Pornpen, Khongkachonkiet, Cross Cultural Foundation
Article 2: We would like to get your insights on the importance of an effective criminal justice system and on protection of rights in Thailand. What do you think is the link between human rights and criminal justice?
Pornpen: Definitely the two are interrelated. Of course, criminal justice is related to the law; and the law tells us what we can do and what we cannot do in our community. But, when it comes to enforcing the law, of course it will affect our rights. On human rights, I think there are some absolutes where violation is prohibited, torture being one of them. Absolute prohibition of torture is very important; it needs to be protected and respected. The State has the duty to provide law enforcement officers with the basic tools of investigation needed in their profession. These tools, garnered through further education, will help to prevent police, in circumstances where they might use force or torture, to extract information to gain a confession in the name of protection of society.
When it comes to the criminal justice system where we have the law, drafted and set-up, we definitely need to further educate on two fronts: on the one who enforces the law, and on the one who might be affected by those enforcements.
For example, in many cases in Thailand, it is permitted for traffic police, at times, to strike the head of a motorcycle driver. Although the driver may have violated the traffic rules, it is not right to give them a blow to the head. We don’t see this type of behaviour very much anymore, but I remember in the past I saw it quite often.
Sorry to say, I hear people talking about this kind of aggressive action by police in many developing countries, like India, Bangladesh and Vietnam. Traffic can be very stressful in any country, but this does not warrant the use of violence by police on ordinary citizens. So, law enforcement needs to consider the two entities: the enforcers and the ordinary civilians.
Article 2: You mentioned two circumstances about the enforcement of law: first, the enforcement of the law that affects ordinary people; second, the consciousness, not only on the part of the law enforcers but also on the victims of what is right and what is wrong.
Pornpen: The ordinary people should know that they should not be beaten.
The case I mentioned above seems like a minor case, yet it points to an acceptance of this practice. So, when we were talking about remedies for minor cases, again, both sides did not think that they needed to complain. If a victim complains that he was beaten, the traffic officer’s supervisor would not take any action. They would think of it as a part of everyday life that happens. It should not be like that. The deeper meaning is that it can affect attitudes on other major incidents that occur in society.
Regarding torture and violence, we need to tell others: “Don’t do that again, don’t create a red light”. Now, we will talk about something more serious. Are there are law enforcement officers who are in situations where they need to use force and violence to get a confession or information. Or-maybe they just want to use torture?
For example, drug users; there are some cases where the officer wants to get information from the person. The victims are poor, thin, they look drunk, they are drug addicts. The police think they can be abused. It will come to a point where the police will use force in suppressing illegal drugs against, what we call small fry, vulnerable persons who are drug users, selling or buying drugs. The police do this to get information to suppress illegal drugs.
Now, when we talk about solutions, we have to talk about complaints. Would drug users make a complaint, of course not! Drug users will not complain. They know that they are illegal in a way. They think that no one is helping them; so, no reporting, no complaint. As a result, we do not affect a remedy.
In Thailand, if you want to complain, to start up an investigation in order to receive compensation or to bring someone to justice, you have to go to the police. In doing this, police become both law enforcement officers and abusers. And the victims would hardly think about lodging a complaint. Things then become stuck that way.
In Thailand, we have a number of agencies with social workers and other offices that provide services. But, if you are a drug user or an ordinary person who violated the traffic rules and file a complaint with a competent officer—it is very rare that he would take up the case. It will not happen except where the victim and the family feel that it is not right and lodging a complaint will be more effective.
Like in the National Human Rights Commission, an Ombudsman, or the police office, or the media would take up a case. This is usually how the criminal justice process starts in Thailand. But it is a difficult way to start. So, when we talk about criminal justice and remedies, it is not easy. There are some circumstances where we need a lot of pressure from the public and the media. The most important consideration should be for the victims. We can sum it up by saying that the public knows that torture is not right.
Article 2: In what you have explained about torture, three points stand out: first, expectations by state agents that they can harm those who violate the law; second, victims coming from poor sections of society, who are vulnerable, usually find it difficult to seek redress; third, persons perceived to be criminals, are not likely to receive any form of assistance.
Pornpen: A good summation. These are the most visible circumstances in Thailand when we talk about torture victims. Normally, victims are not sons of rich men. They would be migrant workers, persons without registration, persons who can be bribedsomething like that.
In southern Thailand, intelligence officers victimized persons whom they perceived as enemies. This is the usual way torture happens, so we need a good deal of educative campaigning in the communities. First, we need to support the people who speak out in their own community. Later, we can help the local lawyer who is able to speak the local language. He/she can communicate with the local population to tell them: “Torture is not ok.” So, we can take up some cases in order to give victims some room to think about: “Oh, torture is not ok. We can do certain things to help victims, which could be effective over a period of time.
In the future, if we see an increased reporting or documentation of torture cases, then we would be able to communicate these facts to the government, policy makers and the media. Additionally, international organisations could put forth some accumulated data reports. If this is done, the number of torture cases would reduce somewhat but not on a permanent basis. When the issue is not continually highlighted or no longer draws public attention, there will be a resurgence in torture cases. The difference being, torture will be done secretly, not openly.
If, in fact, we can identify these small, secret, torture camps, there will be a flare-up of attention on the issue of torture. However, we cannot rely entirely on this method. As human rights campaigners we know that using the same old stories is not effective. So, if we do not have good media friends who understand and try to cover the story consistently, the situation will be difficult as there only a handful of these journalists operative at best.
And in situations like war and counter-insurgency in southern Thailand, there are thousands of people fighting, even among themselves. What surfaced is a need to pay attention to the issues of the complaint mechanisms as well as the investigation itself. NGOs and independent agencies can only do an initial investigation. In our system, it is the duty of the police to do the official investigation.
And to continue on in this subject, not one officer accused of torture has been subject to an investigation by police, prosecutors or judges. In effect, there is no justice because the criminal justice system does not prosecute police or military perpetrators. In southern Thailand, many of the victims of torture have themselves become defendants in the criminal justice process. They are being prosecuted by their torturers for making allegations of torture against them.
The torture victim’s complaints have become part of the evidence for the victim’s defence and not as evidence for the prosecution of the perpetrators of torture. Therefore, we see that the victim’s complaints/allegations of torture are not used as evidence in bringing the perpetrators of torture to justice.
So, on one side, the criminal justice system favours the perpetrators, but on the other side, it does not support the victim’s allegations of torture.
Article 2: Freedom from torture is an absolute right. In Thailand, how is this right understood? Do people comprehend its absolute nature or understand something else?
Pornpen: In general, the people understand that torture is not right. For example, in cases where the accused was tortured by the police and they are hurt or injured- these stories and pictures are no longer published in the local newspapers, in comparison to the past.
Nowadays, we rarely see pictures in the newspapers of suspects who still have visible injuries when they are presented at a press conference. Previously, we have seen this kind of practice, but not anymore. As the police and law enforcement officers now know that torture is wrong, they have developed rules and regulation prohibiting torture.
In the past, suspects were presented in public in horrible conditions. Today, for the general populace, torture is not acceptable. However, in cases of national security or suppression of illegal drugs, some victims are presented in public with visible injuries from torture though the reporting may not be obvious.
So, in our society, there is compromise up to a point. I don’t have the explanation on where, how and why torture is accepted. Again in the south, both the local people and the activists have to take precautions. If you release anything on torture, you will be reported by the local people themselves to relevant government agencies or even to the supervisor of the local army unit.
The National Human Rights Commission (NHRC) has regular meetings in the south, and I am a member of the southern Committee. These issues are being raised officially when writing reports or talking to the senior officials of the place. There is a common agreement that torture is not acceptable. As to why it happens, I think there are reasons why the higher superior would allow subordinates to keep rooms for torture. One explanation is: as we are in a guerrilla war, we can torture.
What we do is monitor the places of detention and communicate to complainants in the case. We have raised a report on torture per se, but what is happening now is that there are other situations evolving. Apart from torture, there is a trend of extrajudicial killings which are more brutal in nature. Some of the bodies of those killed had signs of injuries from torture. It means this practice which is outside the law is allowed by some officers. So it is becoming even more difficult to tackle and to prevent torture.
The prohibition on torture has forced and pressured some officers to commit other forms of violations of human rights. Enforced disappearances is one of the most horrible violations. In Thailand, they just keep on disappearing people. There is another NGO, Justice and Peace Foundation (JPF), which has already documented cases of enforced disappearances (see related interview on this).
At present we do not have many reports on enforced disappearances. The trend seems to be that persons are being shot dead and their bodies are deliberately left in public places for people to see. It is another type of violation. It is done in a brutal manner. The way they put the body on public display is to make sure that the family sees the bodies of their loved ones and the people in the community observe and subsequently talk about it.
The manner of this torture is not adopted, but it is still happening. Another form of violations is extrajudicial killings which really hurt us. We have been trying to use other tools in campaigning against this.
Now, let us talk a bit about solutions. In southern Thailand, we are holding peace talks between the insurgent groups and government agencies, because of the outcry for other options besides civil war to resolve the conflict. So the government has been using corrective measures to heal the situation. A big portion of the budget and a good deal of money is being paid in compensation to victims and their families, including the Tak Bai incident, where 78 people died in a truck.
Of course, what happened to them was a form of ill-treatment, yes? They were herded into the truck like animals and they ended up dying in the truck. Their families were compensated 7.5 million baht which is quite a large sum. Each of the detainees at that time was also given financial compensation, but nothing close to achieving justice was done.
We are working on both civil and criminal cases- but they go nowhere. The use of compensation, I think, is similar to the proposal of paying compensation for those who died during the crackdown in Bangkok, Thailand. The proposal to pay compensation to the Red Shirts only serves political interests and benefits the government. They are paying compensation, but at the same time there are still numerous cases of human rights violations committed, including in the south. No to be bothered, they just allocate money to compensate the victims.
Article 2: You mentioned two purposes of the use of torture as first, to sow fear and second, to extract confessions. Are these purposes still heavily relied upon by the police and the military when they make arrests?
Pornpen: Yes, they are still heavily relied upon.
To keep up with the modern world, they are trying to gather more forensic evidence now. In the past they used intelligence information in order to get news or to try to reduce crime. In other circumstance in Thailand, in general, they are using more of the new technologies, like CCTV, as their source of forensic evidence. They also have their own techniques.
I think the Thai police are quite good, using a lot of telephone tapping. Actually they are violating peoples’ privacy, but in a way that is not as abusive as in the past. Now, they are more professional because society no longer accepts violence, and how it is used. We see psychological pressure being exerted, negotiations and telecommunications used to extract information instead of bullying and torturing.
So I think there is a need to consider the issue about the amendment of the Criminal Court and Criminal Procedure Court. The law itself must exclude confessions taken by the police in their investigations if they are taken by force. In that law, which was amended after Thailand ratified CAT, it actually gives a signal to the police that the court will not accept this kind of evidence extracted through abuse.
There are some lawyers in the field who say that the Amendment did help the police in the way they write up their prosecution files. They think that, if the courts will not listen to them, why should they waste their time torturing a subject to get a confession. So the rules on evidence give the police a signal and a good lesson. Some of the lawyers think: that’s it. The Police don’t do that anymore, right, because the court does not accept that kind of evidence. Yes, there have been some positive efforts to reduce torture.
But we cannot yet say that there is no torture and ill-treatment going on when law enforcement officers are going about their duties.
Article 2: You mentioned there are two types of complainants. First, those who no longer complain because nothing happens; second, those who complain because they think torture is wrong. For these two types of persons, how much confidence do they have in the system of justice?
Pornpen: I can give you examples about cases in the south that we worked on. As we started forming a team of lawyers and paralegals, we gained some confidence from the local people. We prepared a lot of reports when we came to know immediately after an arrest some personal information about the victim as to where he/she was taken, and who took him/her.
In the period 2004 to 2006, there were some cases that we took up and filed a report on. Later on, there was a significant instance in which a man was tortured and the victim’s lawyer, one Somchai Neelapaijit, disappeared. As time went on, the criminal justice process was not going anywhere, including the torture complaint. In 2009 or 2010, the torture victim was sued by the police officer who tortured him and was allegedly involved in the disappearance of his lawyer, Somchai. The case against the torture victim went to court. This occurred in Bangkok and we provided legal assistance for him. The court found the victim guilty of defaming the police officer by making allegations of torture against him. He was sentenced to two years imprisonment. This is justice gone awry.
There were other police officers who sued eleven people who also filed complaints of torture against them in 2004. So it is many long years of battle where torture victims need to face accusations and prosecution by the police. They are being prosecuted for defamation for “reporting wrong information” against the police. The victims are being sued for making a complaint. As there is no free legal aid, most of the victims who are poor go to jail.
However, in one particular case, we managed to bail the victim out, we wrote appeals, and luckily the court of appeals found him not guilty. He is free now. But just imagine how many things end up causing so much suffering for the torture victims who stood up and fought for their rights. Many victims either wanted to run away or join insurgent groups, as there is no way out for them. If we manage to convince a torture victim to fight back, the police would also fight back, and what they are able to do hurts the victims more.
We also have cases where the victims are not willing to file lawsuits or complaints against the police or the army. The situation becomes even more difficult if you file a complaint against the army. You will have to face an army court, with the different circumstances of martial law and emergency decrees. Actually, martial law has obstructed other criminal justice processes against other officers because all things are subject to the Martial Court.
Article 2: You have seen and assisted numerous torture victims and their families. From the last example of a torture case, you say, it did not go anywhere in the justice institution. What is it that keeps you and other legal professionals battling on, even though you know very well your cases will not be successful?
Pornpen: In Thailand at present, there is some room for change. We have come so far as to where solutions and compensation were accepted by the courts as a national policy, but not law. In general, we see that judges, police, army and the public were actually talking and communicating with one another. These exchanges are being monitored by civil society and communities. A change in their behaviour and performance has been effected. They say, like the Ministry of Justice, that the criminalization of torture is on its way. In some Departments and Committees, there are also discussions about becoming a member of the OPCAT (Optional Protocol to the CAT Convention), which is related to torture and monitoring the places of detention.
I think the discussions about CAT and the discussions about torture prevention have reached Government level. I think we have made some great efforts besides having experienced some successes. Since the public has been talking about torture cases, and we have been documenting and facilitating cases, it has helped in reducing the cases of torture. We certainly contributed to the attitudinal changes among law enforcement officers themselves. The Ministry of Justice is trying to communicate the message to other agencies, such as prisons, military commanders, and other public institutions, including the police and the army. It certainly will have a positive effect on the rights and liberties of all the people.
To be noted is that the local civil society has found some good friends at the national level who are involved in the criminal justice system. We have a Law Reform Committee which is positive in bringing forth issues from the ground level up to cause changes in the law and in policies. In our various civil societies there are multiple groups with whom we can cooperate, especially organisations like the AHRC, in order to bring vital issues to the table.
Let us not forget that there are still particular areas that we need to think about, like rehabilitation of torture victims. We have documented many cases of rehabilitation. I am of the opinion that basically the victims heal themselves through their religion, through community interaction, through friends. There still remains a negative perception in our society against torture. We must keep on working.
