Since three special laws have been enforced in the three Southern border provinces including the Martial Law Act B.E.2457 (1914) and the Emergency Decree on Government Administration in States of Emergency B.E. 2548 (2005) covering the provinces of Pattani, Yala and Narathiwat and the Internal Security Act B.E. 2551 (2008) covering the districts of Chana, Thepha, Nathawee, and Sabayoy in Songkhla, almost all of cases related to insurgency are related to the enforcement of special laws.
The special laws have circumscribed many basic human rights and fair trial of the persons held in custody should enjoy including having someone he trusts or his chosen lawyer present during the inquiry, etc. Therefore, the judge needs to be strictly following laws and regulations when taking evidence derived from the enforcement of special laws that the confession and evident retrieved from unlawful act shall not be admissible. The judiciary is the only body to review the power. The following recommendations are therefore concerned with human rights abuse as a result of the enforcement of the special laws and how the roles of the judge should be in order to uphold human dignity, and people’s rights and liberties.
Martial Law Act B.E. 2457 (A.D.1914)
The power to have a person held in custody for not more than seven days according to Section 15 bis intends to provide for the inquiry according to the necessity of the military purpose. But in reality, such detention power has been misused and the person held in custody has been subject to torture and being forced to make confession or to incriminate other persons or to tell where he obtained the firearm used in the insurgency.
When a habeas corpus case is filed with the Court, the Court should exercise its power in full to review the executive power. It should set to adduce evidence to be examined in the Court and arrange for remedies should the torture of the person held in custody did happen as per Section 32 of the 2007 Constitution.
Emergency Decree on Government Administration in States of Emergency B.E. 2548 (A.D.2005)
Sections 11(1) and 12 provide for judicial review. The provisions allow mutatis mutandis the application of the Criminal Procedure Code concerning the issuance of warrants and ISOC Regulation . The two laws can be applied when a warrant is to be issued and when the Court is asked to extend the detention.
1. The issuance of Emergency Decree warrant
1.1 Regarding the evidence submitted by the official seeking the arrest warrant, the Court should call on them to provide the evidence and review the reasons cited for the request for the warrant. It should review if the evidence was derived from an incriminating statement made by another accomplice, or from other sources. It has been found in several cases that after the case has been submitted by the public prosecutor to the Court, the facts concerning the reasons for the arrest differ from those mentioned in the request for the Emergency Decree warrant.
1.2 Measures should be meted out and the officials holding a person in custody should be required to make a report showing the current condition of the person held in custody. The information can then be keyed into the Court’s database and it shall help to prevent issuing the same warrant repeatedly for the same person and helps in terminating the warrant.
2. Extension of the detention
2.1 Concerning the extension of the detention, the Supreme Court’s Regulation on the criteria and procedure concerning the issuance of court writ or criminal warrants B.E. 2548 (2005) should be applied. It should be required that the person held in custody be brought to the Court so that the judge may ask if the person held in custody objects to the extension or not. Currently, the Court held on to paragraph 2, Article 3.7 of ISOC Regulation which does not require the official to bring the person held in custody to the Court.
2.2 Regarding the report made by the official and submitted to the Court, an emphasis should be placed on how efforts have been made to change the attitude of the person held in custody. It has often been found that the official making the report simply cite phrases from Article 3.7 of ISOC Regulation without giving detail.
2.3 The Court should arrange for the review of the termination of the Emergency Decree warrant, since it happens that the official requesting for the warrant has failed to delete the warrant record of a person, even though he has been arrested and released after having gone through the detention invoking the Emergency Decree. As a result, the person may be intercepted in a checkpoint while travelling, and may be barred from traveling abroad. Otherwise, the old warrant is used as a threat to coerce a person to participate in a state project and the person may be promised that the warrant shall be revoked if he cooperates.
The Criminal Procedure Code
1. In reviewing the request for the extension of the detention, the Court should abide by strictly Article 47 and 48 of the Supreme Court’s Regulation, particularly, when the request is for transferring the person to be held custody in another place which is not in a prison. It is necessary to have a hearing of such a request. In security related cases, it happens that the inquiry officials bring the suspect for inquiry at some inquiry center and the suspect is not given the chance to have a chosen lawyer to be present during the inquiry.
2. The practice of video conferencing should be stopped when the Court reviews the request for the extension of the detention. The Court should require that the person held in custody be brought to the Court in person and allowed to say in front of the Court if he objects the detention.
3. The Court should strictly review the taking of evidence since evidence in security cases has often stemmed from the enforcement of special laws. It happens that the evidence derived at the inquiry level is simply hearsay evidence or an incriminating statement made by another accomplice. It may also come from the obscure procedure of asking the alleged offender to identify a person from a photo.
4. The Court should not allow examination in other Court. The amendment of Section 230 of the Criminal Procedure Code has been made to prevent the examination of evidence in another court except when it is really necessary (according to Judge Charan Bhaktithanakul, “necessary” means when the witness is sick or becomes disabled only). It also complies with the Constitution that the Court has to examine the witness at the courtroom and Section 256 of the Criminal Procedure Code has therefore been amended to require that the Court shall pay the necessary and reasonable travelling expenses, allowances and lodging house rent to the witness appearing in court.
5. The Court should give special attention to the review of evidence since at this level the Court may discover who the witnesses of prosecution are, who the eyewitnesses are, etc. In security-related cases, it happens that there have not been many eyewitnesses, but hearsay evidence. The Court should review the circumstance and uses it to consider if a temporary release should be granted to allow the accused to prepare effectively for his defence.
6. In motions submitted to the Court including the habeas corpus complaints, objection to the extension of the detention, preliminary examination of the file of prosecution submitted by the public prosecutor, and the post mortem inquest, the Court should exercise its power more actively to call in oral, material or documentary evidence in order to acquire the fact as much as possible. It will help the Court to deliver the most impartial and factual order especially if the defendant has no legal representation.
The Internal Security Act B.E. 2551 (A.D.2008)
According to Section 21 , the Court should assign the roles in the inquiry of the alleged offenders to various competent officials including the inquiry official, ISOC Director, and public prosecutor and the lawyer should be given a chance to be present during the inquiry. According to the ISA, none of the civil society organizations or the lawyers can take part in the inquiry process and may not help to ensure if the execution of power complies with the rule of law.
• There should be more senior judges or judges with extensive experience to hear security related cases and the number of judges should be in balance with the number of cases. At present, there are over 545 security related cases with 548 persons held in custody in prison and have not been granted temporary release, as of August 2009.
• The Court should be provided with the chance to try to come to terms with basic issues in the Court and to listen to the views of civil society organizations and people, in addition to the views from the state and security agencies.
• The justice process in security related cases should be non-discriminatory, i.e., the public prosecutor should apply the laws strictly equally between the official and people. There have been cases where the officials were able to claim they were engaged with governmental duties and asked to postpone the hearing many times.
• The hearing schedule should be allowed for flexibility and successive hearing. It happens that the hearing can be postponed if the witness of prosecution is not available. The witness may claim he has been transferred to somewhere else, or has to return to his domicile. All the postponements have caused redundancy of the trial. And the accused may have to be subject to prolonged detention.
• The public prosecutors should help to screen the cases. They should be courageous to stop short of prosecuting a case with weak evidence. They should also heed to statistics of cases concerning the charges of being a member of secret society or a member of a criminal association which have often been dismissed by the Court. The statistic showed the high percentage of acquitted cases that prosecuted by public prosecutors at the criminal court (the court of first instance and the appeal court) and the number of weak prosecution files seemed to reaffirm the policy of preventive detention of suspects rather than prosecuting the accused persons with reasonable ground of evidences.
• There should be more public prosecutors to cope with a large number of cases. With insufficient number of public prosecutors, the cases might have to be often postponed.