The deputy permanent secretary to the Justice Ministry in Thailand noted on September 27 that the country has been asked by the UN Human Rights Committee to submit further information on the executive decree granting emergency powers to security forces in the south. Tongthong Chandransu was reported as having said that it would benefit Thailand to cooperate with the committee and reply to the UN’s concerns.
In fact the committee, which in July for the first time assessed Thailand’s compliance with the International Covenant on Civil and Political Rights, has sought further information within one year on not just one but three issues: the executive decree; child labour and trafficking; and, arrest and custodial abuse, including torture and extrajudicial killing. The request for the information to be submitted in one year comes under a special procedure for matters of special concern; Thailand’s next full report to this key international rights body is not due until 2009.
Disconcerted about excessive use of force, torture and killing by Thai law-enforcement officers, and the impunity that they enjoy, the committee wrote that Thailand should
“Guarantee in practice unimpeded access to legal counsel and doctors immediately after arrest and during detention. The arrested person should have an opportunity immediately to inform the family about the arrest and the place of detention. Provision should be made for a medical examination at the beginning and end of the detention period. Provision should also be made for prompt and effective remedies to allow detainees to challenge the legality of their detention. Anyone arrested or detained on a criminal charge must be brought promptly before a judge. The state should ensure that all alleged cases of torture, ill-treatment, disproportionate use of force by the police and death in custody are fully and promptly investigated, that those found responsible are brought to justice, and that compensation is provided to the victims or their families.” [CCPR/CO/84/THA, 28 July 2005, para. 15]
In this one paragraph the committee has pointed out much of what needs to be done to end custodial abuses in Thailand.
1. Access to a doctor, lawyer and family: While in principle someone can see a lawyer and a doctor after arrest, in fact most people in Thailand are either unaware of this right, otherwise unable to exercise it, or ignorant of the importance of doing so. It is during the first 48 hours of detention, before the police are obliged to bring the detainee before a judge, that they are most likely to torture and threaten a detainee to plead guilty. This is why the UN has stressed that the right to a lawyer and a doctor from the start must be guaranteed in practice. Many people also are not given the opportunity to contact their families, and are held for extended periods without others having knowledge of their whereabouts or wellbeing. Denied the assistance and advice of loved-ones, they are isolated and have difficulty in exercising other rights. ?lt;br />
2. Medical examinations of detainees: Persons who are taken into custody in Thailand are checked by a doctor only if they go into prison to await trial. A detainee may be tortured by the police during the first few hours after arrest and then held under a series of extensions that can last for up to 84 days. By the time a medical examination takes place, the physical evidence of torture may be lost. Even then, when a person goes into prison the routine examination is not for the purpose of establishing whether or not someone may have been tortured in custody. Therefore, the committee has pointed out that Thailand needs a provision for early and subsequent involvement by a doctor.
3. Ability to challenge detention promptly before a judge: Once in the hands of the Thai police, an arrestee is entirely under their control. Whether or not the case goes to trial depends upon the initial evidence the police bring before the public prosecutor, with which to lay charges in the court. The public prosecutor depends completely upon the material given by the police. So it is no surprise that where the police have authority over all stages of arrest, collection of evidence and the laying of charges there is gross abuse and fabrication of evidence. A staff member at the public prosecutor’s office was heard to liken the agency to a “luk chin” (meatball) factory: whatever meat is given by the police, the public prosecutor grinds it up and rolls it out, without knowing where it comes from or what it really is. And through all of this, the detainee is given no opportunity to question the role of the police or the legality of detention. No avenues exist for complaints against the police or for the judiciary to play a more active role from the start in assessing whether or not a person should be in custody at all and whether or not they may have been abused.
4. Torture and deaths in custody: The impunity enjoyed by the police and other security agencies in Thailand permits the extrajudicial killing and deaths in custody, heinous torture and other gross abuses that are daily a part of their institutional behaviour. In the south of the country, the police, army and other paramilitary agencies are widely accused of operating death squads, and of carrying out mass abductions: a fact tacitly admitted by one officer earlier this year who said that “abductions would stop”. The hope that criminal prosecutions may follow from the mass killings in the south during April and October 2004 has long since faded away, despite a recent report that forensic evidence exists to suggest that many of those killed in April were shot at close range, execution-style. One of the generals responsible for the mass deaths in custody during October was recently promoted, reaffirming an earlier remark of the Thai army commander that “there is no disciplinary penalty for generals”. Police who shoot dead suspects manufacture unbelievable suicide stories, and torturers carry on without fear, as there is no law under which they may be punished, although the government has repeatedly mouthed intent to ratify the UN Convention against Torture. Despite government and police assertions to the contrary, the Asian Human Rights Commission is aware that even those police said to have been suspended from duty for alleged acts of torture are again serving as officers and testifying against their victims in court. The deep institutional tolerance of torture in the police force is tied to the widespread mentality that “bad people deserve bad treatment”. And while the Department of Special Investigation under the Justice Ministry exists as a de facto agency to investigate serious criminal acts by police officers, there is little evidence of success, or a genuine commitment to this area of its work. Even in high-profile cases like the abduction and disappearance of human rights lawyer Somchai Neelaphaijit, allegedly by five police officers, it has been unable to account for his disappearance or shed any light on the true masterminds and culprits.
These are the issues that the UN Human Rights Committee considered of equal gravity to the emergency decree when it exercised a special rule and asked the government of Thailand to reply within one year. To reply does not mean to give an answer that will please the UN and polish the country’s international reputation. To reply means to speak to the issues with earnestness and indicate what, in day-to-day terms can be done to remove these obstacles to the protection of human rights in Thailand. To reply means to speak to what institutional changes can be made, in what way, to bring a greater enjoyment of human rights to all people in the country: that is, to make real the promises of the International Covenant on Civil and Political Rights. This is the spirit in which the government of Thailand should consider and respond to the committee’s observations, in order to be of real benefit both to itself and its people.
