<%-- Page Title--%> Human Rights monitor <%-- End Page Title--%>

November 7, 2004 

Thailand

What is the public prosecutor doing now?

Many key questions remain to be answered after the mass killing in the south of Thailand on October 25. Above them all, what is the public prosecutor doing about this case?

Under section 148 of the Criminal Procedure Code of Thailand, when there is a death in custody, the rights of the victim are upheld by way of a post mortem autopsy and investigation into the cause of death. Under section 150, three agencies must be involved: the forensic doctor, investigating officer, and public prosecutor. With the autopsy completed and report submitted, it is then the job of the public prosecutor to approach the court in order that it carry out an inquest, with a view to entering into criminal proceedings if necessary. This process should under no circumstances be delayed, such as by reason of a politically appointed inquiry also being under way. It is the role of the public prosecutor to investigate and prosecute all crimes, including those committed by government officers, without regard to other factors.

After October 25, what has happened? Four doctors from the Forensic Science Institute conducted partial examinations of the 78 victims removed from army trucks, and took samples for further testing. They played a critical part in exposing the scale of the tragedy at a time that the military might have preferred to conceal it. However, full autopsies were not conducted, nor were officials from the police or public prosecutor reported to be present. Questions may then arise as to the consequences of their investigation, and its significance for the role of the public prosecutor.

A commonly held excuse by public prosecutors in many countries in Asia is that where autopsies are botched or police investigations inadequate, they are unable to proceed with the case due to procedural failings or lack of evidence, thereby permitting the perpetrator to escape criminal liability. But this is no excuse. It is the constitutional requirement of a public prosecutor to pursue investigations, obtain the compliance of other necessary agencies, and take the matter into the courts. Failure to do this amounts to failure to do the job altogether. There is no substitute for this role, and under no circumstances should the public prosecutor be obstructed from performing this duty.

So what is the public prosecutor doing in this case? Has an investigation been opened? Have the reports been sought from the forensic doctors? If there is confusion about the procedure relating to the autopsies, have steps been taken to deal with this as quickly and expediently as possible? If there are other agencies opposed to the public prosecutor investigating the case in accordance with the law, how can they be overcome? In short, are the necessary questions being asked to bring criminal proceedings against those persons responsible for the deaths in custody of October 25? It is the job of the public prosecutor to address these questions and to take a leading role in the business of obtaining answers without further delay, and all other government agencies are obliged to admit to that role.

There are many other important questions about the incident that remain unanswered, to which the public prosecutor is beholden to respond. These are not questions for which the people of Thailand, least of all the families of the victims, should be kept waiting. Nor are they questions for which the politically appointed commission of inquiry will easily obtain all the answers. They are questions of basic criminal liability, for which the public prosecutor has the responsibility. They include the following.

Who made the decision to transport the arrested persons to a distant army camp? At the time of making such a large number of arrests, some 1300 in total, the question of where all the people would be held must have arisen. Somebody had the obligation to decide the place and means of detention. How was this decision reached? Where any alternatives discussed, or not? For instance, most of the arrested persons could have had their details recorded from identity cards and been released, with just the suspected ringleaders being held for questioning. That most of the people fortunate to survive were subsequently released without any further consequences speaks to the fact that this could have been done in the first instance. Was this option entertained? Was any other alternative discussed?

The shortage of vehicles is also a key element in the case. The officers in charge should have considered how they were going to transport the large number of detainees before they arrested them.

But even if they had not done so, the military can hire private vehicles at short notice, and under martial law can even take them by force. To find adequate transportation for 1300 people is not a big deal for the army, and under the circumstances, was one of its basic duties. Why was this not done? The explanation that there were simply not enough vehicles available is as shocking as the incident itself.

Can it be accepted that the military, acting on behalf of the government, simply did not think of this before arresting all those people? It is hard to believe that the chain of command was so ineffective that even the most rudimentary discussion on providing transport was absent from communications.

Who decided to stack the people in the trucks one on top of the other? Was it a decision made by one person on the scene, or by an operations command? Who had the authority to give such an order? Even if the procedure for arrests was not thought out properly before hand, the officers in charge should have taken measures to prevent harm coming to the detainees. Were animals loaded in this way, it would be regarded as cruelty to animals; a farmer would take more care of his pigs, lest he harm them on the way to market. However, it does not seem to have been of any concern to those responsible to treat humans in this manner. Did not the truck drivers point out that the people could not live long being piled up like that? Did the soldiers not consider the natural consequences of their actions? Or, as some eyewitnesses have asserted, did they act as they did with expectation that people would die? Perhaps the explanation lies in the most recent concession by the army that some of the victims may already have been dead before being loaded on to the trucks; hence the need to load living people lying down also, in order to conceal the crime.

There must be rational answers to these questions: ordinarily, these are to be found in routine internal records. Do such records exist, and what can they tell of what happened? Have internal inquiries been conducted? After such an operation, military intelligence and other agencies can be expected to investigate immediately, establish the facts clearly, and make reports to the supreme military command and Prime Minister. However, to date the public has been left in the dark.

These questions all speak to serious failures that must be answered through judicial and criminal inquiries. If answers are not forthcoming, it means that the responsible agencies are not asking these questions. So where is the public prosecutor now? Why is it that the persons responsible for these atrocities have not yet been arrested and charged, and proceedings begun in the courts?

Under article 2 of the International Covenant on Civil and Political Rights, to which Thailand is a party, the state has an obligation to provide the victims of rights violations access to effective judicial remedies. After a state signs the covenant, it is expected to be able to guarantee the rights of its citizens through investigating and prosecuting agencies. What does this mean in practice? It means being able to document complaints quickly and thoroughly, go to investigate and collect evidence, and hold responsible those who have violated the rights of the victims in accordance with the law. All of these activities speak to the centrality of the role of the public prosecutor.

Indirectly, they also speak to the role of the National Human Rights Commission (NHRC) of Thailand and other agencies concerned with the implementation of rights in the country. Having spoken out strongly on the October 25 tragedy from the beginning, the NHRC should now direct its attention towards getting criminal proceedings under way.

Concerned senators, civil society groups and others in Thailand should likewise concentrate their efforts on both supporting and pressuring the office of the public prosecutor to this end.

Deaths in custody and extrajudicial killings of any kind are grievous violations of human rights. They go to the heart of the responsibility of the state and its agents to its people. Deaths in custody of such a large number of people as occurred in Thailand this October 25 are not only morally outrageous, they also challenge the very institutions existing to protect and uphold the rights of all persons of the country under both local and international law. It is therefore the primary responsibility of the public prosecutor to ensure that all deaths in custody and extrajudicial killings are fully examined, the perpetrators identified, and held to account for their actions. So what is the public prosecutor doing now?

Source: Asian Human Rights Commission.