Reversing the Legacy of Injustice in Thailand’s Conflict-Ravaged South

In the book, Voices of Hope: Stories of Women in Peace Process, Kamnung Chamnankij, whose husband and son had been charged in 2007 with the possession of chemicals associated with explosive devices and were subsequently arrested, recalled: “I had to sell my house, my only two cows, my husband’s fishing boat, and later even borrowed from a loan shark to free my husband and son from prison on bail. Some of our friends, and even our relatives, looked at us like strangers, and customers would not buy from us anymore.” While the husband was released after three months due to lack of evidence, the son’s case dragged on until he was eventually acquitted, but not before Kamnung had nearly lost everything in the process.

Kamnung’s story is typical of the experience of many families who have endured economic hardship, loss of social status, and mental suffering to support the judicial struggles of loved ones in Thailand’s southern border provinces, where a resurgence of an indigenous, ethno-nationalist conflict has claimed nearly 6,000 lives and injured more than 9,500 people.

A weak and ineffective justice system in southern Thailand is one of the most common and longstanding grievances that fuels local resentment among members of the Malay-Muslim majority population, affects the security of the Thai-Buddhist minority community, and perpetuates violent conflict in southern Thailand. There have been many instances of poor access to the formal justice system, arbitrary arrest and lengthy detention of those accused, human rights abuses by security sector, and impunity on the part of both state and insurgents. From 2004 to 2012, out of nearly 8,000 security incidents, the police referred only 4,700 security-related charges to prosecutors. Of this number, only 907 cases were deemed to have sufficient evidence to proceed, based mostly on witness testimony and hearsay, and were forwarded to court. Among these, 439 (48%) led to acquittals. The legacy of problems in access to justice has contributed to the lack of trust and poor relationship between state and society at large in southern Thailand.

In 2008, The Asia Foundation started a program with public prosecutors to promote the application of forensic evidence in security cases in southern Thailand. With technical assistance from forensic police and forensic doctors, public prosecutors conducted a number of activities to help build their own capacity, including development of first-of-their-kind manuals on the application of forensic investigation and evidence to improve security case management.

Years of effort have led to positive changes within justice institutions in southern Thailand. In 2013, the Office of the Attorney General opened a special unit for security-related prosecutions in southern Thailand, to which an elite cadre of experienced prosecutors were assigned to handle security-related cases. Research on the effectiveness of the justice system, commissioned by the Foundation in 2012 and 2013, showed improved practices on the part of prosecutors. The percentage of cases forwarded by prosecutors to the court declined from over 90 percent of cases in 2004-2006 to 60 percent in 2013, while the conviction rates in the Supreme Court increased from an average of 36 percent in the period 2004-2011 to 72 percent in 2013. This combination of improved screening and higher conviction rates owes in large part to the prosecutors’ more rigorous scrutiny of the strength of evidence and insistence on sound forensics evidence as a basis for forwarding cases to trial. A defense lawyer from the Muslim Attorney Center Foundation (MAC), the most respected secular organization among local population of the South, said in an interview with the Bangkok Post that, “Justice has improved in the Deep South as now forensic evidence is part of investigations, not just ‘confessions’ or ‘incriminating evidence’ from other suspects.”

But it will be a long process to totally fix the system. “When one gap is fixed, there’s a hole somewhere else,” reflected a paralegal associated with the Southern Paralegal Advocacy Network in reference to the fact that, while public prosecutors evidently perform better, gaps remain with police investigators and the military. In southern Thailand, the Martial Law and Emergency Decree that has taken precedence over the Criminal Code since 2005 grants security forces legal immunity and the authority to detain suspects without charge for up to 37 days.

While some authorities argue that these special laws are necessary tools to manage the complex conflict situation, others argue that the exercise of such authority carries corollary obligations of accountability and adherence to human rights principles. Public prosecutors have come to a similar realization. To protect the rights of citizens and increase the standards of justice, they increasingly recognize the need to step out of their institutional territory and work in cooperation with other justice actors, including military officials and police investigators.

In 2014, The Asia Foundation began a nine-month program that brings together pre-trial justice actors in southern Thailand, including military officials, police investigators, forensic doctors, and forensic police, led by the Regional Office of Public Prosecutors to discuss ways to improve the justice process and capacity. The group jointly developed two guidelines for interrogation and police inquiry and investigation, revised problematic internal regulations to conform to international human rights standards, and produced Thailand’s first comprehensive training curriculum for pre-trial justice actors on the management of security cases through the application of forensic evidence.

The program culminated in a five-day forensics training workshop in Hat Yai last week. Forty participants, ranging from military officials, investigators and prosecutors, to doctors, attended an orientation program on new procedural guidelines that adhere to international human rights principles and related forensic investigative procedures. A seminar room was turned into a military barrack, the actual site of a recent shooting in the area, according to one case study. Two model bodies bearing artificial gunshot wounds lay on the floor awaiting forensic examination by participants. Interrogation premises and prosecution offices were set up for participants to practice the standard operating procedures for forensic investigation through role-playing. Participants also went on a one-day visit to a police forensic center in the area to observe state-of-the-art forensics examination as well as the demonstration of standard crime scene investigation procedures.

“Today I witnessed our country’s first true collaboration among justice actors, and it is happening here in southern Thailand,” said Lieutenant General Prakarn Chonlayuth, Army Commander Region 4 (Southern Thailand), in his keynote speech after the training. In earlier comments, he also insisted that military operations under his command must be led with forensics and rule of law, not just the mere use of force.

At the end of the day, there is no value in officials performing their duty if the state cannot protect the people they serve. Kamnung’s story serves as a harsh reminder that harm has been done, grievances stirred, and mistakes must not be repeated. Collaborative efforts to deliver better justice are a promising step on the reform path. In light of the revived optimism surrounding the prospect of resumed peace talks, addressing justice grievances is instrumental in re-building trust between the parties to the conflict in the South – a pre-condition for a meaningful peacemaking process to follow.

Santi Nindang is a program officer for The Asia Foundation in Thailand. He can be reached at [email protected]. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.