The systematic violence in the south is not so surprising. However when it comes on the light, it has made some gravity. The issues of AI report , recent VDO clip, Court decision on Inquest trial of Yapa Kaseng, lawsuit of Students Yala against Army is emerging. We also heard about the move of Democrate Party_leading Govt that they pay attention on re-organising “power” in the south.
First, it said that the special laws that have been used in the south must be reviewed including the extension of Emergency Decree and the Declaration of Martial Law. It’s most likely the ISA 2008 will be the answer. However, ISA 2008 is a problematic Act that will delegate “another” set of state power to Army (by law ISOC head is PM.). ISOC power under this ACT is a little state in Thai State (Administrative power (transferring officials/ order/command officials), some of Judicial power and immunity etc).
Pls see : Crcf.AJ report on
Thailand ISA 2008 and it attempts to apply in southern Thailand (Nov 2008)
On 20 December 2007, the ISA was passed by the National Legislative Assembly, just a few days before the parliamentary elections and in the face of strong opposition from civil society. Under this law, an Internal Security Operations Command (ISOC) will be responsible for implementing the ISA.
On 19 Feb 2008, the ISA was enacted by the King and was notified in the Government Gazette.
Section 1-14 of the ISA is about the administration of ISOC and Section 15- 25 is all about the specific duties of ISOC with respect to the maintenance of internal security.
Under Section 15: it states that ‘threat to national security’ refers to a situation which does not yet require the declaration of a state of emergency under the Emergency Act. The matter of national security has a tendency to persist for a long time and several government authorities have the power and duty or responsibility for dealing with the situation. It implies that the use of ISA in the south requires the termination of Emergency Decree. Also the Cabinet should pass a resolution for ISOC to prevent, suppress, suspend, inhibit and solve or mitigate the situation that affects the internal security.
However, under ISA, the provisions have provided absolute power to ISOC in many ways;
· Broad definition of “National Security” in section 3
· Limited scrutiny by courts
· Role of the military
· Arrest and detention including grounds for arrest and detention in Section
· Judicial supervision and/or plea bargaining process in Section 21
· Place of detention and access to outside world in Section 21
· Definition of Training in Section 21
On 30th of October 2008, Isara News reported that National Security Council (NSC) under Prime Minister Office approved the use of Section 21 in Internal Security Act 2008 for southern security cases;
Ministry of Justice proposed the enforcement of the Emergency Decree on Government Administration in States of Emergency B.E. 2008 and the Internal Security Act B.E. 2551 as an amity law since they contain more flexible clauses than the Penal Code. Also, the laws are more appropriate to unrest in the Southern border provinces where a lack of mutual trust between state and public is predominant.
Lately, it was reported that the National Security Council (NSC) has agreed to the proposal for the application of security laws in lieu of Penal Code on certain matters including the arrest or detention of suspects in security cases in Southern border provinces. It means all detained suspects might not have to always face criminal prosecution. Instead, other channels shall be devised such as those provided for by Section 21 of the Internal Security Act and other possibility whereby the suspects are allowed to turn themselves in order to waive criminal prosecution. It will be something similar to leniency and pardon given to communist party’s members through the 66/23 policy to win over the communist factions.
Section 21 of the Internal Security Act goes “In the designated area where the ISOC is authorized by the cabinet to operate, should be there any persons who have committed an offence related to national security as per the criteria set forth by the cabinet, and should the persons change their mind and turn themselves in to the officers, or in the case that after investigation, the inquiry officers are convinced that the persons have committed the act out of wrong belief or a lack of knowledge, the persons shall be given a chance to change their behavior. Such an approach shall benefit efforts to uphold national security. In such a case, the inquiry officers can submit the inquiry reports together with their comments to the director (of training facility).
Should the director agree with the suggestions of the inquiry officers, the inquiry reports and plus the opinion of the director shall be submitted to the Court. If deemed fit by the Court, the public prosecutor may request the Court to order the alleged offenders to be taken for training courses organized by the director at the designated place and time, but not more than six months as well as to abide by other instructions made by the Court.
The implementation of subsection two can be carried out only based on the willingness of the alleged offenders to participate in the training and to abide by relevant conditions.
After the alleged offenders have completed the training and acted in compliance with the conditions set forth by the Court, the right to criminalize the alleged offenders shall cease.”
The source from MOJ states that consultation has been made with the Fourth Army Area Commander and NSC, and it was agreed by all that Section 21 of the Internal Security Act can be applied to show leniency instead of using the Penal Code for certain security cases. As a result, some suspects shall not face normal justice system, but by the court order, they shall be required to go for training.
“The methods used in the training shall be different from the indoctrinating ones used in the past. It is impossible to completely change people’s mindset in just 20-30 days. But we shall allow them to raise the issues upfront, i.e., what issues they want to see addressed in their localities, what their suggestions are toward peace building in the Deep South, etc. This is part of the tactic to bring the simmering underground political rifts to the surface.”
“Many agencies have been hinging on this method. The challenge is the insurgent groups know that should we be able to bring the issues to the table, they will lose. Thus, everyday they stick to their tactics to abet fear including committing daily assassination. They attempt to prevent us from exploiting political tools such as the 66/23 policy and other peaceful methods. I believe that Section 21 can help us to solve the problem.“
The same source reiterates that principally, the aim of the method is to bring all the issues including political issues to the table. It is not really an attempt to negotiate. It simply aims at gathering the information and analyzing it in order to know what the real suggestions local people have toward peace building are and to devise a standard response.
In the next move, NSC and MOJ shall propose the idea to the Prime Minister and the cabinet for approval and then the policy shall be developed and implemented. It is important to make sure that officer at all levels understand the implication of this policy and that Thai people in other 73 provinces are convinced that such a method can help to restore sustainable peace in the Deep South.”
CrCF. AJ together with its partners has organized already two closed door legal seminars on ISA 2008 and protection of HR in Southern Thailand. The 1st closed door discussion was held on 2 June 2008 at Thammasat University with some law professors including representative of ISOC office in Bangkok and the 2nd closed door discussion was held on 11 July 2008 at CS Pattani Hotel in Pattani Province. The 2nd closed door meeting was attended by a number of related officials including representative of NSC from Bangkok, ISOC Region 4th , Police(s), representatives of provincial governors and member of civil society in the south. The summaries of the talking points at two meetings are available in Thai language at Crcf.AJ.
On 22 Nov 2008, CrCF.AJ together with Institute on Peace studies of Prince Songkla-Nakarin University, Hadyai Campus will organize the 3rd Legal Seminar on ISA 2008 and protection of HR in Southern Thailand. The meeting will be organized at Room 201, Fl. 2, Rector Building, Prince Songkla-Nakarin University, Hadyai Campus at 8.30-12.00 am. The aims are;
· To exchange views on situation in the south and the existing rule of laws issues and problems in order to solve the conflict in the south
· To review the understanding of the use of ISA 2008 especially Section 21
· To examine the suggestion and measures to protect rights and liberties of the peoples in the Deep South and the principle of rule of laws while enforcing the ISA 2008.