Recent information from Thailand’s troubled southern provinces indicates there has been a decline in incidents of violence in some regions and there have been fewer abductions (enforced disappearances). However, reports of torture and ill treatment of people, particularly detainees, are on the increase.
Whether this is due to a rise in such practices, or simply more reporting of such practices (which are not necessarily on the rise) is open to debate.
What is clear is that this government needs to be more pro-active in addressing the long-festering situation of Thailand’s southern provinces, particularly Pattani, Yala, Narathiwat and parts of Songkhla, with a degree of political wisdom and expeditiousness.
A key challenge is to balance between national security interests and respect for human rights. While some uniformed personnel are heavily influenced by what they perceive to be separatist threats from some quarters, care should be taken to ensure that this perception does not distort the realities for political ends, thus leading to human rights violations and ultimately alienating the many people of the South, who merely want to live in peace and quiet.
A key message is that there can be no justification for violence against innocent civilians, whether committed by uniformed personnel or by non-government armed groups. Crimes are being committed extensively, particularly against civilians, and it is the general local population that suffers most.
The provinces mentioned are currently under a state of emergency, and various laws, particularly Martial Law, the State of Emergency Decree and the Criminal Law including its anti-terrorist provisions, are being used to apprehend people in the name of law and order. Some of the current challenges include the following:
1. The State of Emergency Decree has been interpreted by the authorities as prohibiting for three days any visits by families and lawyers to those who are detained by the authorities. This causes many hardships, especially as globally it is known that those first few days are often the time when torture is committed, and access to outsiders is important not only as a human right but also as a means to prevent possible abuses.
2. There is a peculiarly unjust situation where if a detained person is moved from one detention centre to another, the three-day rule begins again every time the person is moved. In effect, this means that cumulatively, the detained person is prevented from accessing families and lawyers for more than three days, e.g. three days in this centre and an additional three days in another centre.
3. The various emergency laws allow the authorities to detain a person without full access to the courts for (at least) seven days, and even where the detention needs to be reviewed by a court after seven days (as under the State of Emergency Decree), there is no obligation to bring the detained person to the court. Therefore, negative acts could take place during the period of detention without the court being obliged to see the detained person in person. (What other countries would call habeas corpus _ the need to bring the person to the court, particularly to see if he/she is alive and unharmed).
4. A technicality used by some officials is to claim that the detained person is merely ”helping the authorities”, thus not falling into the category of a detained suspect or accused person who has a right of access to the courts for review. This is clearly antithetical to the spirit of Thailand’s Constitution and a key international treaty to which Thailand is party: the International Covenant on Civil and Political Rights, which advocate speedy access to the courts. The international Human Rights Committee vested with the power to monitor implementation of this treaty has already indicated that the preferred period is to ensure that detained persons are taken to court within 48 hours and not longer.
5. While various officials are sensitive to human rights and try to comply with safeguards against abuses, others are less enlightened and create fear and dissatisfaction which ultimately has an impact on the possibilities for peace. Some officials firmly believe that torture is useful to extract information from people. It is important for high-ranking personnel to convey a clear message to those under their command that torture is a violation of human rights and is prohibited absolutely under international law and Thai law. Moreover, torture alienates the general population, thus making the work of law enforcement even more difficult.
The best way to obtain information and ”intelligence” is to nurture a sense of confidence among the public so that the latter will help the authorities, as opposed to the atmosphere of alienation caused by the injustices inflicted by acts of torture.
6. The plight of children _ those under 18 years of age _ has not been addressed adequately to date. Several are kept in detention centres under the emergency laws mentioned and are subject to the emergency courts having jurisdiction under these laws. This contradicts the provisions of the Convention on the Rights of the Child, to which Thailand is a party, which calls for special measures and (civilian) justice systems to deal with children. The latter implies the need to use juvenile courts with specially trained judges to deal with children, the need to divert children from measures tantamount to detention, and the need to ensure that detention is always a measure of last resort. Thailand already has civilian juvenile courts which have the capacity to deal with children accused of crimes, and it is these courts, rather than the mechanisms under the various emergency laws, which should be used in the case of children.
7. Women have been particularly impacted upon by the insecurity of the South. Many who are already poor have become widowed and now have to head their families. While Thai law provides avenues for them to claim compensation, real access to remedies is often slow, and the women may also be afraid of their identity being exposed, resulting in further intimidation. There are also reports that it is now more difficult to access the scholarships which were previously available to help children further their education.
8. The lack of remedies, including judicial remedies, in regard to violations impedes the search for peace, as the injustices that ensue from this situation create a sense of mistrust and frustration. There is a feeling among the local public that there is impunity pervading the system. For instance, in regard to various tragic incidents, particularly the Tak Bai incident where peaceful demonstrators were rounded up and put in various trucks, many dying during the transportation process, the official personnel responsible have merely been moved to other locations, rather than subjected to the usual sanctions associated with the Rule of Law and effective and fair administration of justice.
On another front, although a middle-ranking official has been punished in regard to the case of Somchai Neelaphaijit, a human rights lawyer who disappeared under suspicious circumstances associated with official action, the case has now been taken to the United Nations (UN), since it is felt that the local remedies are inadequate.
9. While it is true that the majority of people in the provinces mentioned are Muslim, the realities suggest that the problems facing the South are of a longstanding socio-cultural-economic-political nature with deep historical roots, rather than a religious issue. For instance, in regard to education, while the UN has already advocated that children learn best through mother-tongue education _ in the case of the South, the Malayu language _ this has yet to be well understood by some of the authorities dealing with security issues. Multi-lingual education, hand in hand with the Thai language, is thus a key to settling some of the grievances of the South.
In sum, five messages deserve emphasis with this country’s new administration:
1. Effective judicial and other remedies are required, in addition to human rights-sensitive prevention programmes, including capacity building and training for law enforcers;
2. Decentralisation of power with broad-based people’s participation is essential;
3. Civilian solutions should be the priority;
4. There should be more cross-cultural programmes to promote inter-community and inter-faith cooperation and understanding, especially from a young age;
5. Even where emergency laws are to be applied, they need to abide by the national Constitution and international human rights standards.
For there can be no peace without justice.
Vitit Muntarbhorn is a Professor of Law at Chulalongkorn University. He has helped the UN in a variety of capacities, including as an expert, consultant and Special Rapporteur. This article is derived from his speech at the Conference on Peace, Human Rights and Thailand’s Southern Provinces, organised by the Cross-Cultural Foundation, in Pattani on March 6, 2008.