Stop Torture, Enforce the Laws and Abide by Rule of Law

Submitted by

Cross Cultural Foundation (CrCF)
Muslim Attorney Center (MAC)
Working Group on Justice for Peace (WGJP)
Human Rights and Development Foundation (HRDF)
Young Muslim Association of Thailand (YMAT)
Campaign Committee for Human Rights (CHR)
Union for Civil Liberty (UCL)

Released on 18 February 2008

Issues in the Justice Process and Attempts to Solve Unrest in the Southern Border Provinces

Stop Torture, Enforce the Laws and Abide by Rule of Law

Submitted by

Cross Cultural Foundation (CrCF)
Muslim Attorney Center (MAC)
Working Group on Justice for Peace (WGJP)
Human Rights and Development Foundation (HRDF)
Young Muslim Association of Thailand (YMAT)
Campaign Committee for Human Rights (CHR)
Union for Civil Liberty (UCL)

Released on 18 February 2008

1. Rationale and issues

1.1  Personnel in the justice system including police, enquiry officer, public prosecutor, lawyer, judge and competent officers under Martial Law shall perform their duties in accordance with the rule of law and respect human rights as guaranteed in Section 4 of the 2007 Constitution of Thailand.

1.2  It is commonly agreed and has also been suggested by the National Reconciliation Commission (NRC) that the unrest in the Deep South stems from discontent of the local population who have been accorded unfair treatment. Therefore it is believed that facilitating access to justice can help in reducing violence and ushering peace in the South. This principle has also been affirmed by the United Nations which has reminded its member countries to ensure that principles of human rights and rule of law are upheld in their efforts to combat terrorism. Thailand has ratified the six core international human rights treaties and is under an obligation to respect, protect and fulfill the rights guaranteed in the treaties.

1.3  It is a common belief amongst officers responsible for law enforcement and public security, that an action, even though it violates human rights or the rule of law, gains legitimacy if such action is taken in the interests of protecting national security. Thus torture of suspects, disappearance of persons and extra judicial killings continue with impunity. At the same time unrest in the Deep South has exacerbated. Increasing numbers of youth are turning against the State. This shows that counter terrorism measures that do not respect human rights and principles of rule of law are not adequate to bring peace to the three provinces.

1.4  It has been argued that special laws such as the Martial Law, Emergency Decree, Internal Security Act 2008, giving special powers to the authorities are necessary to deal with special circumstances in the Southern Border Provinces. Even if special laws are deemed necessary, it does not mean that the State has unlimited powers to override human rights of people. Special laws have to respect the basic rights and liberties of the people.

1.5  It could be said that people who have been victims of violence have lost their faith in the law enforcement agencies. However the people still have faith that the judiciary will be able to exercise checks and balances on the operation of the security forces and ensure that rule of law is respected and maintained.

1.6  The special laws such as the Internal Security Act 2008 give special powers to protect ‘national security’ as understood in its traditional sense. At the same time people are not aware about their rights or do not have the courage to enforce their rights. This feeling of helplessness may spark a sense of oppression and push them to cooperate with people who are responsible for the violence in the Deep South. In such a case lawyers have an important role in representing the people whose rights have been violated and helping them in accessing justice and enforcing their rights.

2. Arrest/detention under Martial Law and 2005 Emergency Decree

2.1  Monitoring by human rights organizations have shown that since July 2005 ‘surrounding and searching’ has become a widely used practice for rounding up a large number of suspects, sometimes 20-30 persons at one time. Uniformed and plain clothed officers take part in these operations authorized under the Martial Law. The persons arrested under these operations have been held in custody, usually for a period of 7 days allowed under the Martial Law, at various detention centers such as the Wat Changhai army camp, Banglan Dam camp and Yeelapan camp. Some have been detained for periods longer than that authorized by Martial Law at Pileng camp in Narathiwat. Human rights organizations have received complaints of torture by the special task force units at various army camps. The detainees have complained that they are tortured and pressurized to confess to the charges imposed on them. Often relatives of detainees are not informed about the place of detention and are prevented from meeting the detainees during the first seven days of detention or sometime for longer periods. The authorities often use the provisions of the Emergency Decree on Government Administration in States of Emergency as described in the Internal Security Operation Command Region 4’s Regulation concerning the guidelines of practice for officers, Item 3.9.3, Section 11 of the Decree and deny the right to visit during the first three days.

2.2  The persons held in custody by virtue of Martial Law cannot be treated as ‘alleged offenders’ and the term ‘those summoned by Emergency Decree’ is used to describe their status. Both the detainees and their relatives often are not given information about the place of detention and most often when the relatives try to obtain this information from other concerned authorities, some officers are given information that is confusing and misleading.

2.3  There are no specific provisions in the Martial Law that denies the right to visit persons held in custody during the first three days. However as per the Internal Security Operation Command (ISOC) Region 4’s Regulation concerning the guidelines of practice for officers, enacted by virtue of Item 3.9.3, Section 11 of the Emergency Decree 3.9.3, both relatives and lawyers may not be permitted to see/visit the persons held in custody during the entire length of 30 days of detention authorized under the Emergency Decree.
2.4  In many cases, requests for visit have been denied by either army or police officers. Visits have been allowed after three days of detention mostly in cases where the detainees have no physical evidence of having suffered any injury. Many relatives do not have access to much information and are not sure if the detainees have been tortured or not. Nevertheless, many allegations have been made about torture during the interrogation process, particularly during the first three days of detention. Complaints have also been received that persons have disappeared during detention.

2.5  Women and children under 18 years are not separated from the rest of the detainees. Complaints have been received that children have been beaten during detention. Reportedly that children are detained in the same cells as adults such as in Reconciliation Promotion Center, Ingkhayudhborihan Army Camp, Pattani Province and Peace Keeping Center and the Forward National Police Office Operations Center, Yala. Guidelines with respect to treatment of women and children do not comply with the measures under the Criminal Procedure Code to protect rights and liberties.

2.6  In Ingkhayudhborihan Army Camp, women detainees are provided with separate detention, but the facility is small and overcrowded. In some instances, mothers are detained together with small children in the Ingkhayudhborihan Army Camp. As for the Peace Keeping Center, the Forward National Police Office Operations Center, Yala, women detainees are provided with proper facilities.

2.7  The officers responsible for detention and interrogation do not identify themselves. Some complaints that they were not informed about the grounds of arrest, the place of detention and deny permission for visits by relatives. All these are in violation of the rule of law and international human rights treaties, particularly the International Covenant on Civil and Political Rights (ICCPR).

2.8  The detention and treatment in custody of those less than 18 years of age violate the rights guaranteed in the Convention on the Rights of the Child. The practice also violates the rights and liberties guaranteed under the n of child rights as per the Declaration on Child Rights and are not in compliance with the measures under the Criminal Procedure Code to protect rights and liberties.

Recommendation
•  The government through the concerned agencies must carry out investigation to verify if arrests made by officers are lawful or not. Efforts should be made to help and enable relatives of those held in custody to access the process of justice where needed. When a request is made as per Section 90 of the Criminal Procedure Code (Habeas Corpus) and Section 32 of the Constitution, the judiciary which receives the complaints must act promptly and carry out investigation to ensure justice and give effective remedies.

3. Issuance of warrant of arrest and extension of detention under the 2005 Emergency Decree on Government Administration in States of Emergency

3.1  The Martial Law and the Emergency Decree provides for ‘Preventive Detention’, under which persons can be summoned and detained for enquiry/investigation or when the authorities suspect that a person can be involved in a crime and want to prevent them from committing it. The Martial Law allows a maximum period of detention of 7 days and another 30 day detention is made possible by the Emergency Decree during which the officer has to seek court’s permission to extend the detention after every seven days. In practice, at the time of seeking extension of the period of detention, authorities are not required to produce the detainee before the Court (according to ISOC Region 4’s Regulation concerning the guidelines of practice for officers, second clause of 3.7 and Section 11 of the Emergency Decree) and thus the Court has no opportunity to satisfy itself about the security and safety of the detainee. The relatives or other individuals are not able to present petition before the Court challenging the extension of detention as they may not be aware of their rights or because they are afraid of challenging the authority of the officers. In most cases, the Court grants extension after asking a few routine questions to the competent officers.

3.2  The practice whereby the Court grants extension of detention period without hearing from the detainee makes it impossible for the detainee to challenge or oppose the detention or inform the Court about incidents of torture. This practice of the Court does not meet the standards and measures for protection of rights and liberties provided in the Criminal Procedure Code. As per the provisions of the Criminal Procedure Code, an accused person should be brought in person before the Court or such person should be produced before the Court through a VDO conference at the time of granting extension of detention. Such measures help to ensure that detention is not unlawful and there is no torture of detainees.

3.3  Human rights organizations have received many complaints that detainees are transferred to different detention centers for the purpose of interrogation. Every time a detainee is transferred, the authorities start counting the days of detention afresh as a result the actual period of detention is longer than the maximum period allowed under law. For example, a person is detained at the Ingkhayudhborihan Army Camp for over ten days, and then the is transferred to the Forward National Police Office Operations Center, where the officer starts counting the period of detention as from day one, instead of day eleven. Most detainees do not have the courage to question this practice because they are afraid that if they make a complaint they will not be released even after the maximum period of 30 days. Further the ‘no visit during the first three days’ principle is reapplied every time a transfer is made as a result of which detainees are not able to meet with their relatives even though they have been in custody for more than three days.

3.4  According to the ISOC Region 4’s directive no. 11/2550 ‘Detention facility under the 2005 Emergency Decree on Government Administration in States of Emergency’, dated 24 January 2007 and signed by Commander of Army Area Region 4, only two detention facilities are allowed - the Ingkhayudhborihan Army Camp and Forward National Police Office Operations Center, Yala. But in practice it has been found that persons are being detained in various venues such as special taskforce units, smaller army units including Pileng army camp. Complaints of torture have been received by the Muslim Attorney Center (MAC) from detainees held at these centers.

3.5  Many cases have been documented where an individual is arrested and released and arrested again when any case of violence happens in that person’s community. Thus after release of that person, if any incident of violence happens in that person’s community, the person is arrested again even though no sufficient evidence had been found to prosecute the person when he was arrested for the first time. Reports of numerous cases show a pattern that can suggest that some persons are being victimized and suspected of committing crimes related to insurgency even though there is no evidence linking the person to such acts of violence.

3.6  Regarding the issuance of emergency warrants as per the Emergency Decree, it should be noted if for how long the “emergency period/time” should be. There are cases where the target of the warrants are not aware that they are being targeted, and even some of them have gone to report themselves, their names have not been deleted from the warrants. Some people learn that they are targets of the warrants only when they apply for visas to travel abroad, i.e., during the pilgrimage trip.

3.7  Only three provinces, Narathiwat, Pattani and Yala, have been declared to be under the state of emergency. However it has been noted that persons have been arrested from areas outside the three provinces under the Emergency Decree. This has caused a lot of confusion. Warrants of arrests under the Emergency Decree are issued by the Courts, but unlike warrants issued under the Penal Code, do not mention any jurisdiction limits. It is proposed that warrants issued under the Emergency Decree should only be used in the area declared to be under the Emergency Decree.

3.8  Section 12 of the Emergency Decree requires officers to produce a report about the arrest and detention and submit it to the Court authorized to issue emergency warrants and grant extension of the detention. A copy of such report is to be made available to the relatives of the person held in custody so that they have access to information and are aware of the details of the arrest and the place of detention. But in practice, it is difficult to get a copy of the report and no relatives have been able to review the report.

3.9  Relatives have limited capacity to ask the Court to review whether the detention is lawful or not. There are very few lawyers who available to give legal aid to the relatives. Though several cases have been brought to the notice of the National Human Rights Commission, but due to their limited manpower and the huge number of cases received by them, the Commission is not able to respond appropriately. In many cases, the Commission does not receive cooperation from the state officers during their investigation.

Recommendation
 • To prevent torture and physical abuse during the first three days of detention under the Emergency Decree, the Court should require the presence of the detainee at the time of considering requests for extension of detention
 • The emergency warrant issued under the Emergency Decree should have a time limit (prescription of the warrant) otherwise it can become a tool to curb people’s rights and liberties.

4. Overall recommendation for prevention of torture and physical abuse

4.1  Meetings should be held among the judiciary, legal affairs of the army, and police to come to a common understanding regarding the exercise of power under the Martial Law and the Emergency Decree including jurisdiction of the Decree, detention period permitted by the Decree, repeated detention of an individual for 30 days (repeated arrest/issuance of warrant), transfer of detainee from the Ingkhayudhborihan Army Camp to the Forward National Police Office Operations Center, rights to visit detainees and the right to be informed about the location of detention.

4.2  An independent medical unit should be set up to carry our physical examination of the detainees who might have been subjected to torture and physical abuse and other detainees held under the two special laws.

5. Detention provided for by the Criminal Procedure Code

5.1  After the maximum period of 30 days of detention (37 days if the seven day detention under Martial Law is included), if there is still no sufficient evidence for prosecution, the detainees must be released. In practice, there have been cases where the police officers have presented ‘suspects’ detained for the maximum period under the Special Laws before the Courts and asked and obtained permission for continuation of their detention under the Criminal Procedure Code. In practice such detainees are not held at the police station as required under the Criminal Procedure Code, but at the Peace Keeping Center, the Forward National Police Office Operations Center, Yala and the Khao Tanyong Police Station, Narathiwat. The persons held in custody are not informed about their rights, their relatives are not made aware of their rights to visit and lawyers are not allowed to be present during the interrogation.

5.2  In September 2007, a teacher at Ban Pathung, Tambon Bangkao, Saiburi district, Pattani was shot dead, and the court granted warrants of arrest as per the Criminal Procedure Code for 38 villagers in the village. The nature of information that the Court considers before granting warrants of arrest is a matter of concern. Mass arrests of people only on the basis of suspicion may lead to people loosing faith in the justice system.
Recommendation:
 • Persons arrested under the Criminal Procedure Code should be held in custody in prisons since prisons have better facilities and provide more security to the detainees.
 • To restore confidence in the justice process, the Courts should be more proactive in protecting the rights of persons who are held under ‘preventive detention’ under Martial Law and Emergency Decree

6. Post mortem inquest as per Section 150, Criminal Procedure Code
6.1  Post Mortem inquests of many cases have not reached any conclusion due to the high number of witnesses and presentation of irrelevant witnesses before the Court. The post mortem inquest of the Takbai massacre in early October 2004 has not been completed yet, even though the incident took place more than three years ago.

6.2  In cases where the Court has made a decision on post mortem inquest, no further action has been taken. For example, the Court delivered a verdict on the Kruese Mosque in 2006, and concluded that the death of 28 persons had occurred because of the action of 3 state officers. However no proceeding has been taken since then to enquire whether such officers had used force in excess of that which was reasonable under the circumstances.

6.3  In 2007 at least two deaths in custody have occurred, but the officers have failed to bring the cases to the court. These cases include the cases of Mr. Ashari Sama-ae, Mr. Yakariya Paomani who were found dead during army detention.

7. Issues of concern
The last paragraph of Section 32 of the 2007 Constitution provides for remedies to victims. It states that
“In the case of the act affecting the right and liberty under paragraph one, an affected person, a public prosecutor, or another person acting on behalf of the affected person has the right to seek court action to stop or withdrawal such an action including to determine proper measure or remedy for the accrued damage.

What are the extents of ‘proper measure or remedy for the accrued damage’? On 7 August 2007, the cabinet passed a resolution for Thailand to sign the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) or “Convention against Torture”, and on 2 October, Thailand. On 2 October 2007, Thailand acceded to the UN’s Convention against Torture. The following measures and remedy for victims of torture provided under CAT should be made part of the domestic protection mechanism
 • Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. All regulations must be made in compliance with international obligations against torture.
 • If a torture occurs, efforts shall be made to ensure that the victim has the rights to complain, and to have his case promptly and impartially examined in order that he will not become a victim again.
 • Upon receiving complaints regarding torture, each member state must carry out full-fledged examination immediately, independently and efficiently.
 • Once the torture has been ascertained by investigation, member state must bring perpetrators to justice by means of law and to ensure that the victims receive proper remedy.
 • The Court and justice process agencies shall review the operations of officers and ensure compliance with international obligations on human rights. At the minimum, human rights principles explicated in six relevant international declarations should be applied for interpretation of the constitution such as on human dignity, rule of law, and discrimination prevention, etc., in order to protect rights and liberties of people, human rights and to provide for more active justice.

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