In March 2005, the then-army commander in Thailand, General Pravit Wongsuwan, was asked what disciplinary action would be taken against three generals found liable for the death of 84 innocent civilians on 25 October 2004, six outside the Tak Bai District Police Station and 78 in army trucks that transported over one thousand demonstrators and bystanders from Narathiwat to a camp in neighbouring Pattani. He replied: “There is no disciplinary penalty for those holding the rank of general.”
How true: whether killing protesters or overthrowing governments, Thailand’s generals remain a law unto themselves. Those responsible for the mass killings two years ago, as well as their subordinates, have never been punished. In fact, they have been promoted. Perversely, they have also appeared as prosecution witnesses–when they have felt inclined–against 58 men who have been maliciously pursued by the public prosecutor in court on allegations of having incited the military and police violence that led to the deaths and injuries that day. Meanwhile, a politically-appointed inquiry was used to foil public demands for criminal charges against the perpetrators of the killings.
The director of the Department of Rights and Liberties under the Ministry of Justice recently said that the government is paying out millions in compensation for cases that have been brought into court without evidence. He has called for investigators to do their jobs better and ensure that they have something to base a charge upon before a case is presented to a judge. His comments speak to the grave institutional problems in policing, the prosecution, and laws on evidence in Thailand.
No better example for this exists than in the case of the 58 accused over Tak Bai. Justice has been played for a fool in the Narathiwat courtroom where the public prosecutor has consistently failed to ensure that witnesses appear, and where the chief investigating officer–the former Tak Bai police chief–could not identify even one of the defendants (two of whom have died), or tell what evidence had been brought against them. It is as if the prosecutor and police are between them doing their best to botch the case. And why not botch it? As the men were charged in order to distract attention from the real guilty parties of 25 October 2004 and somehow justify the excessive violence of that day, it doesn’t really matter to the state whether they are found guilty or not. The case has already served its purpose: to ensure that there are no penalties for generals.
It doesn’t have to be like this. Contrary to complaints by public prosecutors and police that they lack money, time and other precious resources with which to perform their jobs more admirably, the main obstacle to the effective handling of criminal cases–against persons of any stature–is the political and administrative will to do it. That was most clearly illustrated by the recent conviction of former police chief Pol. Lt. Gen. Chalor Kerdthes to 20 years in jail over the infamous “Saudi gems” theft case. One of the significant characteristics of that case, which is ongoing, has been that a public prosecutor has been assigned to handle the prosecution full time for over 13 years. Just one competent and determined prosecutor full time on the job has yielded results that stand in stark contrast to countless other cases in the courts of Thailand. Notable among those was the trial of five police in connection with the abduction of human rights lawyer Somchai Neelaphaijit, where the constant rotation of prosecution attorneys would have been comical, but for the predictably disastrous consequences that it had on the case.
In Thailand, as in other countries in Asia, whether or not someone is investigated and prosecuted is a political decision; whether they are investigated and prosecuted well or badly also is a political decision. It is a political decision not in the narrow sense of the word, but in its widest sense: the police and public prosecutor are subject to the whims, demands and influences of one another, soldiers, administrators, businesspeople and mafia figures, in addition to politicians.
It is not surprising, then, that the new interim prime minister, General Surayud Chulanont, has publicly stated that he thinks the charges against the 58 should be dropped. Although welcome, his suggestion neatly avoids the real issues: why were the men were charged in the first place, and how has the case against them been dragged on by police and the public prosecutor for two years without any evidence? This is a question not only for the court in Narathiwat, not only for the south: it is a question for the entire justice system in Thailand. It is a question that lies implicitly in the comments of the Department of Rights and Liberties Protection director, who is left to foot the bill for the thousands of groundless cases brought before the courts annually.
The Asian Human Rights Commission lauds the proposal that the 58 accused in the Tak Bai case be freed from the charges against them. However, this step will not in itself bring justice; it will merely bring to an end a systemic injustice. What more must be done? The government of Thailand must establish an independent judicial inquiry into the killings of 25 October 2004, as it should have done in the first instance, with a view to lodging criminal charges against the persons responsible for the mass casualties of that day: starting with the generals. It should also establish an internal inquiry into the handling of the case against the 58 by the police and prosecution. And it must at last grant the UN Special Rapporteur on extrajudicial killings permission to visit the country and make his assessment: not only in relation to this incident but all alleged extrajudicial killings that have occurred there in recent years.
The problems of Tak Bai . They are deep institutional problems spanning decades, if not centuries. They are problems that relate to the most basic components of policing and prosecution. They are not problems that will be solved by a wave of someone’s hand and the dismissal of a single case. But a concerted effort to find out what really went wrong at Tak Bai and why the victims were put in the dock instead of the perpetrators may go some way not only to giving a different sense of justice to people in the south but also to people in all parts of a country where wrongful charge and prosecution is the norm, not the exception.
