Director of ICJ Asia Pacific criticises Thai court over Pattani torture case ruling

On 7 September, the Pattani Provincial Court rejected an appeal by Rohima Huseng, who alleged that security officers in Pattani tortured her brother, Hasan Huseng, during interrogation at a detention centre in a military camp in southern Pattani Province.

According to the Muslim Attorney Centre Foundation, the court rejected an appeal to investigate the alleged torture case in Pattani on the grounds that Article 32 of the 2007 Constitution, which states that no person can be arrested and detained without a court order and that torture and brutal punishment are not permitted, can no longer be used to claim a citizen’s basic rights because it is now terminated after the coup d’état.

Hasan Huseng, a suspected insurgent, was captured by Special Taskforce 30 of Narathiwat on 13 April and detained without charge for seven days. The Task Force later handed him to the Interrogation Centre at Inkhayut Military Camp in Pattani, where he was detained for another 20 days.

Although martial law is still in place in Thailand and the emergency decree is still in force in the Deep South, this ruling is seen as a breach of the international conventions on basic human rights to which Thailand is a party.

On 9 October, Prachatai’s Kongpob Areerat interviewed Sam Zarifi, the Asia Pacific Regional Director of the International Commission of Jurists, about his thoughts on the verdict in Hasan’s case and its impacts for Thailand’s judicial system after the 2007 Constitution was abolished.

Sam Zarifi, International Commission of Jurists Asia Pacific Regional Director (file Photo)

Do you think the verdict in the Hasan case was justified?

The ruling doesn’t take into account Thailand’s obligations under international law, especially the International Covenant on Civil and Political Rights (ICCPR), but also the Convention Against Torture (CAT). Both of these conventions make it very clear that there must be a remedy for human right violations and specifically for torture or cruel punishment. The ruling doesn’t refer to those and doesn’t explain what happened to those obligations, which were protected under Article 32 of the 2007 Constitution. It’s a decision that we hope and expect that our colleagues from the Muslim Attorney Centre down south will appeal and we hope that on appeal this issue will be addressed.

Does the verdict imply torture is no longer illegal in Thailand?

No, that court does not have the jurisdiction or the authority to make any such ruling and even if it wanted to, a court in Thailand cannot overturn the country’s international obligations since those conventions have been signed, in case of the ICCPR, and ratified, so the court cannot do that, but it is a problematic case because it involves one particular case which involves allegations of torture and therefore, that individual deserves to be given a remedy. It’s also problematic because the court followed the argument of the military’s lawyer who claimed that with the absence of Article 23 of the 2007 Constitution the case should be dismissed. It is worrisome if this argument is used in other cases, so that’s why we think it’s very important and hope that it will be appealed and addressed.     

Although the 2007 Constitution was torn up, do you think the judge should have done otherwise?

Certainly, the ICJ has issued a brief to the court laying out Thailand’s international obligations; this is called a ‘friend of the court ’ brief and the meekest brief, where we explained that under the international laws that Thailand has accepted there must be a remedy for torture and the judges already know that brief was in the case file, but the judge simply did not refer to that brief on international law. Also, interestingly, the judge did not refer Article Four of the interim constitution, which states that international obligations will be protected, so the judge seems only focused on the military’s response. For that brief moment of time Article 32 was not enforced, but doesn’t seem to have addressed the fact that there is now another basis for the same claim, so certainly as a legal matter the decision could have gone a different way.

Could other laws or conventions be used against torture in this case?

Absolutely, Thailand has an obligation to provide a remedy for torture and to investigate torture or cruel punishments and to provide a remedy in order to provide justice for any such human rights violation. There is no question from the Thai government, including, very recently in their statement in Geneva before the Committee Against Torture (CAT). The Thai government appeared in Geneva before the Committee Against Torture in May of this year and absolutely categorically stated that it would be following this. In fact, at the moment we know that the Ministry of Justice is looking at legislation to implement the Convention Against Torture in Thailand, so this decision really seems to not take into account the stated public policies of the Royal Thai Government. It doesn’t take into account the international obligations and the interim constitution.       

What does it imply about the rule of law after the coup?

Well, I think the imposition of the 1914 Martial Law has been criticized for a 100 years really, because it seems to give the military authority and the ability to operate arbitrarily and to not have complete accountability under the law. The interim constitution to certain extent continues this because the actions of the NCPO are stated to be above the rule of law.

Thai junta always states that they treated the detainees well and denies all torture allegations. What do you think of the junta’s claim?

Well, the most important thing is that allegations of ill treatment should be investigated properly. There have been allegations about ill treatment by detainees; the Thai government has responded and said that these allegations are untrue. I’m not in a position to judge either way, but there must be a credible and transparent investigation of such claims. I certainly hope that all the allegations are not true and that all detainees are being treated well. If that’s the case, it should be very easy to have an open and transparent investigation and everybody will feel better about what’s happening.

 

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