THAILAND: Extraordinary legal measures and persistent state failure to secure justice, end impunity, and improve human rights

A written statement submitted by the Asian Legal Resource Centre (ALRC) to the UN Human Rights Council

While the open violence in the streets of Bangkok which marked April and May 2010 has disappeared, the situation of human rights remains at crisis level in Thailand, and this despite the fact that Thailand currently occupies the Presidency of the Human Rights Council. In the aftermath of the violence in 2010, the Asian Legal Resource Centre (ALRC) noted in a submission to the UN Human Rights Council (A/HRC/14/NGO/42, 17 May 2010) that the Emergency Decree on Government Administration in a State of Emergency (2005) (“Emergency Decree”), which was decreed on 7 April 2010 in Bangkok and surrounding provinces and on 13 May 2010 in many provinces in northern and northeastern Thailand, gave the authorities wide-ranging powers to arbitrarily interrogate, detain, and otherwise restrict the rights and liberties of Thai citizens. The ALRC further expressed concern that the use of extraordinary legal measures has consistently been associated with broader patterns of extrajudicial violence in Thailand, such as the Krue Se and Tak Bai massacres in southern Thailand, which took place while martial law was in place.

At this time, the ALRC would like to express concerns relating to the fact that these measures may also make securing justice difficult in the aftermath of violence. In particular, the ALRC has observed two representative cases, in which judicial processes intended to redress rights violations carried out under or in relation to extraordinary measures, have stalled. The first case is the still-ongoing trial concerning the disappearance of Somchai Neelaphaijit, who was disappeared on 12 March 2004. At the time of his disappearance, Somchai Neelaphaijit was bringing a complaint on behalf of five men who were tortured while being detained under martial law in southern Thailand in early January 2004. The second case is the work of the Truth and Reconciliation Commission (TRC), the body appointed by Prime Mininster Abhisit Vejjajiva’s government to investigate the events inApril and May 2010, which took place under the Emergency Decree.

On 12 March 2011, it will be seven years since a group of policemen abducted Somchai Neelaphaijit from a busy Bangkok street. At the time of his disappearance, Somchai was the lawyer for five Muslim men from southern Thailand who had been detained on national security charges and who were bringing a complaint of torture during detention. In the nearly seven years since his disappearance, Somchai’s family has repeatedly tried to bring the perpetrators of his disappearance to justice. At every turn, they have faced obfuscation, difficulty, and threats from unnamed figures against their lives and safety. The latest indication of the continued delays to justice in this case has been the multiple postponements in the reading of the appeal verdict in the case of the five police officers who were prosecuted in connection with his disappearance. As Somchai’s body was never recovered, the police officers were prosecuted for relatively minor crimes and only one out of the five, Pol. Maj. Ngern Thongsuk, was convicted and sentenced to 3 years in jail in January 2006. He appealed the decision and remained out on bail. Yet, one day before the appeal verdict was to be read in September 2010, Pol. Maj. Ngern’s family reported that he had been missing since a mudslide two years before and began legal proceedings to have this formally declared. Under the Thai Criminal Procedure Code (CPC), the accused in a case must be present when a verdict is read. Since September 2010, the Thai Criminal Court has set three dates for the reading of the verdict, and on all three dates, Pol. Maj. Ngern Thongsuk has failed to appear and the verdict has therefore not been read. At this time, the reason for the delay in the reading of the verdict is two-fold. The Criminal Court is slowly making its way through the steps outlined in the CPC that must be taken when a defendant does not appear, including the most recent step of issuing a warrant for his arrest. Simultaneously, in a separate court, the proceedings concerning the alleged missing person case of Pol. Maj. Ngern are ongoing. If Pol. Maj. Ngern is ruled to be a missing person, or if those proceedings are stalled, it is possible that the reading of the appeal verdict in the case of the disappearance of Somchai Neelaphaijit may be delayed for additional months or even years. Since the disappearance of Somchai, and the beginning of their struggle to secure justice in his case, his wife, Angkhana Neelaphaijit, and the rest of the Neelaphaijit family have faced constant harassment and threats to their lives and safety. This intimidation has increased during the period in which they have been waiting for the reading of the appeal verdict, including threatening phone calls and the placement of a large cow bone in front of their home.

During the clashes and the subsequent government crackdown on the protests by the red-shirted members of the United Democratic Front Against Dictatorship (UDD) in April and May 2010, 91 persons were killed and close to 2000 were injured. In July 2010, PM Abhisit Vejjajiva’s government appointed an independent panel, the Truth and Reconciliation Commission (TRC), headed by Dr. Kanit Na Nakorn, the former Attorney General. The TRC’s mandate was to engage in fact-finding, but without engaging in prosecutions or other accountability processes. The limitations to its mandate mean that the TRC is not designed to effectively tackle impunity in reality. Even within the mandate of fact-finding, the TRC has faced significant obstacles since its inception. First, the TRC is attempting to investigate violence largely committed by a regime which remains in power, and which was responsible for its establishment. Second, as critics have pointed out, while the TRC includes several prominent human rights advocates among its nine members, there are no representatives of the UDD, which comprises the largest number of victims of the crackdown. Third, the TRC has been unable to compel Thai state agencies, who either played a significant role in the crackdown or whose work is critical to the TRC’s investigation, to cooperate. Somchai Homla-or, the chair of the TRC’s subcommittee on fact-finding, commented to The New York Times in February 2011 regarding the army and police’s failure to give testimony to the TRC that: “We have sent them many letters and never heard back from them — at all.” The forensic department has similarly not responded to the TRC’s request for it to perform autopsies.

The ALRC raises these two disparate examples of obstacles to securing justice in the aftermath of violence carried out under extraordinary legal measures in order to suggest the need to examine the effects of the persistent use of these measures on the broader context of justice and rights in Thailand. It is no accident that justice has been delayed in the case of the disappearance of Somchai Neelaphaijit and that the TRC is facing obstacles in its attempt to secure accountability in the aftermath of the violence in April and May 2010. What is of primary concern is that there is not one single state institution or process which impedes justice in Thailand; instead, available evidence suggests entrenched use of extraordinary legal measures which both fosters an atmosphere in which rights violations can be committed and redressing those violations is difficult.

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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.