The truth behind “arrest warrants” in the Southern border provinces of Thailand

By Isara News
Translated by Rusnee Mustapa

Since several years ago, the society has questioned pertaining to the process of justice as well as the imposition of related law aiming at stopping agitating situations in the Southernmost of Thailand, especially “ the issuing of various arrest warrants” under quite a considerable overlap of many special laws.

As a result, most people have to stick to the cycle of being....arrested, imprisoned, probed, investigated, and then released as evidence of being in breach of law has not been found.

          Even though the release has then been met, they have to suffer from being lost in freedom for months or years. It leads to the harsh conditions for the dwellers escalating into the gradually lack of confidence in justice system.

          Pornpen Kongkajornkiat from the Cross Cultural Foundation summed up the report, conducted by the Muslim Attorney Centre along with the Cross Cultural Foundation, on establishing justice in the justice system among conflict societies in the Southernmost of Thailand so as to reflect the truth set behind the scene of “ a miscellaneous arrest warrants” in the Southern Region of Thailand.

Duplicated arrest warrants

          The said duplication starts with the process of requesting the issue of the warrant

          1 An issue of the Royal Act (under the Royal Act of Executing Government in Emergency Situation B.E. 2548

          - It is cited that the issue of the Act has to be approved by three parties (police, military, and administration). Providing that the afore-mentioned approval done by those parties has been met, a court will then issue an arrest warrant. It is regularly treated like a normal policy without any need in requirement stipulated in terms of legislative evidence, for example, the matter of ample and adequate evidence is not needed in considering the issue of the warrant.

          Back to the past period, pointless evidence such as implicating of someone in committing an illegal action, referring to a friend and an acquaintance’s name, as well as a name shown in telephone recording system, etc has been used as means of issuing an arrest warrant. Moreover, the warrant is often issued to someone after the situation occurred even though he/she is only one who sees the scene or one who is in adjacent area of the scene. 

          The said problem is not easy to be proved due to related authorities in charged with the imposition of special law (martial law and emergency decree) lose their mutual internal counterbalance within their security organizations. When the police side request for issuing the warrant, the military as well as the administration side will together sign and approve of the request and, vice versa, when the military ask for the action, the police and administration will sign and approve it. It is because they worry about the refusal of the next endorsement of the request if at least one of those said parties disagree on the request.  

          - During the period that Thailand’s Military Operations in the South was headed by Liteunant General Viroj Buajaroon, it was stipulated in article 3.1 that, according to the principle imposed in the emergency decree written by the Internal Security Operations Command region 4 (ISOC, Region4), an official has a right to ask for the issuing an arrest warrant merely because of being “a suspect”.

          It can be significantly observed that why just only letter certified by three parties (military, police, and administration) without adequate evidence being embroiled in any conflict situation is enough to issue the warrant. As such, it seems reasonable to assume that, sometimes, a person who got the warrant is not one who brings the critical conflict in the deep south as claimed. 

          - There has been the observation on the right to protect the one who obtains the arrest warrant according to the emergency decree. It should be in line with the regulation stipulated by the president of the Supreme Court of Thailand which the process of issuing “a summons” should be used. If not, the person who is innocent might obtain the arrest warrant and be arrested instead.

          - According to the emergency decree, it is found that the martial law act B.E. 2457 has always been exerted which, at first, a suspect is arrested and then the official will request for the issue of the arrest warrant under the emergency decree at a later time. It is because the official wants to extend the period of being remanded in custody. The use of the law is considered duplicated as it is clearly stated in the decree that any detention can be done only if a related authority has asked permission to issue the arrest warrant from a court. Conversely, the authority, at the first stage, wields power according to the martial law and then asks the permission from the court later on.

          2. The detention under the Martial Law

          - The observation is that there is no proof on the use of the martial law even by the judiciary. The use of the law, consequently, should be limited. The case that the judiciary allows for issuing the arrest warrant to someone (under the emergency decree) despite the fact that the person has already been treated under the martial law, it can be implied then that the judiciary cannot check the truth on the matter and cannot counterbalance the power of the administration or military who perform like the police.

          - The following result is that the population will be apprehensive and lack of confidence in the justice system. They do not even know the reason of being arrested and which warrant is being used. If they are intimidated by the authority by referring to the emergency decree as the threat, they do not exactly know what and how to perform or how to be free from the warrant.

          - In principle, when people are arrested under the martial law, they, as the detainee, have to be released within 7 days. However, as generally perform in the South, if any evidence has not been found within the period of those limited 7 days, the official will ask for permission to issue the warrant to them as “suspects” in causing the insurgency in the three southernmost provinces of Thailand which is under the emergency decree. The problem is able to facilitate the official to use both kinds of the law, in any case, and gain the power to detain the suspect for 37 days instead of 7 days (according to the martial law) or 30 days (according to the emergency decree).

          - The proposal aiming at protecting human right so as to bring back the confidence in the justice system as well the implementation of the judiciary should be in line with the principles of the criminal procedure code and the regulation stipulated by the president of the Supreme Court. It means that related official should check, during the process of issuing an arrest warrant, whether the person who is going to obtain an arrest warrant is under the power of the martial law. If so, a duplicated arrest warrant is not needed as the detainee has already been arrested and remanded in custody.

          3. The issue of the Criminal Procedure Code in a conflict situation and terrorist attack

          Providing that a suspect has been arrested according to an arrest warrant and, also, put in jail, in a normal situation, according to the implementation of the Criminal Procedure Code, the next of kin are given right to investigate the request for the warrant pertaining to the time of being arrested and the related topic and situation of an allegation by means of using the number of both arrest warrant and number of case which, in that regard, the same number will be used until the end of the process. It, consequently, helps their relatives find the truth so as to make an effort to conduct litigation since the early stage of being investigated. 

          However, according to the arrest warrant under the emergency decree, the relatives are unable to check the request for issuing the warrant as well as the request for extending the period of being controlled due to the change in the warrant number occurred every 7 days. As a result, the next of kin cannot investigate the particular details regarding the time and the cause of being arrested. 

Questions on evidence

          The next issue, the conflict over the evidence used for issuing the arrest warrant, is considered a particular problem of the far south of Thailand. 

          - In case of applying forensic evidence to related process, there will be queries about prejudice and bias (as the office of the Central Institute of Forensic Science is located in military barracks for security purposes). People and other organizations will not know about the proof of the evidence whether it is above board or not. It, inevitably, is then believed that the system cannot develop any justice but creates mismatch between the people who stand accused for bringing the conflict (committing political offence) much more than public offence. A clear example of the matter is “DNA” testing currently conducted in the area. All suspects have to take “DNA” test in order to prove them innocent and prove that their genetic codes are not identical with “DNA” collected at the scene of violent situations. 

          - There have been problems on criminal records such as the process of identifying a wrongdoer as well as building a record. As the officials have to build a various records of persons who have been taken captive, some are only investigated by them, some are given order to meet them only for 2-3 hours while their photos have already been taken and filed in criminal records. They claim that the photos will be kept merely because of being under the emergency decree even those people have not yet indicated as suspects. Many of them, however, are only the persons who just watch the scene.

          - There has been the use of interrogation record, kept during being remanded in custody under emergency decree, as evidence of being accused and the prosecution against the detainee as well as the use of the record as evidence in a court of law so as to be proven guilty(although it cannot be done according to the rule of law).

          - The presumption of innocent has always been replaced with the presumption of guilty which the evidence before bringing the prosecution are always a particular type of implicating the others and hearsay with low standards (which a careful listen is needed). The official always accepts and impeaches the case at the first stage and, consequently, the process leads to the excessive number of court cases. Moreover, a considerable number of detainees will be sent to prison most of which cannot be  bailed out as the official is afraid of escape made by the detainee by claiming that the cases are very serious.

          - The allegation of terrorist means a gathering of five people with the aim of concealing the status of being involved in the member of Pattani State. The official always raises the matter as the evidence of the act of implicating as well as relevant hearsay. Police always describe about prosecution as well as produce related copies of the prosecution repeatedly. Moreover, there has been the same personal evidence describing to the court so as to find the defendant guilty at being a terrorist, a rebel, and a separatist according to the theory they believe. That is the problem on matter of both law and fact to be proven guilty at the allegation of being rebel, providing a criminal association, and involving in all cases that cause violence to the area.

          As a result, related seminar of the matter should be held so as to perceive exactly how to overcome all said problems and develop standards on how to prove related matter of fact and law. It is because the problems affect the right of quite a considerable number of accused. As of now, there are about 500 accused of security offence in a court of law which some of them are bailed out. Unfortunately, most of them cannot even be temporarily released and have to be put in the prisons located in the deep south and Songhla provinces.

The Endless Arrest Warrant 

          With regard to the matter of the termination on power of official in imprisoning the suspect according to the Emergency Decree, in principle, the judiciary has to use the same criteria with the Criminal Procedure Code (Article 68). It, however, was found that there is no any release according to the Emergency Decree. Also, in many cases, the official executes the same warrant previously used under the Emergency Decree for the reason to imprison the same person. 

          In accordance with the Criminal Procedure Code, when the judiciary allows for issuing the arrest warrant, related official has to submit the copy of the warrant to the Criminal Affairs Division ( the Royal Thai Police) so as to disseminate to relevant organizations such as the Immigration Bureau, the Passport Division, and  Embassies, etc. If the suspect is then arrested according to the arrest warrant, captors as well as organizations that issue the warrant are duty bound to inform the Criminal Affairs so that the warrant will be deleted later.

          In practical terms, however, according to the emergency decree, the official has stored information pertaining to the issue of an arrest warrant executed to the detainee on online computer data base. The fact remains that even though the suspect has been arrested and then released, they remain to be captured, whenever possible, at various check points. Moreover, the suspect will be free only if the confirmation on the capture and release afterwards is provided by organizations responsible for requesting to issue the warrant. In some cases, if the confirmation given by the relevant organization is not met, the suspect’s right to travel will be limited immediately.

          Besides, some organizations have brought back the arrest warrant for the purpose to compel the people under the warrant to participate in a variety of activities as well as seminar projects. They claim that the process has to be done so that the warrant under the emergency decree will be liberated.

          In this regard, people have proposed that the judiciary should introduce, whenever possible, some regulations related to the release of the arrest warrant issued under the emergency decree by specifying that related organizations should inform of the status of the warrant to related security authorities by means of notifying the information within 24 hours after being remanded in custody or released from the warrant.

          By the way, the problem regarding the issue of the arrest warrant occurred during the period of emergency situations in the deep south as well as those criminal procedure codes are the people’s observations made just only because of the work and cases that have been found. It does not mean that all officials working in the area are of the same standards as implied by most people.

          However, the situation encompassed by conflict and weapon violence leads to a flaw in counterbalance checking according to justice system in the stage executed by police, prosecuting attorney, and court. Moreover, the flaw is always met in the system of providing legislative help such as the stage conducted by attorney and mechanism of the Ministry of Justice. As a result, the concordant policy pertaining to justice should be set and all related problems should be overcome by all concerned parts in the right way accordingly... 

          before people lose their confidence in Thailand’s rules of laws as well as justice system.