THAILAND: Key issue for police reform is command responsibility

The Asian Human Rights Commission (AHRC) is writing to you in response to reports in the Bangkok daily newspapers that the United Nations Office on Drugs and Crime (UNODC) has offered to assist the government of Thailand in reforming its police force.

As you will be aware, police reform has been a subject of debate in Thailand since at least the 1970s. For its part, the AHRC has been working in detail on cases of alleged negligence of duty, robbery, extortion, intimidation, torture, abduction, rape, attempted rape, forced disappearance and extrajudicial killing committed by police officers in Thailand since 2004, and on similar issues from throughout Asia over the last two decades. From this work we have drawn the following conclusions about what is most needed for genuine police reform in Thailand.

1. Command responsibility: The notion of command responsibility, although an integral part of policing anywhere in the world, is absent from policing in Thailand. Superior officers are not held liable for the acts or omissions of their subordinates. On the contrary, they invariably act to defend their men against accusations of alleged criminal acts: a senior forensic scientist was charged with criminal libel by a police station commander after implying that in her professional opinion his officers may have killed someone whom they said committed suicide; one of five police officers accused of abducting and disappearing a human rights lawyer was reappointed to his position and even promoted while the criminal trial against him was ongoing; a former head of the immigration police in a television interview defended the use of torture by his subordinates as the only way to deal with “bad people”. Without command responsibility being enforced within the police hierarchy, superior officers are untouched by allegations that their subordinates have tortured suspects, falsified evidence, doctored records, and otherwise ignored procedure. Without command responsibility, there is no way to combat the intimate relationships between the police and organised crime in Thailand, the line between which has been described as being so fine as to be non-existent. Without command responsibility it will be impossible to introduce the notion of accountability into the police force, and without accountability there can be no reform. The key issue for all police reform must therefore be command responsibility.

2. Complaints mechanism: There is as yet no way for any person in Thailand to make an effective complaint against a police officer for alleged wrongdoing. For this reason, to the knowledge of the AHRC, no police officer in Thailand has in recent years been prosecuted over an alleged human rights violation with the exception of the five accused in the case of abducted human rights lawyer, Somchai Neelaphaijit. Given the size of the police force in Thailand and the scale of alleged abuse, this is truly remarkable. In 2005 the UN Human Rights Committee, in consideration of Thailand’s compliance with the International Covenant on Civil and Political Rights, noted in paragraph 10 of its concluding observations (CCPR/CO/84/THA) that

“The Committee is concerned at the persistent allegations of serious human rights violations, including widespread instances of extrajudicial killings and ill-treatment by the police and members of armed forces, illustrated by incidents such as the Tak Bai incident in October 2004, the Krue Se mosque incident on 28 April 2004 and the extraordinarily large number of killings during the ‘war on drugs’ which began in February 2003. Human rights defenders, community leaders, demonstrators and other members of civil society continue to be targets of such actions, and any investigations have generally failed to lead to prosecutions and sentences commensurate with the gravity of the crimes committed, creating a culture of impunity. The Committee further notes with concern that this situation reflects a lack of effective remedies available to victims of human rights violations, which is incompatible with article 2, paragraph 3, of the Covenant (arts. 2, 6, 7).

“The State party [Thailand] should conduct full and impartial investigations into these and such other events and should, depending on the findings of the investigations, institute proceedings against the perpetrators. The State party should also ensure that victims and their families, including the relatives of missing and disappeared persons, receive adequate redress. Furthermore, it should continue its efforts to train police officers, members of the military and prison officers to scrupulously respect applicable international standards. The State party should actively pursue the idea of establishing an independent civilian body to investigate complaints filed against law enforcement officials.”

In paragraph 15 it continued that

“The Committee is concerned about the persistent allegations of excessive use of force by law enforcement officials, as well as ill-treatment at the time of arrest and during police custody. The Committee is also concerned about reports of the widespread use of torture and cruel, inhuman or degrading treatment of detainees by law enforcement officials, including in the so-called ‘safe houses’. It is also concerned at the impunity flowing from the fact that only a few of the investigations into cases of ill-treatment have resulted in prosecutions, and fewer, in convictions, and that adequate compensation to victims has not been provided (arts. 2, 7, 9).

“The State party should guarantee in practice unimpeded access to legal counsel and doctors immediately after arrest and during detention. The arrested person should have an opportunity immediately to inform the family about the arrest and place of detention. Provision should be made for a medical examination at the beginning and end of the detention period. Provision should also be made for prompt and effective remedies to allow detainees to challenge the legality of their detention. Anyone arrested or detained on a criminal charge must be brought promptly before a judge. The State party should ensure that all alleged cases of torture, ill-treatment, disproportionate use of force by police and death in custody are fully and promptly investigated, that those found responsible are brought to justice, and that compensation is provided to the victims or their families.”

There is no evidence that the government of Thailand has ever given any serious consideration to any of the recommendations of this United Nations treaty body, either by way of establishment of an agency to receive and investigate and prosecute complaints against the police, or other procedural and institutional changes that would reduce the incidence of police abuse. In the absence of such a monitoring agency, other efforts towards police reform will remain ineffectual.

3. Compliance with international law: Institutional changes must be accompanied by legal reforms to lend them support. The government of Thailand has indicated for years that it would ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and introduce it into domestic law but has so far failed to do so. Although section 31 of the abrogated 1997 Constitution of Thailand held torture to be an illegal act, it remained unenforceable for want of an enabling law and measures to permit complaints. A law to prohibit the commission of forced disappearances in accordance with the new international convention is also necessary. Existing domestic laws too require reform–such as section 143 of the Criminal Procedure Code, which allows only for the director general of the Public Prosecution Department to instigate legal action against a state officer accused of killing someone in the course of his official duties. Other laws that permit impunity, especially the Emergency Decree over the southern provinces, must be lifted without delay. Although the UN Special Rapporteur on extrajudicial, summary or arbitrary executions has described the decree as making it possible “for soldiers and police officers get away with murder”, it has been in force since July 2005 and has not been removed by the military government that took power on September 19, contrary to initial indications. The Special Rapporteur also has not been granted permission to visit Thailand despite a standing request since 2004.

4. Institutional changes: Despite the establishment of non-police investigative agencies in recent years–thanks to the reforms brought in via the now abrogated 1997 Constitution–the police maintain a virtual monopoly over criminal investigations in Thailand. The public prosecutor is entirely dependent upon the police to conduct whatever inquiries are needed, upon which to commence a criminal case. The prosecutor’s office therefore routinely excuses itself from responsibility for non-prosecution of serious criminal cases on the grounds that it has not received any files from the police upon which to lay charges. This monopoly is an enormous obstacle to criminal justice in Thailand. It is compounded by sweeping police powers across a range of other areas: only one official forensic science unit exists outside of the police force, under the justice ministry, and it has been subjected to constant attacks by the police since its inception; proposal by the unit’s acting director general to establish a missing persons’ centre has been repeatedly thwarted by the police. Witness and victim protection in Thailand remains largely a matter for the police, despite the establishment of a Witness Protection Office under the justice ministry: hardly a satisfactory arrangement when witnesses or victims are themselves seeking protection from the police.

The aim of any police reform in Thailand must be much more than to break the links between the police and politicians. It must be informed by serious understanding of the deep problems in policing there that have developed over the last century–not merely the last few years–and aim to break the links between the police, organised crime and the military that have been forged and multiplied throughout this period. The success or failure of your contribution will be measured in these terms.

Yours sincerely

Basil Fernando
Executive Director
Asian Human Rights Commission, Hong Kong

Document Type : Open Letter
Document ID : AHRC-OL-006-2007
Countries : Thailand,