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Immediate released on 3 December 2012
Cross Cultural Foundation (CrCF)
Respect for Right to Justice Process
While enforcing the Internal Security Act in the Deep South
On 30 November 2012, the Thai Prime Minister, Ms. Yingluck Shinawatra, met with her cabinet to approve the extension of the enforcement of Internal Security Act B.E.2551 (ISA) in four districts in Songkhla and Mae Lan district in Pattani for another one year. It is claimed by the government that application of the ISA’s Section 21 and Penal Code shall help to address problems stemming from suspects, both those issued with arrest warrants and those not, running away. By publicizing the opportunity provided for by Section 21, the security forces claim people who have become suspects or are being misled will have another opportunity to ponder. It may help to stem causes of violent acts and may help to contain unrest in the Southern Border Provinces.
The Cross Cultural Foundation (CrCF) is with the opinion that the implementation of ISA’s Section 21 has to be done with transparency and accountability. If any suspects refuse to participate in the training opportunity provided for by Section 21, he or she should be given the chance to prove himself or herself through a normal course of justice. In addition, the person should be accorded with his or her fundamental right to be temporarily released in order that one may make the best attempt to prove one’s innocence. At present, there are at least five persons who have refused to comply with Section 21 and have been prosecuted. None of them has been given the chance to be temporarily released and they have been held in custody pending the trials at either the Central Prison of Songkhla and Natawee Prison in Songkla province.
The ISA is less intense than either the Emergency Decree on Government Administration in States of Emergency and Martial Law enforced in all other areas in the SBPs (except in Mae Lan district, Pattani). Yet, the ISA provisions and regulations provide for special rights of the law enforcement officers, extra from ordinary criminal laws. Section 16 of ISA, for example, stipulates a clause to justify an act of officers that “an act can be committed in order to prevent, suppress, preempt, halt or address a restive event”. Also, according to Section 18, regulations can be issued to restrict fundamental rights of an individual as provided for by the special law. In the past three years of the implementation of ISA in the province of Songkhla and almost two years in Mae Lae district in Pattani, the commission of violence and unrest in the local area where the law is applied has gradually reduced. It could be a reason the cabinet may consider to lift the Emergency Decree and Martial Law in SBPs in future. In addition, it has proven that the application of special laws including the Emergency Decree and Martial Law to address the problems has failed to attest to the ability of the government to uphold public order and to protect people’s lives and properties more effectively than the use of normal criminal laws.
Nevertheless, since the enforcement of ISA has been extended for another year, from 1 December 2012 to 30 November 2013, the state and policy makers should make an attempt to raise public awareness about the laws and to help them understand their rights and duties as provided for by the ISA. Training should also be given to security forces and persons concerned with justice process regarding the enforcement of ISA in order that the officers comprehensively gain understanding of standard practice and the essence and intention of the application of the law. That will help to consolidate actions of relevant agencies and help to prevent any confusion regarding its enforcement among the people. In particular, Section 21 authorizes competent officers of the Internal Security Operations Command (ISOC) to propose in behalf of the ISOC Director to the Court to dispose of any criminal action against an alleged offender who surrenders himself or herself. The officers can also approve no criminal charge by state prosecutors any persons considered to have been misled and committed an offence against ISA if the person agrees to participate in training for up to six months, even though such discretion should be made under judicial review. Until now, only two persons have completed the training as required by Section 21.
The problem may stem from a lack of knowledge and understanding as to how to implement the regulations. It could also be attributed to the selection of personnel, and profiling of a person and a lack of cooperation from civil society which has been working to promote human rights and provide legal aid. They deem that procedural clauses in Section 21 need to be revised to prevent the use of the law that may lead to the infringement of fundamental human rights, particularly the right to justice process. CrCF has the following recommendations;
1) Section 21 of the ISA should only be applied with a person whose commission of the offence is attested to by strong evidence acquired by the officers and that the person has committed such an act out of his or her being misled. In addition, the person must consent to and agree to convert himself or herself and thus voluntarily agree to participate in every single step provided for by Section 21.
2) The implementation of Section 21 has to be done in transparency and accountability and if a person refuse to participate in the training provided for by Section 21 and prefer to present evidence to prove one’s innocence through a normal course of justice, he or she should be allowed to do so and his or her right to temporary release must be respected to given the person a chance to make the best effort to prove his or her innocence.
Doing so will help to make the enforcement of ISA a solution to the problem and to restore confidence of
people in the state policies. That will prompt them to cooperate with the state to bring about peace and
security in the SBPs.
For further study please visit: http://www.deepsouthwatch.org/node/1425
For more information, please contact Ms. Pornpen Khongkachonkiet, 02-6934939