THAILAND: Steps to acknowledging forced disappearances

On Monday, June 5, Angkhana Neelaphaijit together with a number of Thailand-based groups submitted in person an open letter to the recently-formed Independent Commission on Justice and Civil Liberties for the Southern Border Provinces. The commission is expected to take a lead role in addressing the continued bloodshed in the south, following in the footsteps of the National Reconciliation Commission, which itself submitted its report to the government on Monday. Angkhana, the wife of abducted lawyer Somchai Neelaphaijit who has since become a leading human rights advocate in Thailand, said in the letter that the key issue for the new commission to address is forced disappearances. She said that the number of disappearances in the south on record is far less than the actual number, as relatives of abducted persons are afraid to complain, and when they do they have no hope for anything other than some compensation. She said that the first thing for the commission to do is simply to acknowledge the scale of the problem. 

The Asian Human Rights Commission strongly endorses this open letter. Simple acknowledgment of disappearances is enormously important. When police or soldiers abduct and kill someone and then dispose of the body they are carrying out what is both the most heinous and most secretive of crimes. Forced disappearances necessitate methodical and extreme violence. They combine raw brutality with detailed organisation: the use of informants; making of lists; allocating of personnel, vehicles, weapons and premises; falsifying of records; disposing of remains, and making or modifying of laws to protect the perpetrators. They are accompanied by other forms of gross human rights abuse, including torture, incommunicado detention, and arbitrary extrajudicial killing. The expression “forced disappearance” is anyhow just a euphemism for kidnapping and detaining with intent to kill. 

All of this can go on only under conditions of very deep denial. It can only go on where institutions to protect the rule of law are perverted, destroyed or ignored. This denial is not limited to the practice of forced disappearances alone: over time it becomes the standard reaction to any suggestion of wrongdoing. Eventually, it impedes the possibility of any solution to any problem. Above all, it denies the possibility of redress for the victims, as state agencies are organised not to afford remedies but rather to conspire against the public and keep secrets. 

The scale of denial over what has been happening in the south of Thailand was evident at the end of May when two prominent and involved persons called for special investigations of hundreds of unidentified bodies there. Dr Porntip Rojanansunan, acting director of the Central Institute of Forensic Science, has been leading preliminary investigations into some sites, and has said that she would exhume and examine hundreds of bodies in cooperation with international experts. She has said that most of the bodies may be those of migrant workers from neighbouring countries, not local people. Meanwhile, Caretaker Senator Kraisak Choonhavan said in a May 27 television interview that the government had completely failed to do anything about hundreds of unidentified graves in the south. The reaction of government officials, including ministers and provincial governors, was to dismiss the reports out of hand. The interior minister was reported as saying that he was not taking the allegations seriously. The justice minister said that it was an “old story” and nothing to get excited about.

In March 2005 Porntip obtained a commitment from then-justice minister Suwat Liptapanlop that she would be able to take the lead in establishing a centre to identify and trace remains of missing persons. But by June the then-interior minister Pol. Gen. Chidchai Wanasatidya said that any such centre would be run by the police. Chidchai was subsequently made justice minister, effectively bringing to an end any immediate prospects for the proposed centre. Weary of delays, Porntip began her investigations in the south nonetheless, reporting her findings to various government agencies, without response. Chidchai has since reportedly said that the investigations will continue under another ministry official, again attempting to displace Porntip from her leadership role. Meanwhile, Chidchai is also reported to have said that international experts would not be needed to identify remains, as Thailand has more than enough. In fact the country has only a handful of forensic specialists with the expertise and willingness to conduct exhumations of this sort. Presumably his lack of enthusiasm about an influx of such experts followed from his earlier remarks that it was just an old story of a few hundred dead people, and nothing to get excited about. 

All of this speaks to the persistence and prevalence of denial among government officials about the alleged widespread abductions and killings by government officers in the south. Attempts are made to deny that bodies exist, then that they exist in large numbers, then that they are the bodies of local people, then that they may have anything to do with the security forces and enduring conflict and allegations of abductions there. The emphasis on numbers of bodies, and whose bodies, misses the point. The fact that all of this is going speaks to a situation in which the rule of law has all but collapsed. 

Where institutions for the rule of law are functioning, there would be no uproar about whether or not there are bodies, how many there are, who they were or how they died before there was even a proper investigation. Instead, ordinary criminal procedure would be followed to open graves, identify remains, submit findings to concerned agencies and report to the courts, upon which there would be decisions about whether or not to proceed with inquiries, and if so, how. But where emergency regulations and martial law have superceded ordinary criminal law and where the police and military have been free to arrange and commit atrocities with impunity, it is denial–not law–that rules. ?lt;br />
The consequences of this denial are felt daily, in myriad ways, by victims and their relatives. Among them, the families of the disappeared struggle not only with psychological and emotional burdens but also with unsympathetic state agencies and day-to-day practical problems that arise from having a son, father, uncle or brother abducted. As there is no simple and non-threatening established procedure to lodge a complaint over a disappeared person, most victims are in the eyes of the ordinary administration still alive and accessible. Inevitably, this creates practical difficulties for the families. One disappeared man was sent a conscription order by the army; when he failed to appear, an arrest warrant was issued. Similarly, a man who was released on bail pending trial has since disappeared; the bail is now forfeit, and again an arrest warrant is being issued. Another family lost possessions during a raid on their house by state officers and now has nothing left with which to identify the missing person when making complaints. Others may have problems associated with joint bank accounts, property title deeds and other documentation and records where the disappeared person’s authorisation or involvement is somehow required to permit an inquiry or transaction. 

The practical problems faced by families of the disappeared need to be addressed now. The mother holding an arrest warrant for her disappeared son or the uncle who bailed out his disappeared nephew cannot afford to wait for inter-ministerial committee meetings, policy initiatives and DNA tests. There need to be immediate measures put in place to address their difficulties. 

The Asian Human Rights Commission proposes that the government of Thailand immediately amend the law to establish, under the Independent Commission on Justice and Civil Liberties for the Southern Border Provinces or otherwise, an agency with the sole purpose of recording complaints of forced disappearance which, after preliminary inquiries, would issue a document with the legal effect of recognising that prima facie the concerned person has disappeared. The responsible agency should be highly accessible and efficient in receiving and processing credible information on disappeared persons. It should set up branch offices at convenient locations and also have staff travel throughout the region to receive complaints in a confidential and non-threatening manner. The documents it issues could then be used in courts of law, government offices, banks and other premises to free the disappeared person from any immediate obligations–pending further inquiries–and entitle a close relative to act on his behalf. The same agency could expedite arrangements for disappeared persons to be declared legally dead. ?lt;br />
Thailand already has a clear precedent upon which to base this work. After the December 2004 Indian Ocean tsunami, it became apparent that a large number of bodies would never be recovered and that the victims could be presumed dead. Ordinarily, under article 61 of the Civil Code, the relatives of persons missing in a disaster or war must wait two years before they can apply to a court for their loved ones to be declared legally dead, placing an enormous and unreasonable obstacle on people trying to go on with their lives. The cabinet in May 2005 took the sensible and praiseworthy decision to amend the law in order to exempt tsunami victims from this provision. Other countries whose nationals were victims of the wave made similar arrangements. 

The victims of killings and disappearances in the south of Thailand, or those brought to the area from elsewhere and killed or buried there, are the victims of a man-made tsunami. It has swept silently over their homes and towns, leaving a different kind of death and destruction in its wake. In fact, this man-made disaster is far more catastrophic than the natural one. It is doing much more than causing death and mayhem. It is also destroying the very institutions that allow for society to function. It is damaging beyond repair all areas of social life and basic human relations. As rightly pointed out by Angkhana Neelaphaijit, the first step for any government body concerned with ending this tragedy and reintroducing the notion of justice to people in the south is to acknowledge the extent and nature of the real problem. That problem is the forced disappearance of an as yet unknown number of persons. It is in the national interest that they be entitled to the same considerations as the victims of the tsunami. 

By establishing an agency to record prima facie complaints and issue documents certifying each case of forced disappearance in the south, the government will both be giving acknowledgement and some immediate relief to the affected families. It will also be a much-needed demonstration of sincerity upon which to start rebuilding trust and re-establishing a genuine role for the courts and prosecution in dealing with the violence there. Without such an initiative, justice and civil liberties will remain elusive to the people of the southern border provinces, independent commission or no independent commission. 

Document Type : Statement
Document ID : AS-133-2006
Countries : Thailand,
Issues : Enforced disappearances and abductions, State of emergency & martial law,