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V. Thai Government’s Failed Response to the Problem of “Disappearances”  

The government agencies—including the police, the Justice Ministry’s Department of Special Investigation, and the National Human Rights Commission—charged with investigating extrajudicial killings and other human rights violations have failed to carry out full and impartial investigations of the allegations of “disappearances” connected to violence in the southern border provinces.

The Somchai Neelapaijit case

Of all the reported “disappearances” connected to the government’s counterinsurgency operations in the southern border provinces, renowned lawyer Somchai Neelapaijit’s disappearance is the only case that has led to a prosecution and received significant public attention. This was because of widespread publicity and local and international pressure, yet even then only one police officer was convicted on a relatively minor charge. Exactly what happened to Somchai after his abduction from a Bangkok street and exactly who was behind the crime remains unsolved and unpunished. The police investigation was weak and suffered significantly from inadequate forensic information. The Central Institute of Forensic Science, created under the Justice Ministry in 2002 in response to the public’s loss of faith in the impartiality of police forensic investigations, did not have an opportunity to properly collect evidence and testify during the investigation and trial of Somchai’s case.

Somchai Neelapaijit, the 53-year-old chairman of Thailand’s Muslim Lawyers Association and vice-chairman of the Human Rights Committee of the Lawyer’s Council of Thailand, “disappeared” on March 12, 2004. At that time, he was representing five persons arrested in connection with the militant raid on the Narathiwat Rajanakarin Camp on January 4, 2004: Makata Harong, age 49, Sukri Maming, 37, Abdullah Abukaree, 2o, Manase Mama, 25, and Sudirueman Malae, 23.  The authorities had detained them on charges related to national security, specifically conspiracy to commit rebellion, the recruitment of people and the gathering of arms to commit rebellion, functioning as a secret society, and acting as a criminal gang.

Somchai accused the police of torturing his clients. In a letter to the Senate on March 11, 2004, he alleged that the police severely assaulted and forced the five men to confess to crimes while they were detained at Tanyong district police station, Narathiwat.  As set out in the letter:

• Makata was blindfolded. He was kicked in the face and mouth. The police stepped on his face after thrusting him to the floor. They also urinated on his face and into his mouth. Then, they applied electrical shocks to the body and testicles of the suspect three times.
• Sukri was blindfolded. He was kicked all over and forced to lie down. The police later slapped his face with shoes and urinated on his face.
• Abdullah was blindfolded. He was kicked all over. His ears were slapped. He was handcuffed behind his back and his feet were tied. The police used electrical shocks on his body and particularly on his back.
• Manase was blindfolded. He was handcuffed behind his back and strangled. His head had wounds from the beating. The police hanged him by his head from a cell door. He was hit on his body and given electric shocks. 
• Sudirueman was blindfolded. He was slapped on his face and mouth with his shoes. His ears were also slapped. He was hit in the stomach and given electric shocks several times. ⁹⁰

The next day Somchai disappeared. He was last seen at the Chaleena Hotel on Ramkhamhaeng Road in Bangkok on March 12, 2004. His car was found abandoned on Kamphaeng Phet Road near Mor Chit bus terminal.⁹¹

In the weeks prior to his “disappearance,” Somchai had reported to colleagues and family members that he had received threats since taking on the cases of two Thai alleged members of the Jemaah Islamiyah, a violent, Southeast Asia-based Islamist group accused of carrying out bomb attacks in Thailand.  He reported receiving further threats after taking on the five Narathiwat Camp raid suspects. Somchai had been systematically informing colleagues and his family about his movements.

Shortly before his “disappearance” Somchai told a co-worker that he was scheduled to fly to Narathiwat. But he did not show up there. After they lost contact with Somchai, his co-workers checked his flight and found that the flight had not been cancelled. Colleagues and family members said Somchai had a good reputation for keeping court appearances and appointments. When he didn’t arrive as scheduled, they feared he might have been abducted in retaliation for his participation as a defense lawyer in the “security cases” in the southern border provinces.⁹²

On March 18, 2004, Human Rights Watch expressed concern over comments by then-Prime Minister Thaksin and other senior government officials which downplayed concern for the safety of Somchai by suggesting his “disappearance” was merely due to a “family” or “personal” problem.⁹³

In April 2004 five police officers were arrested: Police Maj. Ngen Tongsuk (Crime Suppression Division), Police Lt. Col. Sinchai Nimbunkampong (Crime Suppression Division), Police Lance Cpl. Chaiweng Paduang (Tourist Police Division), Police Sgt. Rundorn Sithiket (Crime Suppression Division), and Police Lt.  Col. Chadchai Leiamsa-ngoun (Crime Suppression Division).  The 896-page indictment does not charge any of the five police officers with abduction or murder, or with kidnapping, as under Thai criminal law filing a murder charge requires physical evidence to prove that a person is dead⁹⁴ (Somchai’s wife spent considerable time trying unsuccessfully to find his remains). Under the law, to prove kidnapping ransom must be sought. For these reasons, the police officers in Somchai’s case were only charged with “forceful restraint of Somchai’s freedom against his will” and with “committing robbery” and “compelling other persons to act.”⁹⁵ The officers pleaded not guilty and were released on bail.

According to testimony offered by witnesses at the Bangkok’s Central Criminal Court in August 2005, an unidentified group of men forced Somchai into a car and drove away. One witness said she was walking on Ramkhamhaeng Road at about 8:30 p.m. on March 12, 2004, when she saw a black Toyota sedan with its caution lights on parked behind a green Honda Civic. After she walked a short distance further she heard a male voice shouting. When she turned around she saw a heavyset man with cropped hair in a black jacket, white t-shirt and trousers pushing the first man, whom she later identified from media reports as Somchai, into the black car. The man was struggling as the door was closed on him. After that another man from the black car went to the green car and the two vehicles drove away together. Some days later she went to Hua Mark district police station where she identified one of the five accused, Police Major Ngen Tongsuk, as resembling the person whom she saw pushing Somchai into the car. Police Maj. Ngen had earlier been identified as being connected to the alleged torture of Somchai’s clients arrested in connection to the raid on the Narathiwat Camp.⁹⁶

On January 12, 2006, the Bangkok’s Central Criminal Court found Police Maj. Ngen Tongsuk guilty of physically assaulting Somchai and sentenced him to three years’ imprisonment. The other four accused police officers were acquitted due to insufficient evidence. The trial failed to explain what happened to Somchai after the assault or who was responsible for his “disappearance” and presumed death.⁹⁷

The next day, January 13, Thaksin publicly stated for the first time that government officials were involved in Somchai’s abduction and killing:

The Department of Special Investigation is working on this case and murder charges are being considered. I know Somchai is dead, circumstantial evidence indicated that

Somchai’s wife, Angkhana, told Human Rights Watch that Thaksin had informed her since late 2004 that her husband had been taken to Ratchaburi province after his abduction.⁹⁹ It is unclear how Thaksin learned of this information, but neither he nor senior police officials were subpoenaed by the Justice Ministry’s Department of Special Investigations (DSI)—which had taken over the investigation of the case from the police—to explain it.

One reason the trial did not conclusively address the “disappearance” and apparent murder of Somchai was the weak evidence produced through the police investigation. The investigation was almost certainly hindered because of political interference and the allegations of police involvement. In addition, the criminal inquiry suffered significantly from inadequate forensic information: the Institute of Forensic Science, created under the Justice Ministry in response to the public’s loss of faith in the impartiality of police forensic investigations, did not have an opportunity to properly collect evidence in Somchai’s case. Dr. Pornthip Rojanasunant, director of the institute, told Human Rights Watch that the public prosecutors never requested the evidence she collected, and no one from the institute was called to testify in court.¹⁰⁰

Despite deep public concern in Thailand and abroad about the whereabouts of Somchai, Thaksin’s government directed most of its efforts towards deflecting criticism over the handling of the case rather than providing prosecutors with what it actually knew and pressing for a serious investigation. On September 23, 2004, Angkhana requested the DSI to take up the case, and publicly complained about the lack of efforts by investigators. The DSI did not agree to carry out a new investigation based on her application until July 2006—six months after the trial of the five police officers.¹⁰¹

On April 15, 2005, Angkhana submitted a formal complaint to the United Nations Working Group on Enforced or Involuntary Disappearances expressing disappointment that the authorities in Thailand had failed to solve the case. In a statement prepared for the United Nations Commission on Human Rights, she said, “Now the only thing that we wish is to see his remains. Even if only his ashes, still we would be happy. But our hopes are not strong. We do not see any genuine goodwill from the authorities.”¹⁰² She specifically stated that, according to the deputy director of the Institute of Forensic Science, there had been no cooperation from the police despite useful evidence found in Somchai’s abandoned car.¹⁰³

Angkhana told Human Rights Watch that the Working Group entered into continuing dialogue with the government in June 2005, and noted that the Working Group has a particular mandate to address enforced disappearances when they apply to human rights defenders such as Somchai.¹⁰⁴ On July 22, 2005, the Working Group sent a prompt intervention letter to the Thai government expressing serious concern about the reported harassment and intimidation of Angkhana, which might have been in retaliation for her activities related to calling for justice and searching for Somchai.¹⁰⁵

The interim government of Gen. Surayud Chulanont formed after the September 2006 coup has put pressure on the DSI to speed up its investigation. The government sidelined the DSI chief, Police General Sombat Amornwiwat, by transferring him to the post of deputy permanent secretary for the Ministry of Justice in November 2006, replacing him with Sunai Manomaiudom—a widely respected Appeal Court judge.

Angkhana says she is still not confident that actions taken by the interim government would be sufficient to end what she considered “serious incompetence and deliberate obstruction of justice by many police, especially those from CSD [Crime Suppression Division], who are still playing important roles in DSI investigations” of her husband’s “disappearance.”¹⁰⁶ She also expressed concern about the safety of witnesses who testified in this case during the criminal court trial.

International criticism of “disappearances,” and prospects for redress under the new government

On July 28, 2005, the UN Human Rights Committee stated in its concluding observation on Thailand’s compliance with the International Covenant on Civil and Political Rights that it was concerned about the practice of enforced disappearance and the question of impunity.

The State party [Thailand] should conduct full and impartial investigations into these and such other events and should, depending on the findings of the investigations, institute proceedings against the perpetrators. The State party should also ensure that victims and their families, including the relatives of missing and disappeared persons, receive adequate redress. Furthermore, it should continue its efforts to train police agents, members of the military and prison officers to scrupulously respect applicable international standards. The State party should actively pursue the idea of instituting an independent civilian body to investigate complaints filed against law enforcement officials.¹⁰⁷

The government of Prime Minister Thaksin appeared to be indifferent to allegations of abuses. Promises for investigation and justice appear to have been only rhetoric, aiming only to defuse criticisms and political pressures. Thaksin on August 6, 2005, in a speech condemning “disappearances” and extrajudicial killings, told a forum hosted by the National Human Rights Commission that these practices were a result of some police officers with “good intentions” who “wanted to be effective but chose to violate human rights.”¹⁰⁸ In the face of continuing enforced disappearances, there have been no serious criminal investigations focusing on the reported disappearances to bring those responsible to justice.

The military coup on September 19, 2006, that ousted Thaksin from power created euphoria among many in the ethnic Malay Muslim population. When the interim prime minister, Gen. Surayud, noted in his inaugural speech on October 1, 2006, that “injustice in the society was primarily the cause of problems in the southern border provinces,” some expressed hope that things would change.¹⁰⁹ On November 2, 2006, Gen. Surayud took another important step in the government’s reconciliation efforts by making an unprecedented public apology for the deaths and injuries of the Tak Bai protesters. At an assembly of more than 1,500 ethnic Malay Muslims at CS Pattani Hotel in Pattani, Gen. Surayud said, “I have come here to apologize to you on behalf of the previous government and on behalf of this government. What happened in the past was mostly the fault of the state.”¹¹⁰ The apology was followed by Gen. Surayud’s promise to instruct the Public Attorney’s Office to withdraw criminal charges against Tak Bai protesters.¹¹¹ At the same time, he also announced the reestablishment of the Southern Border Provinces Administrative Center, led by Pranai Suwannarat, to help coordinate the overall administration of the southern border provinces. Gen. Surayud also promised that the SBPAC would address complaints from the ethnic Malay Muslim population concerning corrupt, abusive, or inept government officials, and would be able to order the transfer of such officials within 48 hours.¹¹²

Gen. Surayud’s statements focusing on justice and reconciliation are a good start. While the words are welcome, it is now time for action. At this writing, it remains unclear whether the new government will take strong measures to end state-sanctioned abuses and the prevailing culture of impunity. Deep structural reforms and a clear commitment to human rights protections, even in the face of militant bombings and other attacks, are desperately needed.