Sulaiman Naesa, who died under mysterious circumstances in Ingkayuttaborihan military camp in Pattani on 29 May, was the second suspect after Imam Yapha Khaseng to have died in military custody.  The case has added fuel to criticisms of the justice process under the special laws in the southern border provinces.

According to a report by the Southern Border Province Bureau of the police on operations from 21 July 2005 – 31 March 2010, the authorities conducted 21,606 raid-and-search operations targeting 42,737 suspects, issued 4,171 arrest warrants under the Emergency Decree, arrested 2,962 suspects, and killed 46 people in clashes.  Since the unrest started in 2004, the southern border provinces have been under three special laws: the 1914 Martial Law, the 2005 Decree on Public Administration under the Emergency Situation, and the 2007 Internal Security Act.

Sitthipong Chanwirote, Secretary-General of the Muslim Lawyers Centre, said that people affected by the laws had filed more than 1,000 complaints with the Centre, and all of them were Thai Muslims.

He said that currently people were living in a state of fear, and did not trust the justice process.  In principle, those arrested under Martial Law should be released within 7 days, but in practice, when they cannot be connected with any wrongdoing during ‘interrogation’, the military authorities will instead ask the court to issue them with warrants under the Emergency Decree as suspects involved in the insurgency.  This means that the authorities can use the two laws to detain individuals for 37 days, instead of either 7 or 30 days according to each law.  This should be considered a misuse of law enforcement, as the Emergency Decree clearly states that a person can be detained only if an arrest warrant has been sought and issued by the court, but the authorities make the arrests under Martial Law, and then seek court orders afterwards.

He said that family members of many suspects who were detained under Martial Law faced difficulty in locating them as the place of detention was not disclosed.  The location will be known only when family members are notified of another court warrant to extend the period of detention.  Detainees were in the past denied the right to visits by family members during the first three days of detention.  Only when many complaints were lodged with the court about torture during interrogation did the army scrap the rule, but it still forbids detainees from seeing lawyers.

In some cases, the authorities sidestep minimal standards practice which is supposed to ensure the rights of detainees, claiming that the rules of the Internal Security Operations Command allow them to seek an extension of the detention period without having to bring detainees to court, so that lawyers and family members have no chance of observing signs of any physical abuse on the bodies of detainees, Sitthipong said.

On 11-13 June, the Chair of the National Human Rights Commission Amara Pongsapich, National Human Rights Commissioner Niran Pithakwatchara, and members of the NHRC subcommittee on the south will make a field visit to Pattani to follow up problems of human rights violations under the security laws, and will propose to the Region 4 Army Commander that the authorities inform family members of the whereabouts of suspects immediately after arrests are made.  The National Human Rights Commission will also hear the facts of Sulaiman’s death.

The Muslim Lawyers Centre will present to the NHRC recommendations to the judiciary concerning the practice of the justice process in line with the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a party, to ensure fundamental rights even under emergency situations.

The Centre recommends that, for example, when issuing arrest warrants under the Emergency Decree, the court should examine evidence and witnesses from the authorities; the authorities should be required to report to the court on the current state of detainees; and in order to extend the period of detention, the authorities should be required to bring detainees to court, so that detainees can make objections to the extension -- currently the court follows the ISOC regulations which, the Centre argues, are legally inferior to the Emergency Decree, the Criminal Procedure Code, or the Constitution.

Asst Prof Dr Srisomphob Jitphiromsri, Director of Deep South Watch, Prince of Songkhla University, Pattani Campus, said that during 6 years of unrest in the south, 4,000 people had been killed and tens of thousands injured. The government opts to call those involved with violence in the south ‘troublemakers’ rather than ‘terrorists’ as it unhesitatingly called the red shirts, because the movement in the south uses violence as a political tool, with important religious and ethnic dimensions which can be linked to international politics.  Therefore, the government has to try to show that it is in control of the situation and can enforce the law.

‘Meanwhile, the Thai state has lost legitimacy in the rule of law, in which everybody should be equal under the Constitution. But when it chooses to use Martial Law and the Emergency Decree as the major legal tools to raid homes and detain suspects, incurring damage, the state can use the law to grant impunity to the authorities for any mistakes or damage resulting from the enforcement of the law’, he said.