The Provincial Court of Narathiwath referred the case of Imam Yapha Kaseng

Muslim Attorney Center and Cross Cultural Foundation Public Statement The Provincial Court of Narathiwath referred the case of Imam Yapha Kaseng to the Military Court claiming it is out of its jurisdiction

Today at 09.00 am on 2 September 2010, the Provincial Court of Narathiwath delivered an order after the preliminary hearing in the Black Case no. 1611/2552 between Ms. Nima Kaseng (plaintiff) vs. Col. Wicha Phoothing, 1^st defendant, Sub.Lt. Sirikhet Wanichbamrung, 2^nd defendant,  Sgt.Maj.1 Rerngnarong Buangam, 3^rd defendant,  Sgt. Narongrit Harnwet, 4^th defendant, Sgt. Bandit Thinsook, 5^th defendant,  and Pol. Col. Thanongsak Wangsupha, 6^th defendant , on charges regarding coercing another person to do or refrain from doing something or to concede to a demand, detention or confinement of a person, malfeasance or corrupt practice by officials, and participating in committing injuries which has led to death of a person as a result of torture or an act of cruelty. 

The order divided into two parts. First, the Court dismissed all charges against the 6^th defendant, a police officer.  The defendant was accused of bringing Mr. Yapha Kaseng and others to hold a press conference, the act of which could violate regulations of the Royal Thai Police and infringe on the rights and liberties of people as protected by the Constitution. The dismissal was based on the reasons that the regulations are not a law and the Constitution provides no penalties on the breaches, therefore, the provisions are not applicable to the 6^th defendant. That the 6^th defendant allowed the military official to use the truck belonging to the Royal Thai Police for holding in custody Mr. Yapha Kaseng, the deceased and others in the compound of the Taskforce 39, was simply resulted from the execution of the military order invoking Martial Law. 

Second, the Court dismissed the case against the 1^st to the 5^th defendants, all of whom are military officials, because the cases fall under jurisdiction of the Military Court. Therefore, the Provincial Court of Narathiwath decided to dismiss the cases and stated that should the plaintiff want to litigate against the 1^st to the 5^th defendants, she has to file the cases with the Military Court with jurisdiction. In the plaints, she shall state that the cases had been filed with the Court of Justice and the Court decided against considering the cases. Also, the plaints should be attached with a copy of the Court’s order and the hearing report annexed to the order. 

The plaintiff does respect the order of the Provincial Court of Narathiwat, but decided to appeal the order with the Court of Appeal. 

The case is the first of its kind in the Southern border provinces that a victim decided to hold government officials accountable for human rights violation through the justice process. It was alleged that the officials were involved in torturing while holding the person in custody in order to force him to confess to a charge or to obtain any information from him. And as a result of the torture, the person has died. Such an act is a crime under the Penal Code and a breach of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) as it construes unacceptable grave human rights violation. According to the order of the Provincial Court of Narathiwath, should the plaintiff want to sue the 1^st to the 5^th defendants, she has to pursue it with the Military Court with jurisdiction. But the plaintiff is aware that without legal standing, a civilian is not able to bring a case directly to the Military Court since it requires that the case has to be prepared by the inquiry officials and prosecuted by the public prosecutors. Meanwhile, the inquiry officials have completed its investigation in this case and submitted the inquiry report to the Office of the National Anti-Corruption Commission (NACC) for further investigation. As of now, there has been no sign as to when the NACC shall complete its investigation and to proceed by submitting its report to the public prosecutor for further prosecution in the Military Court. The process has taken place for a long time, and it shows signs of grave delay. It sounds similar to a saying that goes “justice delayed is justice denied”. 

The Court ruled that the brining of Mr. Yapha Kaseng and others to the press conference was an act against the regulations of the Royal Thai Police and against the protection of freedom and liberties as provided for by the Constitution. But furthermore, the Court deemed that the regulations are not a law and that the Constitution provides no punitive measures, and thus the provisions are not applicable to the 6^th defendant.  The plaintiff decided to appeal against the order of the Provincial Court of Narathiwath since the Constitution is the supreme law of the State and no provisions of any law, rule or regulation, which are contrary to or inconsistent with this Constitution, shall be enforceable. Also, in a criminal case, the principle of presumed innocence has to be held on to. And implicitly and explicitly, the constitutional clauses concerning rights and liberties are applicable to either the Court or the state agencies in any issuance of regulation, its enforcement and its interpretation. In the plaints, the plaintiff alleged that that the 6^th defendant brought Mr. Yapha Kaseng and others, who were just suspects, to be present at the press conference, was an act in breach of the regulations of the Royal Thai Police and the Constitution, which is the supreme law of the State. Therefore, the 6^th defendant could be held liable for its abuse of power and provisions in the Penal Code specify clearly the possible penalties against him. 

Therefore, the plaintiff by Mr. Yapha Kaseng’s wife shall pursue with her legal rights in the justice process through to the end. 

Background information

The Provincial Court of Narathiwat has conducted a post mortem hearing of Mr. Yapha Kaseng as required by Section 150 of the Criminal Procedure Code in the Black Case no. Or Chor 9/2551 and ordered on 25 December 2008 that the deceased person was Mr. Yapha Kaseng, and he died at Narathiwat Taskforce 39 located in Wat Suan Tham, Moo 2, Tambon Rueso-ok, Reuso district, Narathiwat, on 21 March 2008 and the cause of death is being physically abused by military officers until the ribs broke and pneumothorax was sustained on his right chest during the time the deceased was held in custody by the military officers who were competent officers. Later on Ms. Nima Kaseng has reported the case to the inquiry officials, but the investigation by inruiry officials was extraordinarily slow, she decided to bring the case herself to the Provincial Court of Narathiwat on 20 August 2008, and it was admitted as the Black Case no. 1611/2552.

For further information, please contact
– Mr. Ratsada Manuratsada, Attorney of Cross Cultural Foundation (CrCF), phone 081-4394938
– Mr. Sitthipong Chantharawirote, Attorney of Muslim Attorney Centre (MAC), phone 089-8731626