Asian Legal Resource Centre
(An additional document in support of the alternative report to the initial report of Thailand to the Human Rights Committee presented by the Asian Legal Resource Centre, July 2005)
Preamble
1. This is a supplement to the report of the Asian Legal Resource Centre (ALRC) submitted to the Human Rights Committee (the Committee) in March 2005 to coincide with its consideration of the initial report of State party Thailand in accordance with article 40 of the International Covenant on Civil and Political Rights (the Covenant). The ALRC report, ‘Institutionalised torture, extrajudicial killings and uneven application of law in Thailand’ (ALRC Report) has been made publicly available on the ALRC website (www.alrc.net). It has also been published and widely distributed in the ALRC’s bimonthly periodical, article 2, as ‘Rule of law versus rule of lords in Thailand’ (vol. 4, no. 2, April 2005: www.article2.org).
2. This document does not reiterate the contents of the ALRC report except in so much as to identify in summary areas for the Committee to consider with reference to a set of key recommendations. It supplements the report by further examining the roles of certain institutions in reference to article 2, specifically the Department of Special Investigation, Department of Rights and Liberties Protection, Central Institute of Forensic Science and proposed missing-persons centre. It contrasts the roles of these agencies with those of the National Human Rights Commission of Thailand and the Ombudsman. Additionally, it relates some recent cases and developments since the ALRC submitted its report to the Committee, with particular reference to articles 6, 7 and 19 of the Covenant.
3. The government and society of Thailand are different from nearby countries in a number of respects. Although democratic change there is still limited by old ways of thinking and doing, compared to its neighbours, Thailand is far advanced. Struggles to end the absolute monarchy and military dictatorship in Thailand succeeded with relatively little bloodshed. By contrast, in neighbouring Cambodia the monarchy’s resistance to change contributed to the tensions that caused the mass killings of the 1970s and total collapse of the society. In Myanmar too, the transfer of power from colonial rulers to an independent government was erratic and lacking in rational leadership, resulting in the continued dominance of the military and denial of a role for civil society there. Thailand, however, has negotiated significant change in recent decades without the same scale of upheaval or tragedy. For this the State party rightly deserves recognition.
4. However, the legacy of Thailand’s militaristic and feudal past persists. As a result, there are serious conflicts between efforts to modernise institutions and the deeply entrenched habits of its military and police. The policing system of Thailand in particular has not undergone any meaningful or significant change. Public confidence in the police is very low. The average person in Thailand associates a police officer with corruption and violence. Murders, extrajudicial killings, torture and forced disappearances go uninvestigated and unaddressed either because the police do not care about them or because they are the perpetrators, or are in league with the perpetrators.
5. As the silence that has long existed around brutal and corrupt methods of law enforcement in Thailand is being broken, conflicts are growing. Reports of heinous torture and killings by police are at last being discussed publicly. Police power is no longer presumed. As the extent of corruption is laid bare, the entire criminal investigation system is being subjected to growing criticism and ridicule. Even some senior police officers admit that things are going badly wrong. The trend in legal reform is rightly towards removing powers from the police and giving them to semi-autonomous civilian agencies. However, the gap between attempts at reform and the realities of policing in Thailand is still very wide. It is this gap that must be recognised and closed if the State party is to more fully comply with the Covenant.
Article 2: Effecting rights under the Covenant
6. The ALRC has already identified numerous holes in Thailand’s laws and institutional arrangements that undermine the enforcement of rights as articulated in article 2. These pertain, among other things, to the use of torture, forced disappearances, bringing of complaints to the high courts, making of complaints against police, investigating complaints against police, criminal investigation procedure, forensic science, victim compensation and witness protection.
7. Article 2 is all about institutions: what institutions do or do not exist to protect rights and afford remedies, what improvements can be made to their work, and what further institutions are needed. With reference to Thailand, a number of government and quasi-government institutions deserve special attention: the Department of Special Investigation, Department of Rights and Liberties Protection, Central Institute of Forensic Science, proposed missing-persons centre, National Human Rights Commission and Ombudsman.
I. Role of the Department of Special Investigation
8. As discussed by the ALRC previously, Thailand lacks an independent mechanism for the taking of complaints and launching of investigations and prosecutions against police. The nearest equivalent is the Department of Special Investigation (DSI), under the Ministry of Justice, which addresses special cases deemed ‘in the public interest’. Among those that have been brought to the DSI in recent times are the disappearance of Mr Somchai Neelaphaijit (ALRC Report paras 63-64), torture of Ekkawat Srimanta (ALRC Report para. 73[ii]) and killing of Charoen Wat-aksorn (ALRC Report Annexe 1). Generally, these cases are transferred to the DSI when the victims or their supporters are able to generate enough pressure through media publicity and other actions. However, once attention is eased the complaints are swallowed up by the DSI and there is a lack of transparency and evidence of action to address even the most high-profile cases properly. The effect is to create further demoralisation among victims and their families where it should be doing the opposite. The three above-mentioned cases all speak to this point:
i. The wife of Mr Somchai, Mrs Angkhana Neelaphaijit, has expressed sceptisism over the ability of the DSI to resolve the case of her husband, which is discussed in further detail under article 6 (paras 37-41). Although two Deputy Prime Ministers were appointed to oversee its handling, there is no information or evidence that the DSI has taken the necessary steps to solve what happened to Mr Somchai. Mrs Angkhana has stated that up until recently she was not even contacted by the Department. It has often been unclear as to whether or not the DSI has even been handling the case at all. The Minister of Justice was quoted in newspaper reports as saying that the investigation would be completed by the end of June (one year and three months since the killing) but as usual no information on progress has been forthcoming.
ii. The wife of Mr Charoen, Mrs Korn-uma Pongnoi, has expressed similar doubts over the work of the DSI, and recently called upon it to reopen the case into her husband’s killing. She insists that the investigators can identify the persons behind the killing, but as they are influential people they have enjoyed impunity. The DSI has sat on the case for a year without result. Mrs Korn-uma says that the DSI has excluded a great deal of evidence from its investigation. After meeting with Mrs Korn-uma on June 21, when she led protesters to the front of their offices, the Minister of Justice and the Director of the DSI agreed to reopen the investigation. Under the circumstances this announcement gives little cause for optimism and seems intended primarily to deflect media attention rather than as a genuine commitment to solving the murder.
iii. In the case of Mr Ekkawat, according to the Ministry of Justice in a recent letter to the sister organisation of the ALRC, the Asian Human Rights Commission (AHRC), six of the police who committed torture have been removed from duty (see para. 57). However, no prosecutions are known to have followed and nor is any action known to have been taken against the police station superintendents and deputy superintendents concerned. It is not known what role if any the DSI played during the investigation, although the Ministry of Justice has informed the AHRC that the DSI did investigate the case. However, the disciplinary action taken against the six police appears to be strictly internal procedure, whereas had the DSI performed its role it should have been able to lodge criminal charges with the public prosecutor, suggesting that its involvement may have been nominal at best.
9. Another perplexing feature in the handling of serious cases in Thailand is that those not transferred to the DSI are sometimes instead transferred to the National Counter Corruption Commission (NCCC), as a defacto alternative non-police agency. According to the Ministry of Justice in another recent letter to the AHRC, this is what has happened in the case of Mr Anek Yingnuek and friends (ALRC Report para. 74[ii]). Although the ALRC has opined that the case of Mr Anek is as serious as that of Mr Ekkawat and deserving of a thorough investigation by the DSI, the Department has not been given the case, perhaps for want of public pressure. Under any circumstances, the ALRC is aware that many such cases are transferred to the NCCC for reasons that remain unexplained. As has been rightly pointed out by all parties concerned, the NCCC is charged with addressing corruption, not cases of torture, extrajudicial killing or other gross police abuses. Moving such cases to a body that is not mandated to address them may have an even more detrimental effect than leaving them in the hands of ordinary police investigators, as the process of inquiry is slowed greatly. It should be added that the NCCC is recognised publicly as not having performed well according to its actual mandate to combat corruption, so it is hard to imagine that it could make any progress concerning cases of grievous torture or extrajudicial killing that are outside of its jurisdiction.
10. While the Department of Special Investigation has a role in obtaining redress for victims of rights violations in Thailand as envisaged under article 2, to date it has been too limited, and for various reasons it is not performing its existing functions well. The management of the DSI must be changed to make it a more transparent and speedy agency. This certainly requires increases in budget, personnel and training. However, it also requires a change in administrative style and behaviour. The DSI must be far more responsive to the needs of victims and their families. It must be able to operate autonomously and with greater initiative. The Government of Thailand must also put in place measures to penalise police officers that attempt to obstruct the work of the DSI, as has been reported from the south.
11. Notwithstanding an improved performance from the DSI, Thailand is desperately in need of an independent body to receive, investigate and prosecute complaints against police officers and other state officials. One or more special units should be initiated under the supervision of the Attorney General or Minister of Justice. The units should have all the powers of full criminal investigation units, including powers to arrest, interrogate and prosecute police suspects. The ALRC has already stressed this need throughout its report to the Committee.
II. Role of the Department of Rights and Liberties Protection
12. As the ALRC noted in its original submission to the Committee, the Department of Rights and Liberties Protection under the Ministry of Justice oversees the new witness protection and victim compensation schemes, which are integral to guaranteeing remedies under the Covenant as envisaged in article 2. This Department is newly established and deserves recognition for its work so far. However, the Department is under-funded and poorly equipped. For instance, it has recently been given responsibility to handle communications with international organisations on human rights standards in Thailand, including the State party reply to the April 13 list of issues from the Committee (CCPR/C/84/L/THA). This is a large amount of work; yet, the Department has only one staff person allocated the primary responsibility of handling all these communications.
13. More importantly, the Department lacks the means to offer very quick intervention in most cases where witnesses may be in need of immediate security or victims of immediate assistance. This is a critical weakness that jeopardises all aspects of the Department’s work and seriously undermines the ability of the State party to implement article 2. For instance, in the case of Mr Urai Srineh (para. 53), after allegedly suffering very brutal torture by provincial police officers he was approached while still in hospital and recovering from his injuries and offered money to stay silent, which he accepted. As a result, the likelihood of any complaint being lodged against the alleged perpetrators in this case is now very remote indeed. The sum of money that Mr Urai obtained at the time is also said to be insufficient to pay for his hospital expenses in the long run, but under the circumstances it is likely that he saw it as the best possible outcome. At present there are no arrangements for providing emergency compensation to persons needing to pay hospital bills and other expenses associated with recovery from abuse by state agents. Poor persons have little choice but to take whatever they can get, when they can get it, from whoever is offering it.
14. Although the Department oversees witness protection, the actual provision of security is in the hands of the National Police Commission. For persons who may be getting protection from police officers or other state agents, it is a disturbing prospect to find police being sent to protect against police. In one case known to the ALRC, the witness concerned found that a number of police had been assigned as watchmen. When the witness complained about the management of this ‘protection’, one of the officers implored that they also did not know what they were supposed to do but asked that no complaint be lodged against them because they did not want to get in trouble and were just following orders.
15. The establishment of this Department is an important and commendable step in the offering of effective remedies by the State party as envisaged by article 2. However, for it to operate effectively, and in particular for it to manage the incipient witness protection and victim compensation schemes properly, the State party needs to provide it many more funds, staff and training. As the ALRC has already stressed to the Committee, the role of the Department must be greatly strengthened if it is to meet public expectations and bring Thailand into compliance with the Covenant.
III. Role of the Central Institute of Forensic Science
16. The extent to which forensic science is used in criminal investigations has a direct bearing on the scale of human rights violations throughout Asia. To deny the use of forensic science in criminal investigations in itself amounts to a serious human rights violation, as it permits the continuation of flawed and violent methods of policing and attendant abuses. If the perpetrator of a crime or a gross abuse of human rights is not detected for want of proper forensic analysis-either inadvertently or deliberately-the victim is bereft of an avenue through which to pursue a remedy. Where effective remedies are not forthcoming, crime and rights abuses are further encouraged. Thus, any state that is serious about preventing crime and protecting human rights is obliged to improve the quality of criminal investigations, which means using forensic science expertise extensively.
17. The role of forensic experts in criminal investigations throughout Asia is usually limited because of vast powers held by the police. In most countries, Thailand among them, the police control all areas of criminal investigation: in a few, the public prosecutor shares power. In many, the law has not described the role of forensic professionals in detail; in most, their presence in criminal investigations is not obligatory. The result is that the police or prosecutors use forensic experts very little. Unless systemic changes are made to expand the role of forensic professionals and delimit the power of the police over criminal investigations, this situation is unlikely to change.
18. In Thailand, the importance of proper and independent forensic science in criminal investigations has been recognised through the establishment of the Central Institute of Forensic Science (CIFS) under the Ministry of Justice, which has been in operation for two years. Prior to its establishment, the police had unchecked power over the issuing of death certificates and conducting of post-mortems. With the advent of the CIFS there exists an agency with the purpose of checking that power. The creation of the CIFS, like other newly established agencies in Thailand, is an act vested with great significance for which the State party deserves recognition. The CIFS is a key government agency for the realising of effective remedies in accordance with article 2 of the Covenant.
19. However, it must also be recognised that the CIFS faces an enormous uphill task. Its role is still extremely limited. At present it has rudimentary operations in only four of the country’s 76 provinces; in just one of these, Nonthaburi, it is actively engaged in crime scene investigations. It requires permission from the police to join with them in investigations, and to be invited to work outside of the four provinces to which it is technically restricted. The possibility of expanding its role depends upon many factors, including the extent to which it can succeed in professionalising forensic work in Thailand in its area of current activities, and the political will to support its initiatives.
20. By far the greatest threat to the success of the CIFS is the police force. As described by the ALRC, the police perceive the CIFS to be undermining their previously unassailable power. They have in recent months shown that they are at best disinclined to assist the Institute, and at worst are quite prepared to launch counter-attacks on its credibility, as well as that of its staff and forensic science in general. Staff persons of the Institute have increasingly been denied access to crime scenes in most parts of the country: it has been reported that in some areas, including the southern provinces, orders have been issued to police stations prohibiting them from contact with the CIFS on threat of punishment. Findings of the Institute’s staff have also been questioned by the police, and individual staff targeted in the media and through legal sanctions. In two recent cases discussed under article 6 (para. 49), apparent homicides have been written off by the investigating police as suicides. Both victims had multiple fatal gunshot wounds: one with two bullets in his brain, the other, four in his chest and one in his brain. In both cases the bodies had apparently been moved after the killings; in the latter case, the ‘suicide’ had come at the end of a stand-off with police officers. However, the police have in each instance reportedly defended their findings and in the latter case the officers concerned have even sued the Deputy-Director of the CIFS and the Deputy Permanent Secretary of the Ministry of Justice for suggesting otherwise, as discussed under article 19 (para. 62).
21. The CIFS has since its inception dealt with numerous cases of extrajudicial killing and torture by the police. Often its findings have directly contradicted those of investigating officers or forensic staff under the police department. Large numbers of cases have involved clear fabrication of evidence at the crime scene by police officers: such as the planting of drugs-particularly during the 2003 ‘war on drugs’-or weapons. In many instances the complaints have been brought to the CIFS by relatives of the deceased who have tried without success to have the death properly investigated by police: sometimes carrying the remains of the deceased person from outside of the Institute’s area of jurisdiction to its offices for examination.
22. There is as yet no systematic integration of forensic science into criminal investigations and judicial procedure in Thailand, which poses a grave obstacle to persons seeking to obtain a remedy as envisaged under article 2. Where families and other persons concerned with victims take the initiative to have the CIFS investigate a case there is no possibility of further investigation without police cooperation. Public prosecutors continue to depend on the police. The police for their part prefer witness testimonies to scientific evidence, which also suggests their predilection for extracted confessions through use of torture. It has been alleged that senior officers in some parts of the country, including the south, have advised their subordinates to disregard forensic science, and have cast doubts over its accuracy and relevance for investigations. To a lesser extent this mentality extends to other parts of the judicial system: many judges as yet do not understand or trust forensic science, or are confused about it by doctors doing forensic work who are not properly qualified.
23. The shortage of forensic professionals in Thailand is itself a serious concern. One of the reasons that unqualified doctors perform forensic inquiries is that there are only about 60 forensic pathologists in the country. At present only five are working at the CIFS. In most cases the police call general practitioners working in state hospitals to investigate. There is little incentive or enthusiasm for these doctors to assist, especially as they are often called to deaths at locations far from their workplaces and are not remunerated for the travelling time or expense. If they fail to attend they are sent warnings rather than given assistance. This pressure on doctors to perform post-mortem investigations against their will has been cited as one of the reasons that over 2000 doctors have quit government hospitals in the past four years. Ultimately, the lack of skills and enthusiasm of doctors for this task cause many serious rights violation cases to be improperly investigated, to the reassurance of the perpetrators. The police also do not have qualified crime scene officers: investigations in most cases are done by police officers who refer their findings to lab scientists, of which there are likewise only a few hundred around the country.
24. Obstacles to the wider use of forensic science in criminal investigations in Thailand must be understood also as obstacles to the effecting of rights under the Covenant, and addressed by the State party in these terms. There are many opportunities for Thailand to obtain technical and financial assistance for forensic science from abroad. Since the Indian Ocean tsunami of December 2004, many highly equipped and professional international agencies have been involved in forensic work in Thailand. These agencies are in an excellent position to extend technical assistance to the CIFS and should be encouraged to do so. The Committee should pay special attention to this matter in its discussions with the State party, and direct the attention of concerned United Nations agencies and mechanisms to the same.
IV. Role of the proposed missing-persons centre
25. The ALRC warmly welcomed the announcement by the Minister of Justice in March that a missing-persons centre would be established under the Central Institute of Forensic Science. The proposal to establish the centre was a bold initiative that came after years of lobbying for its creation by the Deputy-Director of the Institute, and one that could strongly further the rights of victims in accordance with article 2.
26. Regrettably, although not surprisingly, the police force immediately set out to sabotage the proposed centre. At a second meeting called by the Minister to discuss the matter in April, the police-who had previously shown no interest in the idea-insisted that it would be their job to set up the centre. Having said that, no police representatives attended two subsequent meetings. Finally, in June the CIFS was told by senior government officials that the police force had been given the go-ahead to establish the centre. This instruction was subsequently countermanded verbally by the Prime Minister; however, it remains to be seen as to whether or not the Ministry of Justice will be permitted to establish the proposed centre, and whether or not the police may attempt to establish a competing agency. According to the latest publicly available information, the ministry has tabled its proposal with the cabinet. However, the police are still insisting that they should be given authority, and are backed by senior government officials including a former police general who is now a Deputy Prime Minister.
27. The police will fight any serious efforts to establish a missing-persons centre in Thailand that is outside of their authority because if properly managed it would open the door for independent official investigations into the many human rights abuses they commit. Giving the police control over any missing-persons centre would inevitably defeat the very purpose of the proposed agency. Their attempts to obstruct the course of the proposed centre must be opposed vigorously by the State party, and the Committee should place a strong emphasis on seeing that the said centre be established outside police control and ensure that all prerequisites are met for its effective functioning.
28. In setting up the missing-persons centre, the State party should consider the following.
i. The centre needs access to the remains of missing persons. There must be a body, or something upon which investigations may be based, to begin work. However, in many forced disappearances the victim vanishes without a trace. Police are also accused of damaging the few shreds of forensic evidence left at the scene of a disappearance. Under these circumstances, to identify the perpetrators and prosecute them according to the gravity of the crime is extremely difficult. It follows that to protect vital forensic evidence forced disappearance must be made a crime in Thailand. Legal provisions must also exist to prohibit disposal of bodies in suspicious deaths until the proper procedure has been completed.
ii. The centre must go beyond simple identification of persons and deal with all aspects of disappearances. It should not be limited to just identifying remains without thoroughly examining the circumstances of death. If its mandate is too restrictive, many questions will remain unanswered and cast doubt over its ability to deliver justice. If the perpetrators of disappearances are not held accountable, it will only serve to encourage further acts of cruelty. Modern forensic science offers numerous methods by which the circumstances of death can be established. Once again, the international community has much to offer in giving guidance on how to undertake enquiries into forced disappearances, as well as resources for this purpose. Similar centres operate in numerous countries around the world, and these should be willing to offer knowledge and skills to the new agency. Professionals with relevant expertise in medical, legal and other fields from around the world and within Thailand should be actively involved in establishing the centre and giving advice to this end. Foreign governments that have been keen to donate large amounts of money for the recovery efforts after the tsunami should likewise offer the necessary support to make this centre a success.
iii. To identify missing persons and perpetrators of disappearances is an act invested with much more than purely legal and technical significance. It is also a deeply personal and innately human act. Forced disappearance has been recognised as a grave human rights violation not only because of the effect on the victim but also because of its significance for the family and loved ones left behind. Neglect of the dead and missing erodes not only family morale but also that of society as a whole. For this reason, families of victims should be brought into discussions on the establishing and managing of the centre at every available opportunity.
V. Roles of the National Human Rights Commission & the Ombudsman
29. In contrast to the preceding organisations, neither the National Human Rights Commission (NHRC) of Thailand nor the Ombudsman is an agency with capacity to afford effective redress for rights violations under the Covenant as per article 2. While both are potentially useful for the furtherance of human rights and good administration in Thailand, neither has the authority to investigate and prosecute complaints as envisaged in article 2.
30. It should be stressed that with regards to the NHRC the State party’s report is misleading. Therefore, the third question of the Committee regarding the ability of the NHRC to implement Covenant rights under article 2 is also misguided. [“Constitutional and legal framework within which the Covenant is implemented (Art. 2): 3. Please inform the Committee about action taken by the National Human Rights Commission since its establishment (paras. 187-189 of the report) in the implementation of the Covenant rights¡K” (CCPR/C/84/L/THA, 13 April 2005)]. The preceding agencies referred to in reference to article 2-the Department of Special Investigation, Department of Rights and Liberties Protection, Central Institute of Forensic Science and proposed missing-persons centre-are all of much greater importance in terms of implementing the Covenant than the NHRC. In practical terms, the investigating power of the NHRC is very limited, and is restricted to making recommendations to state agencies for action. In fact, state agencies have consistently ignored the recommendations of the NHRC, knowing that it has no power, and that it is viewed with animosity by senior government figures, which the ALRC has discussed previously (ALRC Report para. 18). The State party has been at pains to emphasise that where recommendations are ignored the NHRC can table a report to Parliament in accordance with section 200 of the Constitution. The ALRC is not aware of any case in which this has been done. It is also not aware of a state agency or officer ever having been punished for ignoring the recommendations of the NHRC.
31. The ALRC pointed to the limitations of the NHRC’s role before the Commission on Human Rights in Geneva during its 61st session in May, with reference to a brutal torture case. According to information available to the ALRC, the largest number of complaints that the NHRC receives are about police, of which some 19 per cent are about torture. However, having received the complaints, the NHRC cannot investigate the cases without the cooperation of the police: as the police are also the alleged perpetrators, the matter ends there. Very often, tortured persons have also given forced confessions and are awaiting trial or have already been tried. In these cases too the NHRC is refused a role on the ground that it is prohibited from investigating cases pending in or decided by the courts. So the NHRC is effectively barred from dealing with most rights cases involving police.
32. The Office of the Ombudsman is also prohibited from investigating cases going before the courts. However, the AHRC has argued to the Ombudsman that matters pending before the courts may be distinct from the complaints lodged at the office, and therefore merit examination (ALRC Report Annexe 2). In a March 30 reply to the AHRC regarding the brutal torture of Mr Anek Yingnuek, referred to above, the Ombudsman said that the victim could “raise the issue of police officers’ malpractices of torturing in the attempt to obtain a confession for the court to consider”. The difficulty with this assertion is that, as discussed, the judicial system in Thailand has no provision to address cases of torture, for want of ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; domestic legislation; an implementing agency; and relevant court procedures and training of judges, among other factors. Even in cases where depositions on torture have been made before a court-such as by the clients of missing human rights lawyer Mr Somchai Neelaphaijit in the Bangkok Criminal Court during April-these have only been as evidence in reference to other offences. In that case, four of Mr Somchai’s former clients who had been charged with having planned bombing attacks in Thailand were acquitted for lack of evidence. Among the four, at least one said that he was brutally tortured to extract a confession. A prominent senator testified in court on his behalf to the effect that while in police custody the man had been suffocated with a bag and hit in the groin with a club. Meanwhile, one of the police officers implicated in Mr Somchai’s disappearance has been identified in court as having been among officers connected with the arrest and torture of his former clients. Again, testimonies of torture were accepted by the court in that case only with reference to other charges pending against the accused. To the knowledge of the ALRC, in no case where the question of torture has been raised before a court in Thailand has there been explicit action taken upon it by any person or agency in the judiciary, administration or police.
33. Therefore, the National Human Rights Commission and Ombudsman, while potentially valuable agencies for the promotion and protection of human rights in Thailand, must be excluded from any discussion with reference to application of article 2 (ALRC Report para. 11[ii]).
Article 6: Right to life
34. There have been no significant developments in addressing extrajudicial killings of alleged drug traffickers during 2003 or the mass extrajudicial killings in the south of Thailand during 2004 since the ALRC submitted its report to the Committee in March. However, with regards to the mass killings in the south, the ALRC would like to draw particular attention of the Committee to the annual report of the Special Rapporteur on extrajudicial, summary or arbitrary executions:
Thailand: a request was made [for a country visit] on 8 November 2004, especially in relation to the southern provinces of Narathiwat, Pattani and Yala. In a reply of 22 November 2004 the Government noted its deep regret at the 78 deaths that occurred in relation to the transportation of detainees and characterized it as a “process which, in hindsight, with greater care and more scrupulous preparations could have been avoided”. It also noted its commitment to “ensuring that the incident is promptly, independently and thoroughly investigated” and that “where wrongdoing is found, those responsible would be held to account by due process of law”¡K In the Government’s view, domestic processes of investigation “should be permitted to pursue their work unperturbed”. The view was also expressed that a public request to visit by the Special Rapporteur “could well affect the overall climate under which the Independent Commission has to work, to the detriment of its effectiveness and likely to prejudge its findings”. The Special Rapporteur¡K entirely agrees that a visit by a special rapporteur could never be a substitute for appropriate domestic processes. In his view such visits are much more likely to raise confidence in those procedures, and to demonstrate that a Government is extending its full cooperation to the special procedures of the Commission on Human Rights. He looks forward to the outcome of the prompt report which the Government has undertaken to produce in relation to this matter, and reaffirms his willingness to undertake a visit at an appropriate time. [E/CN.4/2005/7, 22 December 2004, para. 26(g), emphasis added]
35. It is manifest that these important government commitments have not been kept. Although the findings of the two inquiries into the incidents have been made public, the inquiries could not be said to have been properly independent, as they were politically appointed. The object of the two investigations was primarily to deflect public and international criticism, rather than to reach conclusions with which to address the worsening conflict in the south and the wider institutional problems for the protection of human rights in Thailand. This they achieved, as evidenced by the March 21 note verbale to the Commission on Human Rights by the Permanent Mission of Thailand to the UN Office at Geneva, with regards to the November 2004 killings:
The Independent Fact-Finding Commission was promptly established to carry out a transparent, impartial and immediate investigation into the circumstances of the incident¡K
According to the findings of the Commission, the demonstration at Tak Bai Police Station was pre-organised and pre-planned by a group of people with certain ulterior motives. The demand to free six detained members of a village security guard unit was merely a pretext. Some of the demonstrators were also armed. It was established that the exercise of state authority in taking control of the situation and maintaining public order was reasonable given the necessity dictated by the prevailing circumstances. However, the Commission found that, during the process of transporting arrested demonstrators to an assigned military camp for interrogation, errors were made on the part of commanding officials who failed to properly discharge their duty resulting in unfortunate injuries and deaths. However, the Commission found that these officials did not have the intention to cause such injuries or casualty. The Commission also provided a set of recommendations to address the issue in a comprehensive manner.
Promptly after receiving the findings and recommendations from the Independent Fact-Finding Commission, the Cabinet issued a resolution instructing agencies concerned to undertake appropriate measures in accordance with the said findings and recommendations. Pursuant to the aforementioned Cabinet resolution, a Remedial Commission has been established to provide remedies and assistance for any damage caused in the course of the incident¡K
The Ministry of Defense has, in pursuant to the Cabinet resolution, also commenced an internal investigation process on the basis of the findings of the Independent Fact-Finding Commission. Appropriate measures are being considered against officials who failed to properly discharge the assigned functions and duties. In addition, a National Reconciliation Commission has been recently established to foster a spirit of reconciliation and national unity through a consensual, non-partisan approach¡K [E/CN.4/2005/G/22, 22 March 2005]
36. The note verbale reveals the true purpose of establishing the commissions of inquiry: to make a neat performance for domestic and international viewing, and simultaneously to displace the conventional role of judicial agencies, which have been absent in the aftermath of these killings. The note from the Permanent Mission impresses on the reader that a judiciary is unnecessary where the government can convene a group of former civil servants to excuse army personnel responsible for mass deaths in custody because ‘they didn’t mean it’ and there were troublemakers afoot to blame. The “domestic processes of investigation” mentioned to the Special Rapporteur have been unperturbed because of their lack of work, not the pursuit of work. Even those found responsible by the inquiries have not been “held to account by due process of law”. As made clear by the Permanent Mission, the matter has been wrapped up with “appropriate measures” being considered by the Ministry of Defence. Despite public and international outcry, no prosecutions have followed against any state official over the killings. The National Reconciliation Commission, like the National Human Rights Commission, is largely irrelevant to this discussion for want of judicial authority. The families of victims have been left to pursue remedies in the courts of their own accord, some with the assistance of lawyers’ groups, including the Law Society of Thailand. Some have complained that promised compensation has been slow in coming or pitifully small. Families of the victims of the Krue Se mosque raid (ALRC Report para. 34) are reported to have received only 2000 Thai baht (US), without explanation or apology. As a consequence, the Government of Thailand and its security forces have lost all trust of the population in the southern provinces, and are faced with daily mounting violence from which there will be no easy turning back.
37. The unresolved case of Mr Somchai Neelaphaijit, to which the ALRC has already referred, has been another cause of discontent in the south, although it is a case with enormous implications for the entire country. Despite the fact that two Deputy Prime Ministers were assigned to the case, there have been no further developments. In April, the ALRC made an oral statement to the Commission on Human Rights for Mr Somchai’s wife Angkhana. She has alleged that there has been a cover-up and that behind the five relatively junior police officers on trial in connection with her husband’s disappearance there are powerful people who are beyond prosecution. The government has made no attempt to deny this allegation.
38. Also in April, the ALRC together with the Thai Working Group on Human Rights Defenders assisted Mrs Angkhana to submit a formal written complaint on her husband’s disappearance to the Working Group on enforced or involuntary disappearance. At its meeting in Bangkok in June, the chairman of the Working Group announced that it was taking up the case and expressed great concern over the disappeared lawyer. The ALRC has, among others, welcomed the news that the Working Group has taken up the case. However, although the Government of Thailand has agreed to cooperate with the Working Group, the Prime Minister said that it has ‘done all it can’ and that the case has nothing to do with the government. These comments do not bode well in view of the level of ‘cooperation’ shown by the State party concerning 34 other cases of forcibly disappeared persons in Thailand pending with the Working Group. To the knowledge of the ALRC, no additional information has been given regarding any of those persons. On the same occasion the Prime Minister expressed resentment at the interest of United Nations agencies in the situation of human rights in Thailand, which is ironic given his backing of former Minister of Foreign Affairs Mr Surakiart Sathirathai in his bid to become UN Secretary General. Mr Surakiart has for his part been reported recently as having criticised domestic media for shining too negative a light on the country. Meanwhile, the case of Mr Somchai has also been taken up by the Organisation of Islamic Conference, which sent a delegation to visit the south of Thailand in June.
39. At the same time as Mr Somchai’s case was being taken up in United Nations fora, Mrs Angkhana received warnings about speaking out on her husband’s disappearance. In early April, an unidentified man came to her house and advised her against high-profile advocacy, such as going on television or making other public statements. On April 18, she allegedly received a telephone call from a man whose voice she recognised as being that of a government intelligence officer, who asked about her interventions in the United Nations. Upon receiving this information, the AHRC made an urgent appeal for witness protection to the Minister of Justice, and was gratified to learn that on April 20 the Director of the Department of Rights and Liberties Protection had ordered his staff to visit Mrs Angkhana and make the necessary arrangements. Notwithstanding, the ALRC is not aware of any efforts undertaken to identify the source or sources of these threats against Mrs Angkhana, and the security of her and her children is an abiding concern.
40. The case of Mr Somchai Neelaphaijit is critical to the development of an effective human rights regime in Thailand because in it the nexus between cases of heinous torture, forced disappearances and extrajudicial killings is explicit. It is an exemplary failure of state agencies under pressure-even under intense pressure-to address the impunity that prevails in the country. That five police officers are facing relatively minor criminal proceedings in connection with Mr Somchai’s disappearance now seems to be considered a satisfactory conclusion for the State party. It is not.
41. In the disappearance of Mr Somchai is the disappearance of uncounted numbers of persons across the country. Concern over forced disappearances in Thailand is rightly directed towards the missing in the south. The Chairperson of the National Reconciliation Commission, former Prime Minister Mr Anand Panyarachun, has reportedly said that the number of missing persons there is greater than he had imagined. Local religious leaders in March told a government representative that around 50 persons had been abducted in recent months after interrogations by local security officials. Unconfirmed allegations have emerged that abducted persons may even have been dropped from helicopters. At least one senior military officer has tacitly acknowledged that the army has been behind disappearances by informing an audience at a seminar in the south that the abductions would be brought to a halt. However, while the situation in the south deserves special attention, it should be understood that the incidence of disappearances is a nationwide problem for Thailand. The Central Institute of Forensic Science alone receives some 200 bodies annually from other parts of the country that it cannot identify; its staff has estimated that perhaps 1000 persons go missing each year in ‘ordinary’ parts of the country. Evidence suggests foul play in many cases, but the Institute, like other agencies, is unable to further their investigations without police assistance. Hence the need for the establishment of a missing-persons centre outside of police control.
42. The State party has also failed to take action to address the pattern of killings of human rights activists and environmentalists in the country, which as in the disappearance of Mr Somchai is indicative of the impunity enjoyed by perpetrators of gross human rights abuses in Thailand. Again in his 2005 report, the Special Rapporteur on extrajudicial, summary or arbitrary executions stated:
In most situations, the isolated killing of individuals will constitute a simple crime and not give rise to any governmental responsibility. But once a pattern becomes clear in which the response of the Government is clearly inadequate, its responsibility under international human rights law becomes applicable. Through its inaction the Government confers a degree of impunity upon the killers. [E/CN.4/2005/7, 22 December 2004, para. 72]
43. On June 17, Buddhist monk Phra Supoj Suwagano was the latest environmentalist to be killed in the face of government inaction, apparently as a result of his efforts to protect local natural resources. Phra Supoj had been involved in a foundation conserving hundreds of acres of forestland that was under threat from local influential developers known to have connections to senior political figures. Phra Supoj and other monks working with him had in the past been threatened over their conservation efforts. On at least one occasion they tried unsuccessfully to lodge a complaint with the police.
44. There are now strong demands to arrest and prosecute the killers of Phra Supoj not only to afford some justice to him but also to protect others involved in the struggle. Another senior monk in the environmental foundation is under police protection. However, there are grave fears that those behind the killing will not be arrested, and already there are indications coming from the investigating police that they wish to close the matter as a simple manslaughter or murder due to a conflict with local residents who had been cutting some bamboo. Under the circumstances, this is the least likely explanation for the killing.
45. The hands of influential persons can be seen both in the murder of Phra Supoj itself and in subsequent events. At the end of June it was reported that police who had said they had made ‘remarkable progress’ in investigating the case had not even spoken to the monk’s parents or close associates. Then on the night of July 4 the house of a key witness was burnt down. Its owner, Mrs Khum Laowan, was the groundkeeper at the monastery who first discovered the monk’s body. Mrs Khum had been staying at friends’ houses since shortly after the killing and was not present when the house was razed. She has alleged that police officers from Fang District Police Station had started coming to her house at midnight, after which they would take her for questioning at the station and return her only in the morning, therefore she moved out. For their part, the police were said to have concluded that the house was accidentally burnt down. It is not known as to whether or not Mrs Khum has been offered or received witness protection through the Department of Rights and Liberties Protection, or whether the destruction of her house has been investigated by any outside agencies.
46. On June 20, the Minister of Justice ordered the Department of Special Investigation to investigate the murder. The transfer of the case to the DSI should give rise to hope among victims and their families that it will be taken seriously. However, the failure of the DSI to address other similar cases properly, such as that of Mr Charoen Wat-aksorn (para 8[ii]) has caused grave doubts over its ability to investigate.
47. The killing of Phra Supoj also followed an attempt on the life of a journalist in Phang Nga province on July 1, who was shot while driving home. Mr Manop Rattanacharungporn, a writer for the prominent Matichon daily, had accused local influential persons of illegally grabbing land after the tsunami. The Minister of Justice has also reportedly ordered the DSI to investigate this case.
48. The pattern of attacks on environmentalists, journalists, human rights defenders and persons opposing ‘development’ projects in Thailand persists in large part because of the sums of money involved and the enormous corruption that is widely recognised as a feature of governance and policing there. Two reports released by academics in May, for instance, estimated that police annually pocket illegal earnings of up to 31 billion Thai baht (US5 million), and that police superintendents in Bangkok could earn 300,000 to one million Thai baht per month (US00-25,000). The earnings of ‘influential persons’ who use the police to secure their interests are presumably far higher. With huge sums of money involved, and with growing contests over scarce resources, the scale of the risks associated with threatening or killing opponents becomes smaller. This aspect of the problem must be recognised and directly addressed by the State party if the pattern of killings is to be stopped. Although at the end of March senior police for the first time publicly admitted that the police force is corrupt from top to bottom, the suggestions to address it included honesty and ‘a service-minded attitude’. Clearly, a more realistic approach will need to be taken by the agencies concerned if the issue is to be addressed. The Government of Thailand also needs to take a stand against these killings. To the knowledge of the AHRC, at no time has the Prime Minister or another senior figure spoken on this pattern of murders and committed the government to bringing them to an end.
49. While police in Chiang Mai were searching for a way to make the apparent murder of Phra Supoj into manslaughter, others in Nonthaburi province investigating the case of Mr Sunthorn Wongdao were stretching the imagination even further by turning homicide into suicide. Mr Sunthorn was found dead in Bang Yai district, Nonthaburi, on May 21. He is said to have hidden in a house after being accused of shooting his wife and father-in-law in Bang Khunthien district, Bangkok. Police from that district claim that after they surrounded the house, Mr Sunthorn committed suicide rather than surrender. But the brother of the victim challenged that version of events and said that he believes that the police killed the man. Investigators from the Central Institute of Forensic Science have supported the view that the death was not suicide. According to them, neither the condition of the victim’s body nor the crime scene suggested a suicide. In fact, the victim had four bullets through a lung and one through his head. The gunshot wounds appeared to have been fired by another person at close range. Furthermore, the crime scene had allegedly been tampered with. The body of the victim seemed to have been turned over, and evidence organised to suggest a suicide. Despite this, the police concerned have reportedly continued to insist that it was a suicide and prepared an extensive report to this end. The brother of the victim has since expressed concerns that his life is also in danger, as he has campaigned for justice. It is not known as to whether or not he has obtained witness protection. Five officers have also had the audacity to lodge a defamation complaint against a forensic scientist and senior bureaucrat who spoke on the case, which is discussed further in reference to article 19 (para. 62). The ‘suicide’ of Mr Sunthorn, it should be added, followed another case where police similarly concluded that a man with two bullets in his head, Mr Sompong Charoenkrongsakul, had killed himself. However, as that case occurred outside the jurisdiction of the Central Institute of Forensic Science it has not been thoroughly investigated. To the knowledge of the ALRC, neither case has been transferred to the Department of Special Investigation.
50. These deaths expose some of the deep contradictions in Thailand’s criminal justice system. Whether these victims died as a result of homicide or suicide should be for the courts to decide. But to get the matter before a judge, it must go through the police. If the police lodge a report of suicide rather than murder, at most the prosecutor can ask for a reinvestigation. As the ALRC has already observed, this is a grave defect in how criminal investigations are conducted in Thailand. The power enjoyed by the Thai police in pursuing or neglecting cases is an enormous barrier to the exercise of basic criminal justice. In fact, this power completely subverts the whole judicial process.
51. Particularly where police themselves are suspected of being killers, it is essential that inquiries be conducted impartially and thoroughly. Hence the need for a properly functioning Department of Special Investigation, and an independent agency to pursue specific complaints against the police. The very fact that the brother of Mr Sunthorn complained that the police were responsible for his death should create a greater burden on higher authorities to ensure transparency in investigations, let alone in view of the forensic experts weighing heavily against the police version of a story. At present, there are no institutional arrangements in Thailand to ensure that this is the case, and hence it is impossible for the State party to assert that it has the means with which to comply with its obligations under article 6.
Article 7: Freedom from torture
52. Torture continues to be practiced routinely by the police in Thailand. The ALRC has already noted that the reasons for this are in part that no law exists to proscribe torture and prescribe penalties; no procedures exist to investigate acts of torture, or for quick judicial or medical intervention where sufficient cause exists to suspect that a person has been tortured.
53. In its report to the Committee, the ALRC noted that particularly gruesome types of torture, including electrocution of genitals, are used by Thai police officers in ordinary criminal cases. In May, it heard of another case of electrocution of a detainee’s genitals, a summary of which follows.
i. Mr Urai Srineh, a 44-year-old security guard, was allegedly illegally detained and brutally tortured by officers of the Chonburi Provincial Police Station in May 2005. Mr Urai was at home with his family around 6pm on May 24 when five men in plain clothes came into his house, identified themselves as police officers and told Mr Urai to go with them. They did not offer a warrant or give a reason for their actions. When Mr Urai protested, they are alleged to have said that, “The police don’t do anything carelessly.” Within three minutes Mr Urai was removed from his house before the eyes of his wife and children. He was placed in a car and blindfolded and handcuffed, after which he was driven for about two hours.
ii. Mr Urai was then taken into a room, still blindfolded, and told to confess to the killing of six Cambodian migrant workers and injuring of four others at the Para Eastern Industry Company Ltd in Klaeng District, Rayong Province on May 7. When Mr Urai strongly maintained his innocence, the police electrocuted his testicles and groin repeatedly over a period estimated to be around four hours. When he was electrocuted, Mr Urai’s body contracted and there were spasms of pain. He was also beaten on his body with a stick. However, Mr Urai constantly insisted on his innocence and the police brought another accused, Mr Prakard Boontha, to the room. When Mr Prakard saw the victim, he told the police that Mr Urai was not involved in the murder. The police then took the victim out of the premises after a one-hour interrogation. It was around 2am on May 25. When he was taken out, Mr Urai saw that he was leaving the Chonburi Provincial Police Station. At about 5am he was dropped nearby his house.
iii. After reaching his house, Mr Urai was taken to the Klaeng District Hospital and then transferred to the Rayong Provincial Hospital due to the severity of his injuries. He was found to be suffering burn marks on his groin, swollen testicles, an injury on his left toe and bruised wrists due to the use of handcuffs. He was unable to urinate. He was experiencing numbness in his lower body and lung and kidney problems. According to doctors who have examined him, the injuries are serious and may result in lasting damage.
iv. While Mr Urai was at the hospital, some police officers led by the investigating officer in charge of the murder case, Police Major Manop Prasart of Klaeng District Police Station, came to visit him and offered a sum of the money if he would not report them. The victim reportedly accepted the money to pay his medical bills and avoid further trouble. After that he moved to another location for reasons of personal safety.
v. According to media reports, the commander of Regional Police Bureau 2 Police Lieutenant-General Jongrak Juthanont has stated that he would ensure justice for the victim. However, it is not known what action, if any, he has taken. The fate of the other accused is also unknown.
54. The case of Mr Urai speaks to a number of features common to torture cases in Thailand, which the ALRC pointed to in its report to the Committee. These include that torture is routinely used in ordinary criminal cases, and that the type of torture inflicted is often extreme. The injuries suffered are very serious and can have permanent effects both physically and psychologically. The pattern of very harsh torture in Thai police stations suggests a mentality among officers that extremely cruel and barbaric treatment of persons in custody is acceptable. The ALRC and AHRC have in the past month distributed a survey asking ‘Why do Thai police electrocute the genitals of persons in their custody?’ An artist’s depiction of the genital electrocution of one torture victim in Thailand was used for a poster released by the AHRC to commemorate the annual International Day in Support of Victims of Torture 2005.
55. Torture is easily committed in Thailand in part because of the extended periods of detention available to the police. As discussed by the ALRC in its report to the Committee, the police can hold suspects initially for 48 hours without charge. They can extend that period for seven days at a time over seven successive times with approval from the courts. Only once a confession is extracted and the police lodge charges is the person transferred to prison to await trial, or released on bail. Prolonged detention is a systemic cause of routine torture. Torture cannot be eliminated without strict limits being placed on the periods that are allowed for detention outside prisons, particularly immediately after arrest.
56. A number of cases in the ALRC report to the Committee speak to this point, as does the case of Mr Chuchart Somjit, who was tortured and held in detention by police in Bangkok. According to recent reports, 43-year-old Mr Chuchart met with the Minister of Justice on April 4 to complain that he was arrested, tortured and illegally detained by seven officers of the Don Muang District Police Station in July 2004 on allegations of possessing illegal drugs. Mr Chuchart has said that he was handcuffed, stripped naked, suffocated with a plastic bag and beaten over many hours, particularly on his ribs and genitals, after which he lost consciousness. He was finally forced to sign a confession. Although his mother lodged a complaint with the police station, he was not released and his father was threatened over the complaint. After nine months he was found not guilty and released from prison. Staff at the Central Institute of Forensic Science reportedly examined Mr Chuchart and confirmed that he had been tortured. It is understood that the Minister of Justice had advised Mr Chuchart that he could claim compensation for physical and mental rehabilitation and lost earnings; however, it is not known as to whether or not any action has been taken to identify and prosecute the alleged perpetrators.
57. It is evident that even where torture cases are taken directly to the Minister of Justice, perpetrators in Thailand have little fear of repercussions. As has been established, not only is the use of torture treated as normal among low-ranked officers, it is also tacitly or openly condoned by their superiors. The perpetrators rarely bother to conceal their crimes or hide their identities. At worst, they may face internal disciplinary proceedings; none have been charged or prosecuted for the offence to the knowledge of the ALRC. In the case of Mr Ekkawat Srimanta (para. 8[iii]), according to information received by the AHRC in May, six officers from two police stations have been removed from duty because of his torture, namely:
i. Pol. Lt-Col. Suebsak Pinsang, formerly of Phra Nakhon Si Ayutthaya Police Station
ii. Pol. Sgt-Maj. Winai Kampang, formerly of Phra Nakhon Si Ayutthaya Police Station
iii. Pol. Snr Sgt-Maj. Wichai Kernumnuay, formerly of Uthai Police Station
iv. Pol. Snr Sgt-Maj. Panya Enon, formerly of Uthai Police Station
v. Pol. Cpl Pitak Chamcharas, formerly of Uthai Police Station
vi. Pol. Sgt Wasan Mingkwan, formerly of Uthai Police Station
58. However, even in a case such as this that attracted a very large amount of media attention, the police have not, to the knowledge of the ALRC, been prosecuted. Furthermore, no action has been taken against the police station superintendents and deputy superintendents.
59. That senior officers are ultimately responsible for these abuses is now being more widely acknowledged. In a lengthy newspaper article on torture by the police in Thailand published in June, one senior officer reportedly admitted that the training received by police falls by the wayside once police are posted at stations and must follow the instructions of their superiors. He also reportedly made the remarkable observation that, “We have more than 200,000 policemen and only about 10 percent of them have done something bad”. That “only” about 10 per cent of police in Thailand, some 20,000 personnel, are considered to have done something bad by a relatively open-minded senior officer itself speaks to the scale of the problem and the underlying mentality that the police in Thailand are a law unto themselves.
60. The ALRC has for some time heard that the Government of Thailand will soon ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. On the occasion of the situation of human rights in Thailand being taken up by the Committee, it earnestly appeals to the government to ratify this important Convention without delay. Ratification will be a progressive and opportune step for the entire society of Thailand. By ratifying the Convention, the government will be initiating a new and important stage in state-society relations, with positive effects for all areas of life in the country. It is also a step that can be taken without delay, as the 1997 Constitution of Thailand already prohibits torture in principle, so the changing of laws and other arrangements to accommodate the Convention can be done later. The ALRC believes that only once the Convention against Torture is ratified will the State party be ready to address its obligations under article 7 of the Covenant properly.
Article 19: Freedom of expression
61. The ALRC has consistently raised concern over the use of outdated criminal defamation laws in Thailand as a means to attack human rights defenders and other persons speaking in the public interest. In its report to the Committee, it has referred to the case of media reform campaigner Ms Supinya Klangnarong, which is at present going to court (ALRC Report para. 96). It also acknowledges that the Committee has taken up this issue with the State party (Issue no. 20, CCPR/C/84/L/THA, 13 April 2005).
62. In May another example of how Thailand’s defamation laws are prone to manipulation and misuse arose in relation to the alleged extrajudicial killing of Mr Sunthorn Wongdao, which police insist was a suicide (para. 49). Five police involved in the case lodged defamation complaints against the Deputy Director of the Central Institute of Forensic Science and the Deputy Permanent Secretary of the Ministry of Justice after the two said on television that it was unlikely that the victim killed himself. A call-up poll run by the broadcaster found that some 92 per cent of respondents agreed with their view. The AHRC has expressed outrage over the defamation complaints to the Minister of Interior and has urged that the police officers be called upon to withdraw them; however, to date they are understood to be pending with the prosecutor.
63. It should be added that this is not the first instance that police have attempted to sue the Deputy Director of the CIFS for defamation because she has spoken out on alleged gross abuses of human rights. She earlier won a similar case over her conclusion that a man in Surat province had died in custody due to torture-including having a plastic bottle burnt on his genitals and being stomped with boots on the groin and chest. To the knowledge of the ALRC, although a court case proceeded against the forensic pathologist for her findings, no criminal prosecutions followed against the accused officers.
64. These defamation complaints speak to the sheer absurdity of this law and its application in Thailand. That police are permitted to refute or ignore the opinions of forensic professionals makes the criminal law nothing more than a bad joke. That they are permitted to threaten scientists with punishment for doing their jobs makes it a monstrosity. Such laws and actions have no place in a modern justice system. The ALRC has repeatedly urged that the Government of Thailand repeal the criminal defamation law and review civil defamation regulations. In May, the Press Council of Thailand urged likewise, pointing out the numerous ways in which the criminal defamation law is used to place unreasonable obligations on the defendant. These include the lodging of multiple complaints in different jurisdictions, the obligation of the defendant to respond to each of the summons issued, and the fact that defendants are fingerprinted and forced to produce bail or be imprisoned.
65. Recent months have also seen an unprecedented level of attacks on community radio stations in Thailand, on spurious allegations of being-in one way or another-illegal. As already indicated by the ALRC, the reason that these stations are ‘illegal’ is that the Government of Thailand has failed to meet its obligations to establish an independent broadcast media regulator as required under the 1997 Constitution (ALRC Report para. 97). The government has deliberately delayed introduction of the regulator in order to buy time and manipulate the constitutional provisions to suit its own purposes. Proposed members of the regulating agencies have on two occasions mostly been persons with close links to senior political figures and mainstream media, inimical to the interests of community radio. The first group selected was thrown out after a court case brought by Ms Supinya and her colleagues. The second group was thrown out this April by a Senate panel that concluded that the selection process had again been rigged.
66. One primary target of the attacks has been Ms Anchalee Paireerak, a former talk-show host at a mainstream radio station who lost her job after exposing corruption, reporting critically on the mass killings in the south and interviewing opposition party figures. After no other mainstream station or production company would hire her, apparently for fear of upsetting powerful political figures, she began working at an independent Bangkok community radio station, FM 92.25. The station soon came under scrutiny and was one of at least seven shut down by the Public Relations Department in May on the disingenuous ground of violating regulations over the maximum height of transmission antennae and broadcast strengths. In June its website was one of two that were shut down by the Ministry of Information and Communication Technology on equally dubious allegations of being improperly registered. On June 24 Ms Anchalee was reported to have said that she is leaving Thailand in fear of her life after police and unidentified men had come looking for her at the station, and as she had received intimidating phone calls. In view of the pattern of killings described under article 6 above, such threats should be taken seriously.
67. ‘Freedom of expression’ defines the ability of a society to talk. A talking society is a democratic society: a society under the rule of law, a society where human rights are respected and protected. A silent society, by contrast, is a society ruled by the fear of causing offence to powerful people, and a society ruled by laws designed to protect personal interests rather than people’s rights. In Thailand, growing attacks on people speaking in the public interest, expressing their determination to be heard, combined with newly proposed regulations to limit the rights to public protest against development projects and in certain places such as highways, are indicative of increasingly authoritarian behaviour. For this reason the Committee must take a strong position with regards to the State party on its article 19 obligations.
Key recommendations
The Asian Legal Resource Centre summarises its key recommendations already made to the Human Rights Committee that the State party
1. Ratify immediately the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and introduce a domestic law to criminalise torture.
2. Introduce a domestic law to criminalise forced disappearance, establish the proposed missing persons-centre under the Ministry of Justice and pay particular attention to resolving the case of Mr Somchai Neelaphaijit.
3. Make available the right to petition directly to the Supreme Court on constitutional rights violations.
4. Ratify the first Optional Protocol to the Covenant to allow complaints of violations to be made direct to the Committee.
5. Create a specialised agency to receive and investigate complaints of serious rights violations against the police and strengthen the role of the Department of Special Investigation.
6. Remove the exclusive power of the police over ordinary criminal investigations, and extend the role of the Attorney General over the same; review criminal investigation procedures to reduce the incidence of gross rights abuses.
7. Strengthen and protect the work of the Central Institute of Forensic Science.
8. Enhance greatly the victim compensation and witness protection schemes.
9. Ensure that there are full and proper judicial inquiries into all cases of murder and extrajudicial killings.
10. Review the current arrangements for statutory detention with a view to reducing the periods of detention and affording better oversight to judicial officers, registered doctors, and lawyers.
11. Abolish criminal defamation and review the existing civil defamation law to bring it into line with international standards.
