Released on 4 Jan 2013
CrCF Press Statement
“Nine years under Martial Law in Southern Border Provinces”
In the aftermath of gun robbery at the Development Battalion 4, Narathiwat Rajanagarind (Pileng) Army Camp, Jao Ai Rong District, Narathiwat, an order was issued by the Army Region 4 Commander to enforce the Martial Law Act in the provinces of Narathiwat, Pattani and Yala (Southern Border Provinces -SBPs) to address unrest in the area since 5 January 2004. It was the first of its kind and the enforcement has lingered until it was replaced by the Emergency Decree on Government Administration in States of Emergency 2005 (B.E. 2548) on 21 July 2005.
On 19 September 2006 (BE.2549), one year after Martial Law was lifted, the Council for Democratic Reform (CDR), the coup maker, declared the enforcement of Martial Law countrywide. Later, it was lifted in most areas except in the provinces of Narathiwat, Pattani and Yala until present. The law has been enforced by successive governments overlapping with the enforcement of Emergency Decree to address violent situations in SBPs for nine years now.
Obvious ramifications of the enforcement of Martial Law in SBPs include operations to cordon off, search, arrest and detain persons without having to establish search warrants or arrest warrants issued by the Court. The law provides extensive powers to military officers making it possible for them to infringe on civilian rights and freedom without being subjected to review of any agencies including the judiciary. The search, arrest and detention invoking Martial Law as per Article 15bis allows the authorities to hold in custody a person for no longer than seven days. Such a right to hold a person in custody is subjected to the discretion of the military personnel. The extension of the detention can be made possible citing either the Emergency Decree or Criminal Procedure Code. These detentions have to be preceded by approval from the Court. It makes it possible for the judicial review to take place and the reasons for the arrest and detention can be properly reviewed but not under Martial law. The judicial review ensures that the execution of power by security personnel is lawful and does not unnecessarily infringe on individual rights and liberties.
The nine years of the enforcement of Martial Law in SBPs have given rise to many problems. For example, certain individuals were held in custody while their relatives were not properly informed of their whereabouts. No clear rules or regulations exist as per the possibility the relatives could visit the persons held in custody, how and how long the visit can be made. Though not all aspects of powers have been invoked as per the enforcement of Martial Law, but in general, it has given more power to the military personnel over civilian personnel whereby the latter have to the serve to the orders of the former in three issues including operational tactics, suppression and prevention, and on keeping public order. Thus, the military officers have the right to search, conduct compulsory requisition, seize, occupy, dismantle or change and evict.
They also have the power to search including inspecting message, letter, telegraph, book, printed matter, newspaper, advertisement, verse or poem. They can prohibit including prohibiting any assembly or meeting, banning issuance, disposal, distribution or dissemination of any book, printed matter, newspaper, advertisement, verse or poem, any advertising, showing of entertainment or receiving or broadcasting radio or television. Prohibitions can be made on transportation in any public path, on the possession or use of communication devices or weapon, on staying outside their dwelling places during determined period, etc. Such execution of power does not abide by democratic rule. And peace process cannot commence given a lack of democratic atmosphere and while the state still allows the military to enforce Martial Law.
On the ninth anniversary of the enforcement of Martial Law in SBPs, Cross Cultural Foundation (CrCF), a civil society organization working to promote access to justice process among people in SBPs to ensure the rule of law and compliance with human rights principle, has the following demands to make on agencies in charge of solving unrest in SBPs.
- The enforcement of Martial Law in SBPs should be reviewed since it gives more power to the military personnel than the civilian personnel. Such a condition has affected local people making the unrest become violent, complicated and hard to solve. Solutions to the unrest should be mainly left at the responsibility of the civilian officers instead of leaving it in the hand of the military as the nine previous years. It shall help to begin an atmosphere for forging genuine peace.
- Clear rules and regulations regarding the holding in custody of a person should be meted out in compliance with the guarantees of individual rights and liberties in normal justice process. Both the persons held in custody and their relatives must be informed of the reasons for the detention and where the person is held in custody as well as any procedure concerning the visit and release of the person held in custody.
- The Martial law should be reviewed to make it reflect democratic rule based on the separation of powers, the rule of law and protection of individual rights and liberties. The Martial Law Act B.E. 2457 (1914) was issued prior to the time the country turned a democracy. Therefore, several of its Articles bestow absolute powers to state officers with no checks and balances from other agencies as per the democratic system.
More detail: Ms. Pawinee Chumsri , Lawyer, CrCF Tel. 02-6934939