According to an article in the January 20 edition of the Bangkok Post, the new director of the Department of Special Investigation (DSI) has committed himself to cleaning up the department, removing investigators with political connections and restoring public faith in its operations throughout Thailand. Sunai Manomai-udom has said that he aims to make the DSI truly independent, and will increase the number of non-police working in the department: at present almost half of its personnel are police.
In November, the Asian Human Rights Commission welcomed the news that Sunai, a former appeals court judge, would replace the DSI’s then-director, Pol. Gen. Sombat Amornvivat. The DSI, which was established in 2002 under the justice ministry as an alternative agency to the police, should never have been headed by a police officer. Its mandate was seriously compromised in its first few years of operation by its serving as little more than a de facto police agency, and it went from being a source of hope to a source of immense disappointment and frustration for human rights defenders, victims and their families.
Sunai’s proposals to restructure the agency and root out bad investigators are cause for further cautious welcome. However, the work of the department has been so thoroughly perverted that an intense effort will be needed to address all aspects of its operations and staffing for it to become meaningful. This will not be easy at a time that prospects for the rule of law in Thailand are at their lowest point in over a decade, with a military junta in control of all parts of government. Among the questions that need to be asked of the new DSI director are the following:
Can the DSI really be independent?
The DSI was from the start established under the justice ministry, not as an autonomous agency. Its operations are overseen by a board that includes the prime minister; justice minister; permanent secretaries from the ministries of justice, finance, interior and commerce; the attorney general; judge advocate general, and the police chief. The DSI is inevitably subject to outside pressures. It can be stopped from–or forced into–taking up a case by the prime minister or other senior figures. Beyond this, the September 19 military regime has announced that the DSI will somehow be made answerable to the revamped Internal Security Operations Command, itself under orders from the army commander and coup leader, General Sonthi Boonyaratglin. This makes a mockery of any assertions by the DSI head that his agency can be run independently.
What are the criteria for accepting cases?
Criminal cases that may be taken up by the DSI are identified as any “complex” cases requiring “special collection of evidence”; those that may have “a serious effect upon public order and morality, national security [or] international relations”; organised crime cases; those in which an “influential person” is accused of an offence; or any other case that two-thirds of the board votes should be taken up by the department. These parameters are so broad as to make virtually any serious criminal case a candidate for investigation by the DSI. In its years of operation to date, the department has been informed of numerous grave human rights cases in which the police or influential persons have been the accused that it has not taken up. Alleged torture, forced disappearance, illegal detention and extrajudicial killing by police officers and soldiers have somehow not been deemed “special” enough to warrant the department’s attention. Only those human rights cases that have been the subject of constant and heavy public advocacy and media attention–such as the killing of environmentalists Charoen Wat-aksorn and Phra Supoj Suwajo, and abduction of human rights lawyer Somchai Neelaphaijit by the police–have been accepted. So what in fact are the precise criteria for determining whether a case, once brought to the attention of the DSI, is determined to be special? Without a set of well-defined, objective and rigorous standards upon which to accept or reject cases, the DSI will be subject to biased and politically-driven decisions.
Will victims and witnesses be protected?
In June 2006 a detailed report established that one of the main failings of Thailand on human rights has been weak witness protection (“Protecting witnesses or perverting justice in Thailand?” article 2, vol. 5, no. 3, http://www.article2.org/pdf/v05n03.pdf). Witness protection in Thailand, to the extent that it exists at all, remains almost entirely in the hands of the police, despite a new law and office set up under the justice ministry to coordinate protection measures. The DSI has declined to assign officers to protect its own witnesses or victims for more than a short time, if at all, making them easy targets for perpetrators. Ekkawat Srimanta’s brutal torture at the hands of police officers in 2004 made national news when he was rushed to hospital by friends with burn marks all over his groin and testicles, forcing the justice minister to announce that the DSI would take the case. Yet in November 2005 Ekkawat withdrew his complaint and dropped out of contact with his lawyer, evidently after being coerced and offered money by the perpetrators or others acting on their behalf. If the DSI is to succeed in handling human rights cases of this sort, it must commit its personnel and means towards the protection of victims like Ekkawat; the family members of victims, like Angkhana Neelaphaijit, wife of disappeared lawyer Somchai; and witnesses in special cases, such as those eyewitnesses in Somchai’s case who reversed testimonies in court out of fear of the defendants. It must also work closely with the Witness Protection Office under the justice ministry and push for an expansion of mandate, staff and funds for that office, rather than any new initiative under police control.
Are senior DSI officials subject to the same criminal laws that they apply to others?
A further important reason that the defence of human rights in Thailand has failed to make headway against the entrenched power and influence of the police and military there is the absence of command responsibility. Despite a complex hierarchy of command on paper, in reality blame rarely extends–where there is any at all–beyond state officers directly involved in an offence. The higher up an officer is the less-likely that he will ever face anything more than temporary suspension or transfer to an inactive post. The case of Pol. Gen. Sombat is indicative: although he was dismissed for his failure to make headway over many serious cases of public concern, he has been “punished” with a job in the senior bureaucracy of the justice ministry, while his immediate subordinates continue in their posts at the DSI. Their alleged obstructions of justice have never been investigated. Until such a time as action is extended beyond mere administrative sanctions and into criminal inquiries of state officers and superiors accused of illegal activities impunity will remain the rule rather than the exception in Thailand and the personnel of the DSI, together with all other departments and offices, its beneficiaries.
There is plenty of room for improvement at the Department of Special Investigation, and under the management of its new director general there is reason to believe that some will be seen. However, the institutional and administrative difficulties are considerable, and true independence, effective protection of witnesses and command responsibility are all areas in which intense work will need to be done before the department can earn the public’s trust.
It should also not be forgotten that the DSI does not have to be the only game in town. The existence of the department should not preclude the setting up of an independent civilian body to investigate complaints filed against law-enforcement officials, as recommended to the government by the UN Human Rights Committee in mid-2005 in acknowledgment of “persistent allegations of serious human rights violations, including widespread instances of extrajudicial killings and ill-treatment by the police and members of armed forces” in Thailand. If that recommendation, among others, would obtain some attention and action from the concerned authorities then it could go a lot further towards protecting human rights in Thailand than years of time and effort spent on wresting the DSI from the clutches of police, politicians, and increasingly, military officers.
