Statement: Concerning the 4th Army Commander filing case against Ismaael Teh

Released on 15 February 2018

Statement

The 4th Army Commander filing case against Ismaael Teh, a torture survival

This could be tantamount to a SLAPP case to silence human rights activist,

preventing them from holding the authorities accountable

: Even though the Supreme Administrative Court had ordered the Royal Thai Army

To provide him compensation for unlawful detention and torture in 2016

It has been reported that on 14 February 2018, the 4th Army commander, Lt Gen Piyawat Nakwanich and Director of Internal Security Operations Command (ISOC) Region 4 (ISOC Region 4) has authorized Lt. Col. Setthasit Kaewkumoung, Deputy Head of Legal Affairs of ISOC Region 4 to report to Pol. Lt. Col. Thanad Kamkuan, Deputy Superintendent on Investigation at the Pattani Police Station a case against Mr. Ismaael Teh, founder of Patani Human Rights Organization Network (HAP). Mr. Ismaael  Teh was accused of committing defamation due to his TV interview in which Mr. Ismael Tae recounted his own torture experience while in military custody in Thailand’s Deep South 10 years ago in a program by Thai PBS which was broadcasted on 5 February 2018. He was accused of defaming the 4th Amy Region and ISOC Region 4

On 9 February 2018, a representative of the 4th Army commander Lt Gen Piyawat Nakwanich and ISOC Region 4 had also reported a defamation case against the Manager Online. The media was accused of reporting a story that security forces in the Deep South was involved in torturing suspects in security related case in 2017.

In the Thai PBS TV program “Policy By People” on “Stop torture in custody, there must be a law”, Mr. Ismaael Teh recounted his experience being arrested in Yala. And while he was held in custody at a military barrack in Pattani, he was allegedly tortured by some military officers. And he was also detained longer than what was provided for by law. Later, Mr. Ismael Tae has filed a case with the Administrative Court and on 19 October 2016, the Supreme Administrative Court gave the final ruling confirming that Mr. Ismael Tae had been physically abused by the officers while being held in custody as attested to by evidence including medical records. The Court thus ordered the Royal Thai Army to provide Mr. Ismael Tae the amount of 300,000 baht for compensation and 5,000 baht for medical expense. Despite the verdict of the Court, there has not been any officers being brought to justice.

That Mr. Ismaael Teh has revealed facts that he had been subjected to torture committed by military officers and that he asked for support from the public since he had been unfairly treated by ISOC Region 4, despite the final verdict of the Court to confirm his account, was a legitimate act. He must be able to do so and has not committed a crime as provided for in Section 329 of the Penal Code that;

Section 329 Whoever, in good faith, expresses any opinion or statement:

(1) By way of self-justification or defense, or for the protection of a legitimate interest;…

shall not be guilty of defamation.”

After his release, Mr. Ismaael Teh and his friends who have been victims of torture committed by the officers have founded the Patani Human Rights Organization Network (HAP) to promote and protect human rights in the Deep South. They have been working on documentation about torture, giving assistance to help torture victims to have access to justice and remedies, monitoring the practice of the officers and the authorities, the implementation of which is legitimate in a democracy and in accordance to human rights and the Constitution.

The officers and the authorities, whose mandates are for protection and upholding human rights of every one without discrimination and can be held accountable have reported a case against media, human rights activists or other people who monitor their practice. And such legal action aims to bring to an end such investigation or to stop the dissemination of information and facts concerning the abuse of power by the authorities knowing full well the media and human rights activists or other people have the right to carry out their duties without breaking the law. And in its eventuality, the public prosecutor may decide against indicting the case or the Court may not accept to review the case. Such legal action could be tantamount to a Strategic Litigation Against People Participation (SLAPP) and could be an exercise of power not in good faith.

As to this case, the Cross Cultural Foundation (CrCF) opines that the 4th Army commander or Director of ISOC Region 4 and superior officers should instead order an investigation to bring to justice the officers who had committed torture and held Mr. Ismaael Teh in an unlawful detention as a result of which the Supreme Administrative Court has ordered the Royal Thai Army to provide Mr. Ismael Tae a compensation. Instead of bringing to justice the perpetrators and to impose disciplinary action against them, the authorities have opted to take Mr. Ismaael Teh who is still struggling to find justice to Court. This might give the impression to people in the Deep South that they have to pay a high price in order to attain justice in the Deep South.

While struggling to demand justice, the people who should be treated as claimants and should be served justice, instead they have been treated as defendants and victims in the justice process. As a result, people who have been deprived of the rights might feel discouraged to complain against the authorities and have too much fear to reveal truths to the public while the abusive officers are left to enjoy impunity. Security agencies, in particular the ISOC Region 4 has committed to not tackling the abusive behavior of their officers. They could be viewed as even encouraging their staffers to continue committing such abhorrent offences which are gravely detrimental to the restive Deep South.

The case should prompt us to question the security forces and agencies operating for more than a decade in the Deep South and spending hundreds of billion baht derived from tax money; can they still be trusted and allowed to take the lead to build peace in the Deep South?

CRCF thus calls on the 4th Army commander, Lt Gen Piyawat Nakwanich as Director of the Internal Security Operations Command (ISOC) Region 4 (ISOC Region 4) to review and withdraw the case against Mr.  Ismael Tae and the Manager Online.

Note an excerpt from the Supreme Administrative Court’s verdict

The Songkhla Administrative Court read the verdict of the Supreme Administrative Court in the Black Case no. O55-56/2555 and Red Case no. O1309-1310/2559 between Mr. Ismaal Teh, plaintiff no.1 and Mr. Amizi Manak, plaintiff no. 2 v. The Royal Thai Army, defendant no. 1 in a tor clam case as a result of the exercise of powers by administrative agencies or officers. Former students of Yala Rajabhat University, Mr. Ismael Tae and Mr. Amizi Manak were put into a military custody and while in custody they were allegedly tortured to confess to being involved in a security related case. They were also allegedly held in custody longer than what was permitted by the 1914 Martial Law Act.

The Court orders the Royal Thai Army, defendant no. 1, provide the amounts of 305,000 baht and 200,000 baht as compensation for Mr. Ismael Tae, plaintiff no.1 and Mr. Amizi Manak, plaintiff no. 2, respectively, plus a 7.5% interest per annum incurred since the day the case was filed (14 January 2009), until all the debts are serviced. The detail of the verdict is as the following;

–     Being held in custody longer than what is permitted by the 1914 Martial Law Act: The law only authorizes public officers to hold a person in custody not longer than seven days. But as the two plaintiffs had been deprived of their liberty since 27 January until 4 February 2008, for altogether nine days, it was exceeding the duration permitted by law. Therefore, the defendant no.1 is deemed to have abuse its power which has led to an infringement on the two plaintiffs’ rights and freedoms. The Court deems it fit that the two plaintiffs be compensated for 50,000 baht.

–     The 2007 Constitution’s Section 32 prohibits treatment of a person held in custody as an offender while they have yet to be charged. Since the two individuals were yet to be charged, the treatment against the plaintiffs no. 1 and 2 while they were in custody was found illegal. And by depriving them of their liberty longer than necessary, it demonstrated a complete negligence of the law which has led to an infringement on the rights and freedoms of the plaintiffs. The Court deems it fit to have the two plaintiffs compensated for the amount of 100,000 baht.

–  In the damages claim for the impairment on their reputation and dignity being subject to scorn of their neighbors and fellow students, both plaintiffs demand announcements be published in at least two local newspapers, each for three days in a row or an explanation or a circular be written to various agencies under the Royal Thai Army, defendant no. 1. The Court finds the deprivation of liberty was carried out by officers who had exercised their lawful duties, though their acts have led to an infringement on personal rights of the two plaintiffs. The Court deems it fit that the two plaintiffs be compensated for the amount of 50,000 baht, though dismisses their demand to have announcements published in local newspapers and circulars.

–  As to the discrepancy in the compensation awarded to the two plaintiffs (105,000 baht), it appears that the two plaintiffs were arrested by security forces under the charge of the defendant no. 1. And while they were held in custody, Mr. Ismael Tae, plaintiff no.1 was subjected to physical abuse as attested to by medical records. Therefore, the Court decides to award the plaintiff no.1 for 100,000 baht as compensation and another 5,000 baht as medical expense whereas there was no evidence that the plaintiff no. 2 was subjected to such physical abuse while in custody, therefore, the Court cannot award him such compensation.