Story by Sorawut Wongsaranon
Cover picture by Kittiya On-in
It has been 10 years since the Abhisit Vejjajiva government dispersed the United Front for Democracy Against Dictatorship (UDD) protests which had been going on for 3 months since March 2010, demanding the dissolution of parliament and a re-election. That is half of the statute of limitations. We want to review the situation, especially progress in the 94 murders stemming from the crackdown involving 84 civilians and 10 officers (cited from The People's Information Centre (PIC) report ‘The April-May 2010 Crackdowns,’ which includes 3 deaths that occurred after the event, but resulting from the crackdown).
We first have to restate that protests in that era were mostly prolonged in an attempt to achieve their demands. The UDD protests started on 12 March. The main masses, other than urban dwellers, included a large number of people from other provinces ready to hunker down and stay for a long time.
On 7 April, the government announced a severe emergency situation so as to exercise authority under the Emergency Decree. The Centre for the Resolution of the Emergency Situation (CRES) was established, with the Deputy Prime Minister for security mattters, Suthep Thaugsuban, as the Director, and Gen Prawit Wongsuwan as the Deputy Director.
The committee members consisted of the Supreme Commander of the Armed Forces, Commanders-in-Chief of all the armed forces, the National Police Chief, permanent secretaries of various ministries, the Attorney-General, etc. All operations in the protest suppression originated here. Many of the personnel who sat in the CRES at that time are currently placed in various positions of power today.
Three days later, the CRES deployed military forces equipped with war weapons to suppress the protest for the first time, under the gentle-sounding operation name of ‘requesting return of the area’ on Ratchadamnoen Road on 10 April, before a second operation equipped with war weapons was deployed under the friendly-sounding name of ‘securing the area’ where soldiers circled the Saladaeng area from 13 May and successfully suppressed the protest on 19 May.
Transferring the case from the police to the DSI – opening a channel without a timeframe
The night of 10 April was an important starting point since it was the first incident to cause a large number of casualties. Next on 16 April, the CRES decided to hand all cases related to the UDD protests to the DSI. Tharit Pengdit was the Director-General of the DSI and part of the CRES at the same time.
This step is very important, because transferring the cases to the DSI became a significant obstacle and has led to the cases of almost 100 murders not going anywhere even today, since the DSI law does not have a time limit for murder investigations as ordinary cases do.
We must understand the legal process first. If there is an unnatural death, including murder or death during detention or medical treatment involving state officials, no matter if they are military personnel, police, Department of Corrections personnel or doctors and nurses, a ‘death examination’ is required, according to Section 150 of the Criminal Procedure Code. This clearly stipulates that the police and public prosecutor must conduct an investigation within a maximum of 247 days, allowing for all possible extensions, before the case is sent to court for a death examination. After the court has ordered a death examination, a criminal prosecution then gets underway.
The process, in summary, is as follows:
- Local police and the Scientific Crime Detection Division collect and examine evidence
- The police, public prosecutor, administrative officials and forensic physicians jointly conduct an autopsy
- The police send the case to the public prosecutor
- The public prosecutor examines the case then requests the court to hold a death examination
- The court examines the death and issues an order on who the dead person is, where the death occurred, cause of death, and who is the perpetrator.
According to Article 150, no matter how long this takes, it cannot take longer than 8 months before reaching the court without the involvement of the DSI. The court’s investigation process may take from 1 month to 2 years, depending on the number of witnesses.
Sergeant Kacharat Niamrod (left) and Sargeant Saruengkarn Tawecheep (right), two soliders who were called by the DSI to testify as witnesses about the events on Rama IV Road.
When a case reaches court, a public trial will be held (even though many times, in cases of the protest suppression, the judge ordered a ban on recordings or did not allow journalists to listen, claiming privacy for military witnesses). The public prosecutor will call witnesses to testify about the incident and present evidence on who the dead person is, and when, where and how they died. The deceased’s family can appoint a lawyer to examine witnesses, ask to look at the prosecutor’s evidence and present additional witnesses and evidence to the court. But when these cases landed in the hands of the DSI, it created a delay, because when the local investigative officers had conducted an autopsy, instead of sending it straight to the prosecutor, the case file had to be returned to the DSI for further investigation. The 2004 DSI Act does not stipulate a timeframe of how many days it must be completed in, so it is not strange that there is barely any news of movement in the cases.
However, the cases of the 91 deaths (official statistics) made some progress for a short while during the administration of PM Yingluck Shinawatra, before power was eventually seized in the coup. As far as Prachatai has been able to investigate, the deaths of 33 people have already been examined in court. After the courts issued investigation orders, the cases were returned to the DSI again to make the criminal case file, then handed to the prosecutor for consideration of whether to prosecute the case as a criminal case (or not).
Results of the examinations of 33 deaths
- In 11 deaths, the courts have issued clear orders that the cause of death was due to the actions of soldiers.
- In 16 deaths, the courts only indicated that the bullets came from the side of the military but do not know the perpetrator (in 3 of these cases, the courts stated where the bullet came from but did not state that this area was already under the control of the military).
- In 6 deaths, the courts did not indicate either the perpetrator or the bullet trajectory
Waiting to learn of progress in the cases from the DSI
After the coup, no progress was seen in these cases for more than 6 years. In May 2020, Prachatai wrote a letter to the DSI requesting to be informed of the progress in the remaining cases of death, asking them what step they had reached at that time. The DSI refused to provide information, claiming confidentiality for the case file. Prachatai then wrote to the Official Information Commission (OIC). The OIC judged that the DSI must provide the information since the request was only for progress, not for information in the case file. On 16 Oct 2020, the DSI responded “All case files on the remaining deaths have already been sent to prosecutors at the Department of Special Litigation” (list of names can be seen below). Additionally, Prachatai wrote to the Office of the Attorney General on 11 Sept 2020 to ask for progress on all the cases and how many cases had been investigated and whether any cases had been criminally prosecuted. As of November 2020, the Attorney General had not replied, other than a telephone call from an official who said that they were in the middle of collecting data from the Department of Special Litigation. In other words, after 6 months spent following the progress of the cases from the 2 agencies, the conclusion is that there is no clear answer.
Civilian courts do not accept cases - military prosecutors do not file charges
There appear to be at least 2 death cases where there has been some progress:
- Phan Khamkong. His family and lawyer filed a lawsuit in the Criminal Court themselves. The Criminal Court and Court of Appeal did not accept it, claiming that it is in the jurisdiction of the Military Courts.
- Kamonked Akhad. The DSI gave an opinion to order a prosecution and passed the case to the military prosecutor. The military prosecutor dismissed the case, claiming a lack of evidence.
At the stage of the death examination, the Courts of Justice think that these two cases have enough evidence to rule that the deaths were due to the firing of war weapons by the military. These are the only two cases which have progressed to the point of criminal prosecutions. Although the prosecutions followed different paths, they ended up at the same point, that is, unable to move forward, and with nobody taking responsibility.
“If it went according to the normal judicial process, it would not be like this. This is not normal, because someone made it not normal. It’s not like how it should be,” Chokchai Angkaew said.
Chokchai Angkaew is one of the lawyers assisting the families of many victims of the crackdown in death examinations. He also acted as the lawyer for Phan Khamkong’s family. Victims’ relatives tried to ask the National Anti-Corruption Commission (NACC), the DSI, and the public prosecutor to press charges against the perpetrators, but eventually it all came to a stop, as if they were being obstructed on every path. In the end, they had to be self-reliant and prosecute the perpetrators themselves.
“We started the lawsuit on Phan Khamkong’s death in September 2019 because the court had issued a clear order on the death examination, saying that the death resulted from actions by military personnel. The evidence was relatively clear, including video clips, witnesses who know the military unit responsible, and the operation commander. We pressed charges against the operation commander for the actions that were the cause of death of Phan Khamkong, but the court issued an order not to accept the case,” Chokchai said.
The lawyer explained that when a lawsuit is filed against soldiers jointly committing an offence against a civilian but without knowing who was responsible, normally the court will accept the case first then investigate if there are any civilians or other related parties that have not yet come to press charges. But when the court issued an order not to accept the case, they appealed. In the end, the Court of Appeal issued a verdict upholding the Court of First Instance. However, he insists that there is still a way to continue the lawsuit, but they may do it at an appropriate time – when we are fully democratic.
Military barricade on Ratchaprarop Road in the afternoon of 14 October 2010
“Before the power seizure, I knew that there were many corpses where they had carried out the death examination, but then it went silent after they took power, such as, Cher’s case (Samaphan Srithep),” Chokchai said.
The NACC dismisses the case against Abhisit-Suthep-Anupong since it came under the Emergency Decree
In the past there have been attempts through other channels. One was the case that the DSI prosecuted against those who issued the orders: Abhisit Vejjajiva and Suthep Thaugsuban. But all three Courts had the same response – dismissed, claiming that the Courts were not authorised to examine the case, as it came under the jurisdiction of the Supreme Court Criminal Division for Persons Holding Political Positions where the investigation authority is with the NACC.
The NACC also resolved to dismiss the complaint against Abhisit, Suthep and Gen Anupong Paochinda, so that there was no offence as accused, because at that time they had proclaimed a severe emergency situation. The Court had also stated that the UDD protests were illegal assemblies and that there were also individuals who used firearms at the protests.
Abhisit Vejjajiwa and Suthep Thaugsuban (left) and Tharit Pengdit, former DSI director (right)
The DSI’s action in prosecuting Abhisit and Suthep at that time caused Tharit, former Director-General of the DSI and three other DSI officers, to be sued by Abhisit and Suthep for the wrongful or bad faith exercise of official duties, with the intention of persecuting others to receive criminal penalties according to Articles 157 and 200. They claimed that the summary case file submitted to prosecute Abhisit and Suthep at that time was a distortion of the facts and intentional persecution of the two of them. Even though the Court of First Instance dismissed the case against Tharit and the DSI officers on the grounds that the evidence had little weight, on 5 March 2020, the Court of Appeal reversed the verdict and sentenced Tharit and the other three officers to 2 years’ imprisonment. This case is not yet finalized and all four have been granted bail to fight the case.
Chokchai spoke about the case the DSI had brought against Suthep and Abhisit. At that time the relatives of the deceased were also co-plaintiffs, but in the end the court gave a verdict of a kind that the DSI investigation was unlawful since it was within the jurisdiction of the NACC. The issue then became that the channel for prosecution was wrong, and the investigation was wrong, but there was no opportunity to examine whether the actions of the defendants were really offences or not.
“Actually, the proclamation of the Emergency Decree clearly stipulated that actions must be taken only when necessary and in good faith. The situation that arose is beyond what the emergency decree covers. The order for the crackdown was not in line with international standards. Real bullets were used. We can clearly see that the operation went beyond what the law will protect,” Chokchai remarked.
Chokchai also said that in the 2007 constitution, there was a channel under Section 275 enabling victims to submit a complaint to a full panel of the Supreme Court to request an independent investigator to examine the case, in cases where the NACC dismissed an investigation into a political office holder, but this channel was removed in the 2017 constitution.
Chokchai thinks that in this case we have to hope that the government is intent on bringing about justice. But for this government, it would be like crashing into a wall. There are still 10 years left for criminal cases with a 20-year statute of limitations, but for crimes of malfeasance in office then there is only 5 years left since the statute of limitations is only 15 years.
Unable to file a case in the Civil Court or the Administrative Court
Apart from the criminal lawsuits almost coming to an end, civil procedures were also finalized when compensation was paid for injuries and deaths during the Yingluck government, since a condition for receiving compensation money was that no further civil lawsuit may be filed.
The Administrative Court also lacked authority to examine the case since Section 16 of the Emergency Decree stipulates that administrative orders issued under the authority of an Emergency Decree are not administrative offences.
The Administrative Court passed the case to the Constitutional Court to adjudicate on this issue and on the issue of whether the Administrative Court is authorised to examine the case or not since Section 16 of the Emergency Decree excluded the Administrative Court from consideration of cases arising from government orders issued under the Emergency Decree. On 9 June 2010, the Constitutional Court ruled that the declaration of a severe emergency situation was reasonable since there was a riot and damage to lives and property, so there was a necessity to exercise state authority to end the situation. The fact that Section 16 of the Emergency Decree excluded the Administrative Court’s authority to consider cases was so that state activities can be exercised quickly in solving a situation, and in addition to the Emergency Decree, other laws also exclude the authority of the Administrative Court to examine cases. The Constitutional Court therefore ruled that Section 16 of the Emergency Decree was not in conflict with the 2007 constitution.
From all that has been said, it seems that the judicial process in the country almost cannot work to restore justice to the victims of this situation. Those connected to the violent actions are also still in power in the government or the army to this day.
Avenues of legal action outside the country to call for justice were once the topic of discussion, after the 10 April 2010 incident led to 25 deaths. A few days later, Chaturon Chaisang talked of the International Criminal Court (ICC) for the first time, saying that those who dispersed the protest may be prosecuted there.
Thai state did not ratify the ICC for fear of affecting the protection for the Head of State
The ICC is a court established on 1 July 2002 under the Rome Statute and has jurisdiction in prosecuting international criminals for 4 offences: genocide, crimes against humanity, war crimes and crimes of aggression; and on 3 conditions: the severity of the case, the state party does not wish to take or is not capable of taking legal action, and the accused has never been found guilty by any other court for the same crime. This Court has special jurisdiction to examine cases before the establishment of the Court. Cases that are well-known and were examined by the ICC are war crimes in Libya, Sudan, Iraq, etc.
Even though Thailand signed the Rome Statue on 2 Oct 2000, the state did not proceed with the ratification process. This is an important step for the Statute to be put in effect and will allow the ICC to expand its jurisdiction to cases in Thailand.
When the Yingluck government was elected to replace the Abhisit government in 2011, campaigns urging the Thai government to ratify this Statute increased, with special pressure from victims like the UDD. The question of Thai government becoming a state party was also raised at the Universal Periodic Review (UPR) at the United Nations Human Rights Council in the same year, but the government did not respond.
When the government remained unresponsive, Robert Amsterdam, a lawyer from the Amsterdam & Partners law firm which Thaksin Shinawatra had hired to provide help to the UDD, took action on his own by gathering information on the crackdown and requesting the ICC to carry out an initial investigation, also demanding that the United Nations Security Council file a case with the ICC. But these efforts faced an important obstacle, which is that as long as the Thai government does not complete its ratification as an ICC state party, nothing can proceed.
During that time, the opposition also came out to voice their opinions. They emphasised that a country’s head of state must be under the jurisdiction of this international law, according to Article 27 of the Rome Statute which makes all persons equal without the ability to claim official authority and their status as the head of state to protect themselves. Thailand’s Head of State means the King. On 1 Oct 2013, the Ad Hoc Committee on Senate Affairs expressed the view that acceptance of the ICC reduces the protection of the King against violation which exists in Thai law. If an ill-intentioned person filed a complaint with the ICC, accusing the Thai Head of State of various offences, it may have an impact on the Thai King even though His Majesty is above any and all conflict. Thailand will not be able to prevent it at all. Additionally, the Committee saw that Thailand’s judicial process can still be applied and there is no need for the ICC to supplement the Thai justice system.
Thida Thavornseth, former President of the UDD, said that after the crackdown, she and Amsterdam, together with academics like Thongchai Winichakul, visited the ICC to explain Thailand’s situation and clarified that although Thailand’s loss of life was not as great as in other countries, for Thailand, the number is not as important as the frequency of this kind of repeated violence.
Thida continued, saying that later in November 2012, Fatou Bensouda, the ICC prosecutor, travelled to Thailand and met with Surapong Tovichakchaikul, Minister of Foreign Affairs in the Yingluck government to explain the steps needed to accept the ICC’s jurisdiction. This occurred in the midst of discussions of whether completing the ratification required prior parliamentary approval or not, according to Article 190 of the 2007 constitution. But in the end, the Yingluck government did not do anything until power was seized in the coup of May 2014.
“If the Yingluck government had ratified to join the ICC at that time, the coup may not have happened,” Thida said.
The UDD’s former president believes that the 2014 coup was connected to the massacre of people in 2010 because in the period of the Yingluck government, more than 30 cases of deaths entered the death examination process. Although none of the cases had yet been prosecuted as a criminal offence, the death examinations of many cases revealed information related to the military operations, and the names of soldiers and those related to the operations . In some cases the courts ruled that the deaths were the result of military actions, such as Phan Khamkong’s case and 6 deaths at Wat Pathum Wanaram. This is one factor that made it necessary for the army to halt the process.
Pratubjit Neelapaijit, an important human rights activist, thinks that although the ICC cannot take the 2010 crackdown for consideration as long as the Thai state refuses ratification, there are still other international mechanisms. In the past, information was not yet sent to these mechanisms, such as the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, who will send questions for Thailand to answer. Information has been provided according to the mechanisms of the International Covenant on Civil and Political Rights, and the Thai government has been asked about progress, but there has been no clear answer from the government, except for the response that they have compensated the victims.
Pratubjit said that in the past no one had updated information on the cases sent to international mechanisms. For example, families of the victims who came out to demand justice such as Phansak Srithep, Samaphan Srithep’s father, and Phayao Akhat, Kamonked Akhad’s mother, were threatened and prosecuted for coming out and campaigning on the issue. Information on obstacles and progress in cases related to the crackdown has not been updated. She believes that there is still another mechanism that has yet to be tried and that is the Convention on the Elimination of All Forms of Discrimination Against Women, where it is possible to send information on individuals, as in the case of Phayao who, as a woman, has faced various obstacles in the justice system in her daughter’s case.
Culture of impunity
Puangthong Pawakapan, lecturer at the Faculty of Political Science, Chulalongkorn University, shows in her article ‘License to Impunity’ that in incidents of violence in the past, people connected to the incidents never had to take responsibility for their actions at all, and the perpetrators were never taken into the judicial process. Self-amnesty laws were also used. For the April-May 2010 crackdown, Puangthong thinks that the state used a different way of creating impunity for the perpetrators. Apart refusing to take responsibility and claiming that the protestors used violence, had their own armed forces and shot themselves, the state also deployed the ‘independent organisations’ as a tool of impunity legitimizing the government’s actions at that time. This includes a committee that Abhisit established himself, the independent National Truth and Reconciliation Commission, and existing mechanisms like the National Human Rights Commission, which was established under the constitution, and the Courts of Justice.
Apart from the issue of independent organisations, the search for truth and justice stopped completely after the NCPO carried out its coup in 2014. Puangthong points out that Gen Prayut Chan-o-cha, while acting as Prime Minister and Head of the NCPO, issued an order to establish a new special case investigation committee by adding 7 officers from the military to the DSI investigation in order to set a framework for the investigation into the deaths.
Justice in a (not yet) transitional period
In the 10 years s the crackdown, within academic circles and those working in human rights, there was often talk about the process of democratic revival and rule of law principles called “transitional justice.” In summary, transitional justice is to make justice happen and become embedded in a democratic society, after a transition in the governance system from dictatorship with violence towards its own people, with the objective of resolving the violence that occurs and preventing any more violence from happening.
For the factors that can bring about transitional justice, the state has 4 essential duties. 1. Investigate, prosecute and punish those related to the commission of offences. 2. Reveal the truth to victims and their families. 3. Make amends to and compensate victims. 4. Screen out state officials with a history of violating human rights from state agencies and reform security agencies so that they perform their duties by respecting human rights principles.
“Right now, for Thailand, no case can stop any action the next time or lead to the collective creation of a standard. This is an important issue, because there is no change to the political power structure and it continues to maintain the status quo of the old system,” Pratubjit gave her opinion about transitional justice in Thailand.
Examples from various countries around the world that have succeeded in creating transitional justice all have one important factor - their people’s sector is strong enough to create democracy and the rule of law, and has a government that has the political intention to wash away the history of rights violations.