by a group of men in civilian clothes, in daylight and in a public place or at her house, often in front of and without regard to witnesses.
v. The police would fail to investigate the killing properly, and would concentrate on establishing the victim’s guilt as a drug dealer.
28. The number of reported killings changed throughout the campaign. In February, the Interior Ministry published a daily count of arrests, seizures and killings. As attention increasingly focused on the death toll, the government grew uneasy and accused journalists of misrepresenting the tally. By the end of February, public releases of statistics on killings were banned, in response to growing criticism. At the date of the last official tally, on February 26, 1140 persons had been murdered. However, later police did release statistics indicating that to April 16, 2275 persons were killed, 51 by their own agency in “self defence”. By the end of the month the figure was estimated to be around 2400; however, by this stage the government was backing away from the statistic, arguing that perhaps half of the murders had been incorrectly recorded.
29. International standards were publicly disdained. With growing international unease over the killings, as talk grew of possible United Nations involvement, the Prime Minister reacted with annoyance and told his fellow citizens on February 15, “Don’t try too hard to live up to international standards. Our country already looks good in the eyes of the international community.” The Prime Minister also famously remarked to the media that “the United Nations is not my father”, and made a personal and altogether unnecessary attack on the Special Representative of the Secretary General on human rights defenders when she raised concerns over the number of killings during a brief visit.
30. The killings weakened institutions designed to uphold the rule of law in Thailand and thereby realised the climate for further killings and other grave abuses to follow.From February 2003, the Asian Legal Resource Centre pointed to the fact that the effect of large-scale extrajudicial killings on Thailand would be more serious and dangerous than the effect of the drugs they were ostensibly aimed at eliminating. By orchestrating large-scale killings, the government of Thailand encouraged the perpetuation of feudal practices and thinking, where punishments were meted out at the wish of rulers without any references to limits imposed by law and morality. They applied the principle that operates behind the worst atrocities of history, that there exists a class of persons who can be eradicated simply because they are deemed socially undesirable-in this case, alleged drug dealers.
31. The legitimacy of policing in Thailand was seriously damaged through direct or indirect involvement in the killings. A law enforcement agency that knows it has blood on its hands cannot think of itself with a sense of integrity. When there is such doubt in an organisation, it is difficult to control corruption. That task is made more difficult by the hardening of the nexus between criminals and police necessitated at the time of large-scale killings. The killings of alleged drug dealers involved specialised well-coordinated sharing of functions between police and criminals. The result inevitably was a strengthening of the bonds between the actual killers and the planners of the killings, including those in government. This in turn brought more secrecy and compromises: the police and government officers complicit in the killings necessarily denying responsibility for what has happened. Falsehood is thus made a normal part of communication, which in turn affects the nature of the institutions. Public relations are characterised by deception. The image of the police institution is worsened. Under such circumstances, it is inevitable that more and worse events are to follow.
Mass extrajudicial killings
32. While the south of Thailand has most recently been the subject of international attention after the devastating Indian Ocean tsunami, the region was punctuated with deaths throughout 2004, the result of increasingly aggressive policies to suppress regionalist aspirations. In the late 1990s, the government had achieved a measure of success in obtaining greater understanding with people in the south through negotiations and compromise. Regrettably, the last two years have seen a return to confrontation. As a consequence, violent incidents grew sharply in 2004 and have continued up to the present.
33. Among the killings in the south throughout 2004, two mass killings stand out sharply: the Krue Se mosque massacre in April, and the Narathiwat killings in October. As these have been reported widely, the facts are briefly restated here before turning to related questions.
34. The first mass killing occurred on April 28. It was spread across provinces where hundreds of lightly-armed young men attacked police and army outposts, but was centred on the Krue Se mosque, where the largest number were holed up. In total at least 107 were killed in the name of “self-defence” by the security forces. However, within a short time many questions arose regarding the ruthless nature of the killings and extremely high death toll. Indications were that the security forces were anticipating the attacks, mostly by groups of teenage boys and young men wielding machetes. Yet rather than do something to avert bloodshed, the security forces lay in wait for their prey. Most of their victims were gunned down well short of their targets. At the Krue Se mosque, 32-who by that time were posing no threat-were killed in cold blood after a stand off that lasted for around nine hours. The Prime Minister was very quick to endorse the killings, and even suggested that the police and soldiers involved would be awarded for their service, thereby guaranteeing further bloodshed.
35. The second mass killing occurred on October 25, when at least 85 persons were killed in Narathiwat province, 78 of them while under army custody. The killings occurred after a group of protesters had gathered at the Tak Bai police station to demand the release of six men being held without charge on minor criminal offences.iv There remain questions over the true number of killed, injured, and disappeared, due to the way in which the killing was handled by the administration. Video footage that shows security forces attacking protesters with a relentless barrage of gunfire makes it hard to believe official assertions that only six or seven were killed at the site of the protest itself. More recently, the government has tried to suppress distribution of this video footage through threats of criminal prosecution on the spurious ground of national stability.
36. The 78 protesters who died in custody were among over 1300 persons arrested out of a crowd of an estimated 3000. The crowd had assembled to demand the release of six persons detained for almost two weeks on relatively minor weapons charges; all of them bailable. Since the tragedy, the six men have in fact been freed. Many of the arrested persons, and those who died, were spectators who had gathered to watch the protest, but were not actively participating. The arrested persons were loaded into army trucks like logs, and most are reported to have died from suffocation and the effects of tear gas, although witnesses have claimed that many were severely beaten before being loaded into the trucks. The army said that there were not enough vehicles to transfer the detainees to a distant army camp, and therefore they were loaded in this manner.
37. No judicial enquiries followed the mass killings. Although independent and public judicial enquiries were imperative after each of the killings, none was forthcoming. In both cases, the government appointed ad hoc enquiry committees, answerable directly to the Prime Minister. In neither case have the findings been made fully public. In each case, the senior-most officers identified as responsible for killings faced only minor disciplinary reprimands, by way of temporary transfer to inactive posts.
38. In the case of the April 28 killings, the fact-finding commission was restricted in its mandate to the deaths at the mosque alone. A short summary of its findings released to the media on August 3 revealed that it felt the killing of those inside the mosque was unjustified, and had resulted directly from the army commander in charge attacking with heavy weapons and ammunitions. While recommending compensation payments and the preparation of contingency plans to prevent future similar incidents, the fact-finding commission also observed that, “Investigations should be pursued through the appropriate organs within the judicial system for those officials involved claiming their actions were in fulfilment of their duties.” Notwithstanding, the government chose to ignore this recommendation.
39. Again, in the case of the Narathiwat killings, the response of the government was to establish a fact-finding commission into the deaths answerable to the Prime Minister. This was despite the fact that the distinctive characteristic of these killings, compared to those in April, was that most had occurred in custody. Whereas the army officer responsible for the killings at Krue Se had public security as a pretext, those in Narathiwat could offer no such explanation for the large number of men who died packed like sardines in army trucks. Instead, bad planning was held as the cause of death, despite ample reports suggesting more to it than that. The outcome of the enquiry into the Narathiwat killings was virtually a facsimile of the Krue Se enquiry: however, it is understood not to have recommended criminal action against the three generals identified as primarily responsible. Again despite government promises, the full report has not been made public.
40. After the matter of Narathiwat was turned over, with government approval, from the enquiry commission to the Ministry of Defence, it was dispatched within a short time. The three generals identified as having been primarily responsible for the killings were rebuked and transferred, but leniency was the watchword as they had ‘not intended’ to kill anyone. This conclusion violates the Thai Penal Code and 1997 Constitution and flouts the State party’s obligations under the Covenant. The power to excuse the perpetrators of serious crimes from prosecution lies not in the hands of any one person or his office. It is a matter for the courts. The Thai authorities must stand accused of wanton failure to prosecute those responsible for the mass killing in Narathiwat in accordance with these provisions until such a day as they decide to take the proper and necessary steps to the contrary.
41. The United Nations was also denied a role in investigating the killings. On October 28, as the news was breaking of the Narathiwat killings after intervention by the deputy director of the Forensic Science Institute, the Asian Legal Resource Centre wrote to the High Commissioner for Human Rights calling for her immediate intervention. The High Commissioner expressed concern over the incident in the course of the same day, and urged that a “swift, independent and thorough” investigation follow “with results made public”. Shortly thereafter, the Special Rapporteur on extrajudicial, arbitrary or summary executions requested permission to visit, but was publicly rebuffed by the Prime Minister. The Asian Human Rights Commission subsequently urged the government to reconsider the offer, and received a letter from the Minister of Justice dated 30 December 2004 to the effect that he had transmitted its concerns to the Prime Minister; however, it is unaware of any developments since.
42. The denial of proper impartial judicial enquiries into mass killings is offensive both to the letter and spirit of domestic law and the Covenant. When a death in custody occurs, a state agent must be held criminally responsible. Arguments to suggest that the deaths were accidental, were caused by poorly trained personnel, or were due to other extenuating circumstances are unacceptable. Article 4 provides that certain rights under the Covenant may be departed from only to “the extent strictly required by the exigencies of the situation”; under any circumstances, the right to life is one from which no derogation is permitted. Without regard to other factors, once the victims were in custody of the army, its personnel had a duty of responsibility and care for them. Where those rights were violated, a remedy must be provided in accordance with article 2. However, no such remedy has been made available to the families of the victims in this instance.
43. Both domestic and international laws have obligations pertaining to the minimum standards of treatment of detainees. Article 26 of the 1997 Constitution of Thailand states that, “In exercising powers of all State authorities, regard shall be had to human dignity, rights and liberties in accordance with the provisions of this Constitution.” Minimum standards of treatment for detainees are laid out in articles 7, 9 & 10 of the Covenant. However, neither of these sets of standards has been applied with regards to the deaths in custody at Narathiwat.
44. The struggle over the truth of the mass killings in the south has in reality been a struggle between the people of Thailand and the military over who has control of society. The exoneration of military personnel and success in concealing the truth through pressure from the army, which objects to civilians scrutinising its activities, speaks to the continued entrenched power that this institution enjoys in Thailand. The effect has been to remove the control over procedures following gross human rights abuses further from the public.
45. In exonerating the three generals held largely responsible for the killings at Narathiwat, the army commander-in-chief also made a surprisingly frank and pertinent admission. “There is no disciplinary penalty for those holding the rank of general,” he is reported to have said. This statement again speaks to a feudal way of thinking among the governing elite. It reveals how far removed the thinking of top military officers in Thailand is from civilised ideas of what constitutes a modern society and its armed forces. The military principle of command responsibility is that the higher one’s rank the greater the onus when things go wrong. A high officer is more liable than a low one. In Thailand, however, it appears that the higher one goes the lesser one’s responsibility. And if one is promoted to general there is no responsibility at all. If the high-ranking officers in any armed forces are permitted to escape the consequences of their actions, let alone think in this manner, it is impossible to secure the rule of law. Under such circumstances, the State party’s subscription to the rights that are guaranteed under the Covenant is nothing more than pretence.
46. Equality before the law requires that all citizens be treated equally for their offences. The State party assures us in its submission that this principle is applied in Thailand. Regrettably, in this instance all indications are to the contrary. The gravity of the offence and not the rank of those who committed the crime should be the determining factor in taking action. That these crimes were committed by the military does not make them lesser crimes. The quality of citizenship is not a matter of military rank. A crime is a crime whether committed by the least important person in a society or the most important one.
47. Thus, the statement of the Thai commander-in-chief is offensive. It offends the ideal of equality before the law, and it offends the fundamentals of the rule of law and human rights as established under the Covenant. When large-scale killings under the command of senior officers are treated as mere trifles, the security forces and society alike are sent a message that they live by different standards. The deaths in Narathiwat last October lowered the esteem of the armed forces and law enforcement in Thailand both at home and abroad in the same manner as the large-scale killings of the year before did to the reputation of the police. When the highest military officer in the country then belittles the whole affair, it is unlikely to do anything other than further diminish the reputation of the military. It certainly will do nothing to diminish the daily escalating violence that has held the south of Thailand in its grip since the killings occurred last year.
48. Numerous questions remain unanswered. As the findings of the commissions of enquiry have not been made public and no proper independent judicial enquiries have been held, a great many questions arising from the killings-particularly those in Narathiwat-remain unanswered or unsatisfactorily answered. Among these, who made the decision to transport the arrested persons to a distant army camp? At the time of making such a large number of arrests, some 1300 in total, the question of where all the people would be held must have arisen. Somebody had the obligation to decide the place and means of detention. How was this decision reached? Where any alternatives discussed, or not? For instance, most of the arrested persons could have had their details recorded from identity cards and been released, with just the suspected ringleaders being held for questioning. That most of the people fortunate to survive were subsequently released without any further consequences speaks to the fact that this could have been done in the first instance. Was this option entertained? Was any other alternative discussed?
49. The shortage of vehicles is also cited as a key reason for the large number of deaths. The officers in charge should have considered how they were going to transport the large number of detainees before they arrested them. But even if they had not done so, the military can hire private vehicles at short notice, and under martial law can even take them by force. To find adequate transportation for 1300 people is not a big issue for an army, and under the circumstances, one of its basic duties. Why was this not done? The explanation that there were simply not enough vehicles available is as shocking as the incident itself. Can it be accepted that the military, acting on behalf of the government, simply did not think of this before arresting all those people? It is hard to believe that the chain of command was so ineffective that even the most rudimentary discussion on providing transport was absent from communications.
50. Who decided to stack the people in the trucks one on top of the other? Was it a decision made by one person on the scene, or by an operations command? Who had the authority to give such an order? Even if the procedure for arrests was not thought out properly before hand, the officers in charge should have taken measures to prevent harm coming to the detainees. Were animals loaded in this way, it would be regarded as cruelty to animals. However, it does not seem to have been of any concern to those responsible to treat humans in this manner. Did not the truck drivers point out that the people could not live long being piled up like that? Did the soldiers not consider the natural consequences of their actions? Or, as some eyewitnesses have asserted, did they act as they did with expectation that people would die? Perhaps the explanation lies in the most recent concession by the army that some of the victims may already have been dead before being loaded on to the trucks; hence the need to load living people lying down also, in order to conceal the crime.
51. There must be rational answers to these questions: ordinarily, these are to be found in routine internal records. Do such records exist, and what can they tell of what happened? What internal enquiries have been conducted, apart from what has been made known public? After such an operation, military intelligence and other agencies can be expected to investigate immediately, establish the facts clearly, and make reports to the top command. However, to date the public has been left in the dark, as the findings of the government-appointed enquiry have not been revealed.
Role of the Attorney General
52. Many of the preceding questions raise issues over the role of the Attorney General in Thailand. The report of the State party indicates that the Attorney General has the power to decide whether or not to prosecute in cases of extrajudicial killings by state agents under Section 143 of the Criminal Procedure Code (para. 152). However, in both the killings of alleged drug traffickers in 2003 and the mass killings in the south in 2004 the Attorney General was conspicuous by his absence, despite the numerous questions that remain to be answered by way of judicial enquiry.
53. Under section 148 of the Criminal Procedure Code of Thailand, when there is a death in custody, the rights of the victim are upheld by way of a post mortem autopsy and investigation into the cause of death. Under section 150, three agencies must be involved: the forensic doctor, investigating officer, and public prosecutor. With the autopsy completed and report submitted, it is then the job of the public prosecutor to approach the court in order that it carry out an inquest, with a view to entering into criminal proceedings if necessary. This process should under no circumstances be delayed, such as by reason of a politically appointed enquiry also being under way. It is the role of the public prosecutor to investigate and prosecute all crimes, including those committed by government officers, without regard to other factors. However, in the case of the mass killings in 2004 the Attorney General did not play this role.
54. In a letter to the Minister of Justice of November 12, the Asian Human Rights Commission pointed to the absence of the Attorney General in investigating the Narathiwat killings, and questioned the apparently uneven application of criminal law in the country. [That letter is contained in Appendix III]. It pointed out that the numerous inconsistencies and gaps in various stories regarding the events of October 25 spoke to the important role of the Attorney General in investigating and prosecuting persons responsible for such killings. In particular, it urged that the Attorney General should at once begin criminal proceedings against the alleged perpetrators of the 78 custodial deaths. However, the minister did not entertain a reply, and like the Attorney General, has remained noticeable by his absence from public debate on these killings.
55. Since then, the key officers implicated were exonerated by way of internal military procedures. But how is it that the fate of these officers was left in the hands of the military at all? And even if the matter was turned over to the military it should have been addressed through a properly-established formal tribunal, operating under established procedures for investigation and punishment, rather than being treated with casual disdain behind closed doors.
56. In none of the large-scale killings in the recent years has there been any evidence of a concerted effort by the Office of the Attorney General to perform its functions under the Constitution. This again amounts to a negation of article 2 of the Covenant, which obliges the State party to have a functioning public prosecutor or equivalent capable of documenting complaints quickly and thoroughly, investigating and collecting evidence, and prosecuting alleged perpetrators.
57. It is a basic norm everywhere in the world that arrestees are treated humanely and kept under judicial supervision. Why has the judiciary in Thailand failed to guarantee the same for victims of the military there? Its failure to secure legal action speaks to radical defects in Thailand’s justice system, speaking particularly to the role of the Attorney General. While initial responses to the killings gave hope, it lacked the capacity for a sustained fight against more powerful forces. It lacked the inner strength needed to secure and stand by universal norms of justice: that perpetrators of crimes be brought to account for their actions. The experience of the victims and their families after the mass killings in the south has been that impunity is more deeply entrenched in the judicial system of Thailand than is justice. Thus, the system continues to be driven by feudal rather than judicial imperatives. The families of victims in the ‘war on drugs’ and those of numerous other gross human rights violations throughout the country in recent years have had the same experience. The effect is to reinforce a perception in society that when the security forces and their accomplices kill, nothing can be done. Where there is a feeling that nothing can be done, there is silence: no one bothers to risk speaking out against crimes for which the perpetrators enjoy absolute impunity.
Role of the Forensic Science Institute
58. The Forensic Science Institute was established because of a recognised need for an independent and professional body to identify and assess dead bodies. This has been acknowledged in the State party report (paras 154-55). Quite rightly, this agency is necessary in order to act as a checking measure against uncontrolled killings by the police, and deliberately manipulated or botched autopsies under conventional procedure (para. 149). But despite in-principle recognition of the need for such an agency, the Institute has been obliged to fight for its mandate from its inception. In the face of the large-scale killings of the recent years it has been hard-pressed to fulfil its mandate, and not surprisingly it-and particularly its deputy director-has been the subject of police ire.
59. The police have not referred cases of extrajudicial killings to the Forensic Science Institute. The bodies of alleged drug dealers killed in 2003 were not sent. Whereas police sometimes reportedly excused themselves from conducting proper autopsies on the ground that they needed all their resources to meet the government targets, the Institute’s deputy director Dr Pornthip Rojanasunan observed that her agency had resources available to help investigate cases, but the police were not seeking its assistance. Whereas before February 2003 her central Institute had typically examined one to two extrajudicial killings per day, the number of referrals had since dropped to zero. She said that relatives of those killed had contacted the Institute directly to get help in having the deaths properly investigated. However, attempts to intervene in cases were thwarted by prior autopsies in other locations and removal of evidence. She added that in more than half of the cases seen by her drugs appeared to have been planted on the victims after their deaths. Other doctors also reported that they were reluctant to attend the scenes of drug-related shootings as required by law, or record anything that did not verify the police version of events.
60. After the killings in Narathiwat too four doctors from the Forensic Science Institute conducted partial examinations of the 78 victims removed from army trucks, and took samples for further testing. Their role was critical in exposing the scale of the tragedy at a time that the military might have preferred to conceal it. However, full autopsies were not conducted: nor were officials from the police or public prosecutor reported to be present as required in order to begin prosecution.
61. The police have attempted to subvert the role of the Forensic Science Institute.That the police have targeted the agency has been evidenced most recently in the aftermath of the Indian Ocean tsunami-a matter of international concern given the number of foreign victims on the beaches of Thailand. Shortly thereafter, the government sought outside assistance for the identification of bodies. However, the important work of forensic experts from abroad in identifying the remains of victims has had a dangerous effect on the fragile relationship between the police and the Forensic Science Institute. After the Institute initiated all the work of identifying bodies, the police succeeded in wresting control of the enquiries. Although on the surface the dispute was about the most efficient means by which the very large number of victims from the cataclysm may be properly identified, in reality it was about the power over forensic science in Thailand as a whole. These latest attacks on its mandate and reputation speak to a concerted effort by the police to completely undermine its role. More troubling still are recent allegations that police have kidnapped volunteers who worked with Dr Pornthip during the tsunami recovery effort and interrogated them on the work of the Institute. At least one of these victims is since reported to have received witness protection. These allegations speak to a very real threat to the future of the Institute and its work that is analogous to the threat facing the public over its right to control and determine the shape and direction of the judicial system of Thailand.
62. The Asian Legal Resource Centre has heard of a rapid increase in the number of forced disappearances in Thailand, most in the south of the country. These disappearances have accompanied the recent spread of sectarian violence in the region, but are known to have preceded it as well. After the mass killing in Narathiwat, allegations emerged of tens to hundreds of persons missing. Due to the manner of handling the case by the government, reliable evidence to either support or repudiate these claims has not been forthcoming. As the ALRC lacks detailed information on the numerous reported cases in the south for reason of the very difficult security conditions in the region, here it concentrates on the forced disappearance of high-profile human rights lawyer Mr Somchai Neelaphaijit as indicative of the problem as it stands in Thailand.v Indeed, despite immense efforts and a high-level of publicity to date there has been no satisfactory conclusion to this case, which speaks to the enormous obstacles faced by any person in Thailand seeking to have a forced disappearance properly investigated.
63. Mr Somchai was forcibly disappeared on 12 March 2004 while representing four men who alleged that they had been tortured. He was taken from his car while in Bangkok, allegedly by five police officers. Details of the incident have been widely reported. The five officers, none of whom were known to be associated with one another prior to the alleged abduction, have been charged only with collusion to coerce and assault a person, and armed robbery. They have all been released on bail. They all deny the charges. Other police officers conducting the investigation at the scene of the crime are reported to have damaged important evidence, such as by sitting in the vehicle themselves before it could be examined by forensic experts. Senior police have publicly backed their charges.
64. Government comments on the case of Mr Somchai have been characterised by contradiction. In a letter of 5 August 2004 to the Asian Human Rights Commission, the Minister of Justice wrote that the Prime Minister “had given a clear command to all Thai agencies concerned that every necessary measure must be taken to search for Mr Somchai Neelaphaijit’s whereabouts, and those who are responsible for his disappearance and safety will have to be brought to justice without exception”. Among these measures, he added, “an ad hoc committee under the responsibility of the Special Investigation Department (SID), the Ministry of Justice has been set up to work on information gathering, forensic evidence as well as other investigation for the case”. He further stated that this committee had made “a lot of progress”. However, the minister has since stated publicly that the matter is not with the Department of Special Investigation, nor is he prepared to transfer it to the Department. He has also stated that no one has approached him to have the case taken up by the Department. However, the ALRC is aware that the wife of the victim, who is a joint plaintiff in the criminal case against the five accused police, the Law Society of Thailand and the Thai Working Group on Human Rights Defenders have initiated requests to this effect to the minister. The wife of the victim has claimed that her application to the Department was refused. The AHRC has communicated to the minister about the case on a number of occasions, most recently on 24 February 2005. [That letter is contained in Appendix III]. Finally, on the first anniversary of his disappearance it formally submitted a petition to His Majesty the King of Thailand, via the Consul General in Hong Kong, requesting that his office pay particular concern to this case. [The petition to the King is enclosed in Appendix III].
65. The scale of disappearances in Thailand remains unknown due to the lack of any directed effort by government or non-government agencies to take up and document the issue; however, anecdotal evidence suggests that it is extremely high. Reliable reports obtained by the ALRC indicate that the incidence of recent disappearances in that region is in the hundreds, if not thousands. Additionally, the deputy director of the Forensic Science Institute has stated that her agency alone receives around 1000 bodies annually that it is unable to identify. Many of these bodies are found under suspicious circumstances. The families of all these victims could benefit from the introduction of effective legislation to stem the practice of forced disappearances in Thailand.
66. The disappearance of Mr Somchai remains of tremendous significance to the situation of human rights in Thailand because it amounts to a challenge to the very foundations of the justice system in dealing with gross violations of rights there.How is it that the justice system in Thailand has proven so completely incapable of dealing with such a public case of disappearance, even after the initial steps of the crime have become widespread knowledge? Is the hold that impunity has on the system of justice in Thailand so strong that it is not possible to break even when there is deep public and international concern? The victim’s wife has expressed doubts over the ability of the justice system to afford her a remedy for the loss of her husband, with good reason. The Asian Legal Resource Centre shares her suspicions and doubts, as will all reasonable people.
Article 7: Freedom from torture
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
67. As the State party has noted in its report, article 31 of the 1997 Constitution prohibits torture, in accordance with article 7 of the Covenant (para. 184). However, there is no domestic law to prohibit torture in Thailand. Nor are there provisions in the Penal Code that would effect the same. Nor has the State party as yet ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Nor does any specialised agency exist to address the widespread practice of torture in Thailand in any way, shape or form. Nor does any domestic campaign exist to give effect to the same; in fact, where human rights defenders or other citizens attempt to bring cases of torture to the public attention they may be subjected to very serious threats. Nor do the provisions outlined by the State party in its report that purportedly prevent the practice of torture have any real effect.
68. Torture is routinely practiced by the police in Thailand. Reports also exist of the practice occurring to a lesser extent among the armed forces. However, the Asian Legal Resource Centre has obtained the largest amount of information on the practice of torture in Thailand with reference to the police.
69. Among the police, torture is practiced both in cases of alleged security threats, and in ordinary criminal cases. Some examples follow.
70. On 26 July 2004, the ALRC communicated the details of a grave torture case to the Special Rapporteur on the question of torture. vi[That letter, with full details of the case, is contained in Appendix III]. The five victims, Makata Harong (49), Sukri Maming (37), Manase Mama (25), Sudirueman Malae (23), and Abdullah Abukaree (20) were arrested and allegedly tortured in connection with a raid on an army camp by officers of Tanyong subdistrict provincial police station, Narathiwat province. After arresting the men on February 23, the police approached the court to continue keeping them in custody. On March 4, the lawyer for the men, Somchai Neelaphaijit, sought a court order that they be taken for physical examination, alleging that they had been tortured. His submission included the following remarks:
The 4th Suspect was blindfolded by police officer(s) and physically assaulted; strangled and choked, hand-tied behind his back and beaten with pieces of wood on the back and head, suffering some head wounds. In addition, he was also hanged from the toilet door with a piece of rope and was then electrocuted with a piece of fork charged with electrical currents, on the back of his torso and right shoulder.
71. Frustrated by his inability to get a judicial response to his applications, Somchai went to government authorities in Bangkok on March 11. The following day he himself was forcibly disappeared.
72. On May 18 the Criminal Court released the five men after the 84-day statutory limit on detention expired without charges being laid. However, the police immediately rearrested four of them on new charges. To date, none of the alleged perpetrators have been held to account for their actions. Attempts by a senate subcommittee investigating the case to identify officers through photographs reportedly were blocked by police refusing to assist. A member of the National Human Rights Commission also is reported to have stated that the men were “severely tortured by the police but the court did not ask for any detailed information on that torture nor send them to receive any medical treatment”.
73. On 12 November 2004, the Asian Human Rights Commission wrote to the Minister of Justice concerning two very grave cases of torture and cruel and inhuman treatment committed by the police.vii [The letter is contained in Appendix III]. Both incidents related to allegations over ordinary criminal cases:
i. Mr Chol Narapinit (28), and his wife Ms Siri-on Changluadlai (17), alleged that the police assaulted them and stole a gold necklace from their possession after accusing them of theft; Ms Siri-on was pregnant at the time. They were then kept in detention at Lumpini police station in Bangkok for 102 days without charge, before finally being released by a court. This period exceeded the statutory limit by 18 days. During this time Ms Siri-on gave birth to a child, but obtained no assistance from the police officers in the station. Her relatives came and took the child from her after five days. It is also alleged that the officer in charge of the case, Police Major Kriangsak, recorded her age as 19 to avoid having to treat her as a juvenile detainee under the Child Protection Act 2546 (2003), established to comply with the Convention on the Rights of the Child. Disciplinary action was taken against some officers, however no criminal charges are known to have been laid, despite early reported remarks by the Minister of Justice that these would follow. Meanwhile, the police acted quickly to issue new charges against the couple and have them rearrested.
ii. Mr Ekkawat Srimanta (21) was brutally tortured by officers attached to two police stations in Ayutthaya province on accusation of robbery during the first week of November 2004. Officers at Phra Nakhon Si Ayutthaya station are alleged to have covered his head with a hood and beaten him all over his body. Then they transferred him to Uthai police station, where officers electrocuted him, causing severe burns all over his testicles, penis, groin, and toes. He also suffered severe injuries from beating, including on his back, thighs, cheeks, face, throat and eyes. Again, internal disciplinary action was taken against the accused officers, but there have been no reports of criminal proceedings. This is despite initial statements by senior officials that judicial action would follow, and enquiries having been taken up by the Department of Special Investigation under the Ministry of Justice.
74. Subsequent to these two cases, the ALRC heard reports of further complaints of torture at the Phra Nakhon Si Ayutthaya station. It then uncovered two further credible cases of alleged torture by police there involving six victims:
i. Mr Metta Saiphan (24) and Mr Anucha Siriporn na Ratchasima (28), who were both arrested on 31 March 2004, allege that they were also tortured by officers of the Phra Nakhon Si Ayutthaya police station.viii The types of torture allegedly used included suffocation with layers of plastic bags, beating on the body, using pepper spray, and standing on the chest. The men were told that if they did not confess to charges of theft, they would have another nine charges added against them. After this time, they confessed. It is also alleged that the police did not place them in a line-up for identification by the complainant. The two men subsequently retracted their confessions; however, they were sentenced to imprisonment in December 2004. Although in the latter stages of trial a lawyer for the men argued that they had been tortured, the court rejected the argument due to lack of evidence. [The letter on this case to the Minister of Justice is contained in Appendix III].
ii. Mr Anek Yingnuek (24) was arrested on 9 September 2004 on a charge of robbery and also allegedly tortured at the Phra Nakhon Si Ayutthaya police station.ix The types of torture included being beaten with PVC pipe, suffocation with plastic bags, and electrocution, including on his penis and testicles through a bag of ice. Anek states that due to the unbearable torture, he gave the names of three friends, Mr Sukit Rachamontri (23), Mr Kampon Kongwiset (19), and Mr Pirom Kruesorn (21) as accomplices. After the three were arrested on the afternoon of September 10 they were also allegedly tortured. Mr Sukit’s girlfriend states that the police threw a bottle at Sukit’s face before beating, kicking and slapping the men. She also heard loud screams coming from the room where the men were held, before being brought out showing signs of torture. It is alleged that they were constantly tortured until 1am on September 11. The four have now been charged with gang robbery, and are being held in remand awaiting trial. [Reference to the case is given in the letter to the Ombudsman contained in Appendix III].
75. Extremely brutal types of torture are practiced but suppressed. Of particular concern in these cases is that the types of torture went far beyond the day-to-day beatings and conventional roughing-up tactics that persons in Thailand usually associate with the police. The practices of inflicting wounds and electric shocks on sensitive parts of the body suggest the work of seasoned professional torturers. This fact speaks to a concern that the Asian Legal Resource Centre has repeatedly expressed, that torture is widespread among state security agencies in Thailand: however, up until recently it was not publicly discussed. There is no domestic organisation campaigning against torture in the country. Lawyers, journalists and other concerned professionals there have for many years known about torture, but have shied away out of fear. The addendum to the 2004 report of the Special Rapporteur to the Commission speaks to this point, remarkably listing a mere three cases of torture in Thailand, all involving non-Thai nationals [E/CN.4/2004/56/Add.1, paras 1678-81]. This situation is now slowly changing; however, many more opportunities need to be made to open discussion on the practice in Thailand.
76. Torture is deeply institutionalised. Although the Asian Legal Resource Centre and its sister organisation have repeatedly raised these cases with the Minister of Justice, other relevant national authorities and international mechanisms, its is unaware of any subsequent enquiries or action. This is despite particular efforts to point out to the Minister of Justice that one of the accused police officers is suspected of being a mentally unstable serial torturer, responsible in part for the institutionalised torture at the Phra Nakhon Si Ayutthaya police station. [Appendix III contains a letter of 24 November 2004 sent to the Minister of Justice on these specific points.x] And the institutional element can be identified in each of the above-mentioned cases. That a young woman could be left to give birth in a police cell, for instance, speaks to a deep institutional tolerance of gross human rights abuse that goes from the arresting officers and those alleged to have assaulted the victims to their commanders, and their superiors.
77. Torture is approved by senior officers. It has been the experience of the Asian Legal Resource Centre in its extensive work on the practice of torture in Asia that it always occurs with either tacit or overt approval, and perhaps coordination, of persons high in the chain of command. In Thailand it is a widely shared opinion that torture is necessary to deal with ‘bad’ people. This sentiment is not only felt among the top ranks, but also openly expressed. After some of the above-mentioned cases came to light in 2004, Police Lieutenant-General Amarin Niamsakul, Commissioner of the Immigration Bureau, said in a prime-time national television interview that as police all around the world commit torture, it is reasonable that police in Thailand do so too. He added that torture was necessary to extract confessions, and that ‘bad people need bad treatment’. Although the Minister of Justice spoke publicly against his remarks, no disciplinary action was taken against Pol. Lt-General Amarin. This is despite the fact that his comments, while holding a senior government office, contradict and affront both the 1997 Constitution and the Covenant. The ALRC has since on a number of occasions called upon the government of Thailand to remove Pol. Lt-General Amarin from office. The consequence of the government’s inaction, as in other cases of gross rights abuse in Thailand, is to offer an implicit endorsement of the remarks, and encouragement for other officials to continue to speak and think likewise. As a consequence, it can be expected that the use of torture as an acceptable method for interrogation will persist and expand.
Article 9: Right to liberty and security
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
78. As noted by the State party in its report (para. 243), section 237 of the 1997 Constitution provides for the procedure of arrest in Thailand and rights of the arrested person, including to be sent to the court within 48 hours of arrest. With reference to provisions for arrest and detention, the State party has interpreted its obligations under the Covenant as follows (para. 3[d]):
On the period of time to bring the arrested person to court, Paragraph 3 of Article 9 of the Covenant has used the term ‘promptly’, the Thai Criminal Procedure Code authorized the inquiry official to detain the accused for 48 hours before bringing the person to court. If the inquiry has not been completed he can further detain the person for seven days. This is not in line with the Covenant. Therefore, Thailand has made a declaration to explain that Thailand shall follow the commitment under this provision in the manner the law of Thailand so provides at the moment.
79. Leaving aside the self-evident problems associated with selective application of the Covenant, it should be pointed out with regards to the above that this interpretative declaration does not cover the full scope of the law, which is outlined by the State party in paragraphs 249-254. As described in those paragraphs, in serious criminal cases application may be made to obtain seven consecutive extensions to the period of detention, totalling 84 days. The State party gives the impression in its report that a system of checks and balances exist to prevent unreasonable application of this provision and that “the court shall thus permit a detention of the accused during inquiry only when necessary”. However, the Asian Legal Resource Centre has observed that there are many problems associated with the periods of detention over which suspects may be held while an enquiry is ongoing.
80. Extended detention is routinely practiced in ordinary criminal cases under enquiry in Thailand. In particular, it may be applied in cases where the accused persons have been tortured or otherwise coerced into admitting guilt by the police, in order to allow sufficient period of time for fabrication of a case and the removal of evidence suggesting torture or wrongdoing. In each of the cases of torture by the police in Ayutthaya province documented by the Asian Human Rights Commission, for instance, the accused were held for the full statutory period before being charged. Despite requirements that the accused be brought to the court upon extension of the period of detention, as the courts have no particular procedures in place for quick intervention into cases of suspected torture, these provisions do not serve to protect the rights of the detained person.
81. Accused persons are often unable to exercise their rights as envisaged by the law. Most of the accused in criminal cases are ordinary people who lack knowledge about the legal system and their rights as laid out by the State party in paragraph 246 of its report. They may be intimidated in the court and in the presence of the police who may have abused them and extracted confessions by force. Their family members too may be threatened and denied access to them. In the cases of torture in Ayutthaya province, the relatives of the accused were afraid even to go to the police stations and attempt to meet their loved-ones, let alone lodge complaints about their treatment. The accused may not be able to obtain medical treatment while in detention, and are unlikely to meet with a lawyer until they have been charged and the court appoints one. In the case of Mr Chol Narapinit and Ms Siri-on Changluadlai in Lumpini Police Station, for instance, Ms Siri-on gave birth while in detention but received no medical assistance. After five days family members came to collect the child, but she continued to be held in detention in excess of the statutory period. When the couple was finally freed under a court order under section 90 of the Criminal Procedure Code, the police immediately set about issuing new charges against them. Similarly, four of the five alleged torture victims defended by missing human rights lawyer Mr Somchai Neelaphaijit were immediately re-arrested on new charges by the police upon expiration of their first 84-day period of statutory detention. Such practices defeat the purpose of the limited periods of detention stipulated under the Criminal Procedure Code, and again raise questions as to the contempt with which police in Thailand ordinarily feel inclined to treat criminal justice procedures, over which they exercise practical day-to-day control.
82. With reference to cases of compensation for wrongful imprisonment, difficulties arise when cases are still pending before the courts. In the case of the accused Mr Jobi in the 2002 Ratchburi bus shooting, his lawyer has proposed that he be entitled to compensation on this ground. However, as the Office of the Attorney General has appealed against the decision of the Court of First Instance, which dismissed the case against him, the question of compensation cannot be resolved until the matter pending before the courts is concluded. In the event that the matter goes to the Supreme Court, this would take some years.
83. Rights to liberty and security ordinarily available to persons in Thailand may be denied through application of restrictive security regulations. It should be noted that whereas the above-mentioned provisions apply under normal circumstances, Thailand has a number of laws that place more onerous restrictions on the rights of detainees. Among these, the State party has pointed to the Martial Law Act 2547 (1914), within the power of the Ministry of Defence, and the Administration under Emergency Situation Act 2495 (1952), within the power of Ministry of Interior (paras 121-22). Despite the State party’s happy assertion that no declaration of emergency has been necessary under article 4 of the Covenant, it has omitted to point out that martial law is operative in all of the border districts of the 20 border provinces of the country. Additionally, as of 5 January 2004, the entire three southern border provinces have been under the Martial Law Act; full implementation of martial law in the three provinces was authorised by the Prime Minister in February 2005. This act empowers the armed forces to detain persons for up to one week without charge or bringing them before another authority, and also to try certain persons under martial law provisions. Additionally, at the end of November 2004 the government of Thailand made the alarming proposal to introduce a new internal security law that would greatly expand the powers of police to detain persons without charge or having to bring them before the court. This proposal, had it succeeded, would certainly have placed the State party in flagrant violation of the Covenant. It was only after considerable and swift public opposition that the decision to introduce the new law was shelved.
Article 14: Right to fair trial
1. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
2. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
84. The Asian Legal Resource Centre has in reference to preceding articles drawn attention to the defects in policing and administration of justice that impinge upon the ability of persons in Thailand to obtain a fair trial in accordance with article 14 of the Covenant. In particular, the entire programme of eliminating alleged drug dealers in 2003 was premised upon the attitude, articulated on numerous occasions by the Prime Minister and other senior officials, that these persons did not deserve natural justice. Hence, a special category was created for which the provisions of the Covenant and their equivalents under the Constitution of Thailand were deemed non-applicable, and for whom any pretence of ordinary criminal procedure could be abandoned. The ALRC has pointed out that this was an extremely dangerous step that had the effect of deeply undermining principles of fair trial in Thailand.
85. Court-appointed lawyers in Thailand fail to properly undertake their duties. To ensure fair trial in accordance with article 14 it is necessary that the accused have a defence lawyer. As noted above, the law in Thailand provides for the court to appoint a lawyer where the accused does not otherwise obtain one and faces a possible prison term, in accordance with section 242 of the Constitution. However, the Asian Human Rights Commission wrote to the Minister of Justice on 9 March 2005 expressing concerns that many of the lawyers acting as court-appointed attorneys are not representing their clients adequately. [A copy of that letter is contained in Appendix III]. In the case of Mr Chanon Suphaphan, outlined in the letter, he was sentenced to 10 years in jail on allegations of robbery.xi However, an investigation of the case by the AHRC has uncovered numerous irregularities that speak to the day-to-day defects in policing and administration of justice in Thailand. These include that the police were wilfully negligent in their investigation of the case: refusing to record witness statements; when pressed, not recording all statements; not producing the witness statement in court; not making the statement available to the defendant after the first hearing. As none of the parties to the case are influential persons known to have contacts with the police that would afford them preferential treatment, it can only be surmised that the reasons for the officers’ actions have been to obtain convictions for the purpose of getting promoted and bonuses.
86. Of particular concern throughout the case, however, was the absence of the court-appointed attorney. Like the police, he was totally disinterested in the needs of his client. In fact, it would be fair to say that he did even less than the police, perhaps expecting that the case would be dropped or perhaps without any interest for the consequences at all: simply telling the defendant that he didn’t have anything to worry about. He failed to undertake any proper investigation into the case or challenge the failure of the police to present evidence in court. In short, he knew and did nothing about the case. Regrettably, the ALRC has observed that in most other cases where accused persons are represented by court-appointed lawyers in Thailand, they have received little if any real legal assistance. The case of Mr Metta Saiphan and Mr Anucha Siriporn na Ratchasima detailed by way of a letter [in Appendix III] is another example of the same. This observation was echoed recently by an elderly villager with whom a staff member spoke, who said that, “In my experience, people who have public defenders are found guilty.” Attempts by staff to obtain advocates from the Law Society to replace those appointed by the court have also been less than successful. On one recent occasion when a provincial Law Society chief was asked to provide a lawyer instead of the one from the court he replied that one wouldn’t be any better than the other.
87. As most of the persons being represented by court-appointed lawyers in Thailand are poor people facing ordinary criminal charges, the non-performance of duties by court-appointed lawyers has a detrimental effect on the routine enforcement of rights under the Covenant. The question that should be asked is in how many courts the public defender is actually serving the interests of the public prosecutor? The consequences of this unfortunate situation fall not only on the accused, but also on society as a whole. When large numbers of people subscribe to the opinion voiced by the villager mentioned above, the effect is to cause a general demoralisation in society, and loss of faith in its key institutions. When people lose faith in the ability of the judiciary to perform its functions fairly and properly for reason of inactive and disinterested police and public defenders, the rule of law is further undermined.
Articles 16 & 26: Recognition and equality before the law
Everyone shall have the right to recognition everywhere as a person before the law.
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
88. While the preceding discussion is applicable to the entire population of Thailand, the Asian Legal Resource Centre is aware that certain groups in the country are faced with greater obstacles in obtaining their rights as stipulated under the Covenant relative to others. In particular, certain non-Thai ethnic groups suffer from a lack of recognition before the law and discrimination as they have not been recognised as citizens, or denied full rights of citizenship. Additionally, both legal and illegal migrants from neighbouring countries, particularly Myanmar (Burma), suffer myriad forms of discrimination that impinge upon their ability to effect their rights as envisaged under the Covenant.
89. Reasons for the continued statelessness of large numbers of persons in Thailand, most of them belonging to minority upland communities, are complex and closely related to the historical development of the Thai state and concepts of identity, which are beyond the ambit of this discussion. The consequences of statelessness are easier to identify. They include denial of rights to movement-both within the country and abroad-ownership of property, education and a vote. They seriously impinge upon the survival of entire communities. For instance, in 2004 the Asian Human Rights Commission reported that on 23 July 2004, 34 men and 14 women from Pang Daeng community were arrested and charged with forest encroachment and illegal entry into the Chiang Dao national reserved forest.xii According to the Central Registration Bureau, Department of Local Administration, the affected persons have not been included in the list of ethnic groups that are eligible for citizenship. Therefore, despite the fact that they have occupied the same area in excess of some 20 years, and have been involved in government development projects in the region, they are unable to approach the courts for redress. It should also be noted that there were allegedly numerous irregularities in the procedure of arrest. These included that the police did not inform the persons that they were going to be arrested and did not obtain the proper warrants from the court as required by sections 237-38 of the Constitution.
90. Migrant workers in Thailand face numerous obstacles in securing their rights as envisaged by the Covenant, and have over many years been subjected to torture, extrajudicial killing and other gross abuses. The Asian Legal Resource Centre is aware that police and immigration officials routinely abuse migrant workers at time of arrest, in detention centres and during deportation, and also knowingly allow, and sometimes profit directly from, the promotion of illegal labour practices, the trafficking of women and children, and related prostitution. Extortion of money from migrant workers by the police and immigration officials is extremely common, and the primary motivation for conducting searches and carrying out arrests targeting migrants. Money is invariably extracted through the use of verbal threats and where necessary, torture. Women in police and immigration detention are also routinely raped and otherwise sexually threatened and abused. The arrests are very often arbitrary and without due legal process: migrants are frequently held without ever being brought before a court, or held even after being ordered released by a court. Senior officials tolerate and often cultivate the climate of impunity in which abuse and exploitation of migrants persists. Human traffickers, brothel owners, employers of illegal workers or state officers who kill migrants are rarely subjected to prosecution, or if so, found guilty. Migrant workers also face the same obstacles in lodging complaints and obtaining redress as envisaged by article 2 as their Thai counterparts. In addition, they face numerous other obstacles, such as the lack of a common language and lack of awareness about their basic rights. They may be confined to their workplace or in a geographically remote location.
91. Among the large numbers of migrant workers in Thailand, the vast majority is from Myanmar. There are no reliable figures on the actual number of these people in Thailand; some estimates suggest as many as two million. Over 350,000 have been registered, although the system for registration of migrants and the number of persons eligible changes frequently. Most people coming into Thailand from Myanmar enter at various points on the border, and are employed in industries and activities in border areas as well as in and around Bangkok. They are extremely vulnerable to all types of human rights violation, ranging from denial of wages and police extortion to assault, rape and murder. Murders of Burmese migrants are rarely investigated properly.
92. Human rights defenders working on behalf of migrants have also been targeted.For instance, in December 2003, employers had posters of the leaders of the Yaung Chi Oo Workers Association plastered around Mae Sot, Tak province. The police were reported to be looking for the men, who were forced into hiding. The men are exiled activists from Myanmar, who, if deported would certainly face lengthy prison terms and torture. On 14 December 2004, a volunteer interpreter working for a non-governmental group recording and lodging complaints by migrant workers against their employers was arrested and charged with working illegally.xiii The said person, a Mr A Salam (a.k.a. Ko Kabar) has legal status in Thailand, holding a Burmese displaced person card; in fact he was born in Thailand in 1986 after his parents had migrated in 1975 but has not been recognised as a citizen. However, holders of this card are not entitled to work, and so Mr Salam was charged as an alien without a working permit under articles 7 and 34 of Foreign Workers Act 2521 (1978). The matter is pending in the court. Again in this case, there were numerous procedural irregularities at time of arrest: the police, immigration and labour officials entered the premises without warrants; rifled through and removed large numbers of documents without permission; and failed to inform the accused that he was being arrested.
93. The Asian Human Rights Commission also pointed to discriminatory treatment of Burmese migrant workers in the aftermath of the devastating Indian Ocean tsunami relief effort.xiv At least 120,000 registered Burmese migrant workers were in areas affected by the tsunami; the total number of Burmese, accounting for estimates of illegal persons, may have been double that figure. Many of these persons lost all of their possessions, including work permit cards, in the disaster. While the Thai authorities were quick to assist Thai citizens and foreign tourists in the affected areas, the Burmese workers were not taken properly into consideration. Ministry of Labour officials announced that only those with work permits would be entitled to assistance, and it was reported to the AHRC that even these persons faced great difficulties in obtaining access to government assistance. Meanwhile, the authorities began rapidly rounding up Burmese persons and forcibly deporting them to their country of origin, after allegations of theft were levelled against them. These included legal workers who had lost their registration cards during the tsunami or whose employers were killed. The consequence was to force a large number of Burmese migrant workers into hiding, under miserable conditions. Another consequence was to hamper the enormous task of identifying all the recovered bodies of the dead, as the affected persons did not dare to approach the authorities to report and identify lost friends and relatives. After considerable domestic and international protest over the treatment of the affected Burmese migrants, international agencies intervened, including the International Organisation for Migration, and government authorities went some way to relaxing the discriminatory relief policies.
Article 19: Freedom of expression
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
94. Although the State party has in its report outlined its domestic constitutional and regulatory provisions allowing for the freedom of expression, the Asian Legal Resource Centre is concerned that this right as envisaged under article 19 of the Covenant is being increasingly impinged upon in Thailand. It recently raised a number of its concerns before the Commission on Human Rights.xv
95. Criminal defamation continues to be actively used to sanction persons in Thailand who may be acting or speaking in the public interest. Criminal defamation has in recent years been condemned globally as offensive to free expression. Many countries have recognised that criminal defamation is obsolete, and have removed it from the statute books. Unfortunately, in Thailand it remains as section 328 of the Penal Code, and carries a fine and up to two years’ imprisonment as punishment. This is an extremely backward provision entirely out of place in a modern and democratic society, and out of step with developments in international law. It is also contrary to both the letter and spirit of the 1997 Constitution, which guarantees unrestricted freedom of expression.
96. The criminal libel provision has received considerable attention with regards to the case of media-reform activist Ms Supinya Klangnarong and the Thai Post. Shin Corp sued Ms Supinya for criminal and civil defamation after she observed in an article published in the Thai Post on 16 July 2003 that Shin Corp’s profits have increased enormously since its founder Thaksin Shinawatra became Prime Minister. Although Ms Supinya’s allegations were based on sound research and motivated in the public interest, the criminal libel suit is currently pending before the courts. Meanwhile, a civil suit for 400 million Thai Baht (US,370,000) is pending the outcome of the criminal suit. Ms Supinya and the editors of the Thai Post newspaper now face possible jail terms and disproportionate financial sanctions under a backward and unnecessary law that runs contrary to international standards and the national constitution. If they are found guilty, it is likely to have a chilling effect on debate over pressing issues of national concern in the future.
97. The persistent concentration of broadcast media ownership in Thailand is cause for deep concern. The television and radio media in Thailand have been under a government and military monopoly since their introduction to the country. Although the new Constitution of Thailand introduced in 1997 set in place provisions for the democratisation of these media, these provisions have not been realised. Radio stations have been started by local communities, but the government has shut some and threatened others with closure on the grounds they are “illegal”. In fact it is the government itself that has failed to introduce a licensing regime in accordance with the 1997 Constitution. In 2004 the Department of Public Relations stated that it would establish a regulatory procedure over these broadcasters despite the fact that the proper legal provisions as stipulated by the Constitution have not been put in place. A new media monopoly is also emerging between the commercial and government sectors, as media concessions are issued to Shin Corp and other businesses close to senior politicians, thereby defeating the purpose of the constitutional reforms. Shin Corp has totally dominated all sectors of the commercial media in Thailand, as it owns 24 companies running telecommunications, television, radio, internet, satellite and other communications throughout the country, and even into neighbouring Cambodia, Laos and Myanmar.
98. Threats against journalists and independent media have increased. Since the 2003 ‘war on drugs’, many journalists in Thailand have narrowed their reporting in response to overt and covert government threats. Reporters who criticised the government campaign at that time were accused of being in the payment of drug dealers. Editors of newspapers and magazines have also expressed fears over the loss of millions of dollars of advertising fees from companies connected to government, particularly the Prime Minister. As a consequence, self-censorship is being practiced more widely. Broadcast media programme managers, producers and hosts are reported threatened against critical reporting of the government, by way of warnings in person and writing to be more ‘cooperative’. During late 2004, executives of radio stations were reportedly warned not to say anything negative about the escalating violence in the south. At least one radio host was taken off the air after the Supreme Command, which owns the frequency, told the radio media to exercise extreme caution in reporting security and political issues. Community radio stations have been shut down and are closely monitored. Numerous warnings were also issued, and raids conducted, in relation to distribution of video footage of the killings in Narathiwat in October 2004, which were announced as being a threat to national security, in accordance with section 116 of the Penal Code.
99. The independent broadcast media regulatory body has been wantonly undermined even before inception. As noted by the State party in its report, article 40 of the 1997 Constitution provides for an independent regulatory body to distribute broadcast frequencies and supervise radio and television broadcasting, with regards to utmost public benefit (paras 14-15). The Wavelength Regulator Act 2543 (2000) established article 40 under law and provided that 20 per cent of the media broadcast spectrum be reserved for people’s media. However, the government has dominated the selection process for the regulator, and selected candidates with whom it has connections. Ms Supinya Klangnarong was at the forefront of a legal battle to have the short-listed candidates disqualified for reasons of lack of transparency in the selection process, which was won in the Supreme Court in 2003. But recent media reports have indicated that the government has again stacked the list of prospective regulatory body members with bureaucrats and businesspeople over which it has influence. In the likelihood that the regulator consists of these persons, the result will be further consolidation of broadcast media in the hands of a few state agencies and a few powerful businessmen, which will not contribute to the freedom of expression in Thailand as envisaged by article 19.
i. Section 75 of the 1997 Constitution of Thailand corresponds: “The State shall ensure the compliance with the law, protect the rights and liberties of a person, provide efficient administration of justice and serve justice to the people expediently and equally and organise an efficient system of public administration and other State affairs to meet people’s demand.”
ii. AHRC Urgent Appeal UA-101-2004: THAILAND: Families demand real perpetrators of bus shooting be brought to justice, 13 August 2004.
iii. Contents of this section are drawn primarily from the special report entitled ‘Extrajudicial killings of alleged drug dealers in Thailand’, published by the ALRC in its bimonthly periodical article 2, vol. 2, no. 3, June 2003.
iv. AHRC Urgent Appeal UA-143-2004: THAILAND: At least 84 people killed in Southern Thailand, 26 October 2004; Urgent Update UP-65-2004: THAILAND: A list of the victims of the mass killing in Narathiwat province; Immediate international intervention needed, 28 October 2004.
v. AHRC Forwarded Appeal FA-06-2004: THAILAND: A human rights lawyer Mr. Somchai Neelaphaijit missing, 17 March 2004; and Urgent Updates, UP-14-2004: THAILAND: Mr. Somchai Neelaphaijit is still missing and the police may be involved in his disappearance, 25 March 2004; UP-26-2004: THAILAND: 5 suspects in the alleged abduction of missing human rights lawyer Mr. Somchai Neelaphaijit bailed out, 11 June 2004; UP-58-2004: THAILAND: Inaction by Thai authorities in investigation the disappearance of Mr. Somchai Neelaphaijit, 14 October, 2004; UP-61-2004: THAILAND: Justice Minister responds over case of disappeared lawyer, 19 October 2004; UP-20-2005: THAILAND: Human rights lawyer still missing after nearly one year; Action needed today to have case transferred, 24 February 2005; UP-24-2005: THAILAND: Thai minister refuses to act on missing human rights lawyer case, 9 March 2005.
vi. AHRC Urgent Appeal UA-94-2004: THAILAND: Severe torture victims still in custody while police torturers remain in posts, 26 July 2004.
vii. AHRC Urgent Appeal UA-153-2004: THAILAND: Two cases of extremely serious torture and cruel and inhuman treatment by Thai police officers, 9 November 2004; Urgent Update UP-78-2004: THAILAND: Torture cases transferred to special investigators, but police still free, 2 December 2004.
viii. AHRC Urgent Appeal UA-170-2004: THAILAND: Another case of torture to obtain confession at Ayutthaya Police Station, 10 December 2004.
ix. AHRC Urgent Update UP-04-2005: THAILAND: Repeated torture at Phra Nakhon Si Ayutthaya Police Station, 12 January 2005; and, UP-10-2005: THAILAND: Updated information on the torture of the four men by the Phra Nakhon Si Ayutthaya police, 3 February 2005.
x. AHRC Urgent Update UP-75-2004: THAILAND: Demand immediate criminal action against police torturers, 24 November 2004.
xi. AHRC Urgent Appeal UA-40-2005: THAILAND: A man receives a ten-year sentence for coming to the assistance of a drunk disabled person, 9 March 2005.
xii. AHRC Hunger Alert HA-02-2004: THAILAND: Hunger caused by mass arrest of villagers, 15 September 2004.
xiii. AHRC Urgent Appeal UA-178-2004: THAILAND: Migrant workers’ rights activist facing legal prosecution and death threats, 21 December 2004.
xiv. AHRC Urgent Appeal UA-10-2005: THAILAND: Discriminatory relief operations and forced deportation against Burmese migrant workers affected by the tsunami, 19 January 2005; AHRC Urgent Update UP-13-2005: THAILAND: Updates on the tsunami-affected Burmese migrant workers, 16 February 2005.
xv. ALRC Written statement to the Commission on Human Rights, ‘Criminal defamation and growing restrictions to freedom of expression in Thailand’, E/CN.4/2005/NGO/112.