Institute for Justice Reform (IJR), Kanchanaburi Rajabhat University (KRU), Cross Cultural Foundation (CrCF), Union for Civil Liberty (UCL), Police Watch and Innocent International Thailand (IIT) jointly organized a seminar on “Justice System Reform: Torture and Enforced Disappearance Prevention and Suppression Act’ at Kanchanaburi Rajabhat University on 31^st January 2020.   The seminar was participated by nearly 200 persons.  All speakers/resource persons stressed in consent the need to amend the Criminal Procedure Code to include mechanisms to protect safety of the people and to enact another law to specifically prevent and suppress torture and enforced disappearance as at present there is still no law with provisions to allow detention of wrongdoers and prevent illegal extraction of confession.

Dr. Namtaee Meeboonsalang, State Prosecutor for Kanchanaburi Province, clarified from the beginning that torture is not only physical but can be mental as well, such as actions to degrade human dignity and pride.  In international standards, when an arrest is made, the alleged person(s) must be taken to a police station and there must be no torture, no harassment and no forced confession or evidence. To   sue anyone, a state prosecutor needs to have enough firm evidence that could lead to punishment and prevent court from dismissing the case which would result in the wrongdoers could not be sued again.  Slowness in prosecution is better than being unable to punish wrongdoers.  In foreign countries, decision to prosecute or not is made only by state prosecutors who would know about investigation process by inquiry officials from the beginning.

Mr. Somchai Homlaor, a senior human rights lawyer and advisor to Union for Civil Liberty, explained that anyone who study or work with laws must first understand the ‘natural law’ which everyone is born with equal rights, liberty, dignity and independence without discrimination.  In practice, the state needs to enact laws to turn this principle into laws of the land.  There are two broad types of laws – international agreements that a state needs to comply when it is a state party and domestic laws.  There are three international laws related to torture and enforced disappearance – International Covenant on Civil and Political Rights, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and International Convention Against Enforced Disappearance, to comply with. Domestically, the state has to apply the rules of law through the three main state mechanisms – the Legislative, the Administration and the Judiciary.  The Administration is the biggest branch with many laws, human power and financial resources to enforce the rules of law.  A law to prevent and suppress torture and enforced disappearance is thus necessary as firstly Thailand would then comply with the international mechanisms that it is a state party, and secondly torture and enforced disappearance are serious crime committed only by state personnel – the police and military.

Torture and enforced disappearance can occur in Thailand even if the Criminal Procedure Code is in existence because of several factors, including public pressure on the police to quickly arrest wrongdoers, inadequate development of forensic applications and widespread existence of certain crimes, such as those involved narcotic drugs which partially led to target of arrest being made.  Although advance of mass media, especially social media, did result in smaller number of torture and enforced disappearance, they still substantially exist in areas with ‘special laws’, such as in the three Southern provinces bordered to Malaysia and in remote areas where poor and marginalized people can easily become victims.  The Administration did recognize these shortcomings in the system and Ministry of Justice through Department of Rights and Liberty Protection did draft a law of which the Civil Society Sector sees that some contents need to be added, especially to provide more protection to the people.  For instance, existing law allows police to detain persons alleged to commit crimes on drugs anywhere for up to three days even before formal inquiry/investigation begins; this treatment must be removed by the new law.  Another key shortcoming is the non-existence of torture offence and enforced disappearance offence, so charge could not be made on these crimes.  And charges for crimes on attacks or murder could not be made if there is not enough detailed evidence.  This shortcoming clearly occurred in case of disappearance of human rights lawyer Somchai Neelapaijit and human rights defender Porlajee Rakjongjaroen, resulting in wrongdoers who are state personnel could not be rightly prosecuted.

Mr. Surapong Kongjanthuk, a human rights lawyer and Chairman of Cross Cultural Foundation, confirmed the need to have a specific law on torture and enforced disappearance and he warned that anyone could become a victim of torture and enforced disappearance at any time.  Some forms of torture are so cruel, so inhuman, so degrading, that victims wished that they were rather killed than tortured, and wrongdoers did try to torture in ways that did not create physical traces, such as put naked victims in extremely cold air-conditioned room, or dropping water on covered, tied head for a long time, or put victims together with creatures that they extremely feared, for example, to force victims to make a ‘confession’.  Mr. Surapong called on a victim of torture in the southern bordered province, a father of a victim and an uncle of another victim to graphically tell stories of those cruel torture they suffered.  They showed clearly that not only the very victims of torture greatly suffered but their family did greatly suffered too.

For enforced disappearance, 7-8 similar components/factors have been identified, including that state officials involved always came in group, dressed in uniform with armed weapons. The crime was planned in advance with someone in command and victims would be taken without fear of being seen and taken to closed place without being interrupted by anyone.  At present, most wrongdoers who committed torture and/or enforced disappearance are free, make a clear getaway without being punished; many have continued to keep their position of power and commit these two serious crimes again and again.  Thus it is absolutely necessary to have specific law to deal with them and everyone must take part in advocating it.

Police Colonel Virute Siriswadibutr, a former senior police officer and Board Member of the Institute for Justice Reform, pointed out that existence of torture and enforced disappearance is closely connected with the state of democracy in the country as democratic system is government by law; everyone including state personnel without exception, has to abide by the law.  Torture and enforced disappearance committed by state personnel are therefore serious crimes and anti-democratic.

It is a general accepted standard that an alleged person must be treated first as an innocent. To make an arrest, legal procedure must be complied. However, in Thai legal system, arrested persons have to prove their innocence – a requirement that make foreign countries see justice system in Thailand as barbarian.  In foreign countries, it is a duty of officers to take care, protect arrested persons.  In Thailand, when persons, most of whom are poor or marginalized, are arrested, they are seen immediately as wrongdoers even if any proof has not been made. In many cases, junior officers are pressured to arrest someone when a crime was committed even without clear evidence and they became scapegoats. Confession has to be forced out from arrested persons and consequently leads to torture and enforced disappearance.

So a law against torture and enforced disappearance is necessary and other related laws, such as criminal drug laws, also need to be amended.  All kinds of arrest and follow-up actions which are against the rules of law, such as detaining arrested persons anywhere outside of a police station or official place stated by law, in the so-called ‘safe house’, must be done away with.  More technology, especially forensic science, must be used to help prove existence of torture which may not be easily identified physically.  Good will of the administration is key for this new law to be enacted and sincerity of all state functionaries are crucial for it to be effectively implemented.  Justice system should protect ‘good’ officers, such as strict requirements that all actions taken to enforce the laws should be immediately reported to the superior and clearly recorded in details, and officers must show their identity and immediately inform affected persons the charge they are made against.  Citizens can refuse to cooperate with persons who claim to enforce law against them if those persons did not show their identity and inform the charge of their alleged offence.  Another speaker, however, later warned that the people have to be careful if they are going to refuse to cooperate with officers as they can be alleged to commit an offence of disrupting law enforcement and suffer more.

Miss Pornpen Khongkhajornkiat, Director of the Cross Cultural Foundation, explained about works carried out by the foundation to support victims of human rights violation to solve their problems and receive fairness all over the country, specifically in the southern bordered provinces. From experiences, in the first place victims must have liberty to tell their stories and others must have liberty to help them. Listening to victims is a very important foundation for others to be able to really help and heal them. It was recognized from the beginning that just only public health units are not enough to help them and it became clear later that working to help in their local area was not sufficient as there were many victims.  Existing criminal offences in the current laws are not enough, there must be specific law for offences of torture and enforced disappearance.  The process to draft this law started about ten years ago and Thailand is the only country in the world to include criminal offence of torture and enforced disappearance in the same law with also provisions for both prevention and suppression of these serious crimes.  The new law will also require establishment of a committee to provide assistance and healing to victims.  For instance, the committee would help ensure that victims are not only allowed to meet their relatives and independent physicians, but it is a duty of state officials to arrange for these opportunities.  The civil society sector must also participate in the implementation/enforcement of this new law and educate the public about this law in order that the people in general are protected.

One thing that all speakers/resource persons emphasized was the essential need to record every related matter, especially the encounters and investigation/inquiries, not only to be used as evidence, so that wrongdoers would be punished, but also to build up statistics for further actions of improvement in the contents and implementation of this law.

Police General Apichart Srithongsakul, Deputy Commander of Kanchanaburi Provincial Police, who presented at the seminar, broadly agreed with presentations of the resource persons that there must be mechanisms to cross check actions to implement the justice system, but also defend actions by police, claiming that lately arresting someone as scapegoat is now difficult as unless a crime is committed in the eyes of police, they can make an arrest only when they obtain an arrest warrant ordered by a court.  Investigation cannot be based only on confession of the alleged persons, but there must be strong evidence. He insisted from his twenty years working as an inquiry official that there is no torture to force confession.  He also warned that the public should not immediately believe news spread out through social media, but first check with trustworthy agencies.

Speakers/resource persons differed in their opinion when this new law would come into existence from less than two years to about two years and even more than three years.  The process now is that the bill has to be sent to the Government Cabinet for approval again as a resolution and then sent to the parliament for second and third reading.  The difficult passage would be at the Senate House as many senators are police and military officers who are mostly conservative and may weaken contents of the bill if not oppose it.  Also now the Bill is sent to security agencies for consultation which many think that this shows that the administration care for their opinion rather than benefits for the people.  It depends very much then on the present administration, especially the Prime Minister, who appointed these senators in the first place, whether or not he would strongly push for its enactment.  However, it is his responsibility to ensure welfare and safety of all Thai people and Thai government need to answer to international community for its enactment and implementation as it has always promised and now also states in its policy.

At present, as the law is not in existence, any people subject to Thai justice system continue to be at risk of being victims of torture and enforced disappearance. When some officers can commit these serious crimes without being punished, they would do it again and again and see it as their legitimate actions.  So all Thai people must join hands to push for enactment of this new law against torture and enforced disappearance with desirable contents and effective enforcement as soon as possible.