A brief report: Joint forum “The Fourth Army Area Commander – and Deep South civil society network”, authorities urged to respect child rights, DNA sample collection and testing could infringe on rights
By the Information Center of the Cross Cultural Foundation (CrCF)
On 11 August 2015, at the Internal Security Operations Command Region 4 Forward (ISOC Region 4), Sirindhorn Military Camp, Yarang District, Yala, a network of civil society network including Cross Cultural Foundation (CrCF), Duay Jai Group, Foundation for Child Development, Youth Voluntary Heart, Youth Progressive Dialogue, academics from Fatoni University and relatives of victims who died in an incidence at Ban Toe Jud, Thung Yang Daeng District, met with the Fourth Army Area Commander, Lt Gen Prakan Chonlayut, Director of the Internal Security Operations Command Region 4 Forward, to have a discussion on law enforcement in relation to collection of DNA and other related human rights issues including threat against human rights defenders in the deep south.
It has stemmed from complaints by civil society network activists, general public and youth in the Deep South that people are being subjected to intimidation by officers, and are being forced to undergo DNA testing even though they are not under suspicion of having committed any offences.
Lt Gen Prakan Chonlayut chaired the meeting, which was attended by police, military officers and officers from other units including the Deputy Directors of the Internal Security Operations Command Region 4 Forward (1) and (5), Secretary General of the Internal Security Operations Command Region 4 Forward, Southern Border Police Forces, Songkhla Taskforce, representatives from Office of the Basic Education Commission, Southern Border Provinces Police Operation Center, Public Prosecution of special litigation and representatives from the Central Institute of Forensic Science, etc.
Col Pramot Phrom-in, Spokesperson of the ISOC Region 4 Forward, as moderator of the discussion, has summed up the points raised including demands of the civil society network and other important issues and reported them to concerned agencies. Pol Maj Gen Pridi Phongsetthasan, Commander of the Southern Border Provinces Police Operation Center 10, has explained about reasons for and procedure of DNA testing. Pol Col Suthep Phattharawiwat from the Southern Border Police Forces, explained about measures to get rid of racial discrimination, ID card examination and a review to reduce the use of special laws. Mr. Sophon Thipbamrung from the Department of Special Litigation, Criminal Case 2, Region 9, has said that according to the Penal Code, prior to conducting DNA testing, informed consent must be obtained.
At present, the DNA sample collection and testing has been performed mainly by two agencies including the Central Institute of Forensic Science under the Ministry of Justice and the Scientific Crime Detection Center 10 of the Royal Thai Police. Both state agencies claim all persons undergoing the test had given their written consent, though it was challenged that such consent might have been obtained by forceful means. In addition, in most cases, the security forces and other officers usually conduct the DNA sample collection and testing without informing the persons of their rights or their choice to refuse to participate in the process.
One main issue was raised by the Chairperson of the Cross Cultural Foundation (CrCF), Mr. Somchai Homlaor that in the past four or five years, it seems government officers had increased understanding about human rights principles, constitutional rights and local culture. Nevertheless, there have been more emerging issues and challenges and in order to restore peace in the Deep South, he appreciated the willingness of the Army Area Commander to listen to inputs from civil society network and to allow this meeting to take place today. One major issue to be discussed is the collecting of DNA samples and fingerprints, which has been publicized as an effective solution to address the unrest. It is important for communication gaps to be bridged to minimize any conditions, which may have given rise to unrest in the Deep South.
The Director of the Cross Cultural Foundation (CrCF), Ms. Pornpen Khongkachonkiet, has inquired the officers about principles and procedure of DNA sample collection and testing and the reasons to collect fingerprints of all ten fingers since the issue is one among complaints received by the Foundation.
Ms. Anchana Himmeena from Duayjai Group, has inquired about the holding in custody of youth from Thamma Wittaya Foundation School. Apart from testing and collecting DNA samples and fingerprints, the youth had been subjected to solitary confinement and the holding cells used were meant for adults. One youth member was brought to Taskforce 41 during night time and was subjected to interrogation there from 20.00 until midnight.
Ms. Anchana has further inquired about during one search operation, the officers held a girl as an armor in front of them and forced her to knock on the door to call people inside while the officers were hiding behind her and even holding their shields. She asked if any mishap happened, i.e., some villains just shot at the girl in retaliation, what would happen and why the officers had done it this way?
Mr. Abdul Asit tade-in from the Young Muslim Association of Thailand (YMAT) has inquired about the case that the officers had persecuted PerMAS members and other persons under surveillance of the officers. The issue has to be addressed on the table and if it cannot be discussed here, there would be no chance to talk about peace. He also asked about reports concerning the invocation of Section 44 of the Interim Constitution to give power to competent officers to carry out drug suppression task and also conducting urine test, where it was true or not. Also, according to the previous practice, those tested positive shall be subjected to rehabilitation and prosecution. He asks if it is true that the military will have the power to carry out the urine test and to hold a person in custody to question them on drug use. If so, how a narcotic suspect shall be treated in comparison to suspects in security cases.
After the questions were asked by representatives from the civil society network, the officers have given their response on various issues. Pol Col Suthep Phattharawiwat from the Southern Border Police Forces referred to human rights principles and the Universal Declaration of Human Rights (UDHR) which contains 30 Articles, but he wanted to stress Article no. 2 that “Everyone is entitled to all the rights and freedoms without distinction of any kind, such as race” and Article no. 7 “All are equal before the law and are entitled without any discrimination to equal protection of the law”, which are in compliance with Section 4 of the 2014 Interim Constitution. Other previous Constitutions also placed importance on the principle of rights and freedoms including Section 28 of the 2007 Constitution concerning rights and freedom that states that “A person can invoke human dignity or exercise his or her rights and liberties in so far as it is not in violation of rights and liberties of other persons or contrary to this Constitution or good morals”.
According to Pol Col Suthep, no freedom can be exercised without boundaries. Provisions from the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) have also been incorporated into Thailand’s Constitution including Section 28(2) or Section 30 of the 2007 Constitution.
Pol Col Suthep said that the officers have never encouraged racial discrimination and have not come across the issue in the court verdicts. He affirmed that everyone is equal and believes this is simply a concern from civil society network.
As to how to reduce the use of special law, Pol Col Suthep said that the necessity to invoke the Emergency Decree on Government Administration in States of Emergency shall vary to the situations and it can be lifted anytime when peace is restored or if ordered by the cabinet. Nevertheless, the enforcement of such special laws has borne no effect on the majority of the people and it serves public interest.
Pol Maj Gen Pridi Phongsetthasan, Commander of the Southern Border Provinces Police Operation Center 10 and a representative from the Scientific Crime Detection Center 10 said that the use of forensic evidence plays an important role since it can hinder biases and prejudice, which may have led to the belief that certain individuals are the culprits. It will help give a lead to the real wrongdoer.
According to the Commander, in the past three years, forensic evidence has been put in use in the Deep South, not just on security related cases, but also other criminal cases and petty crime such as burglary, or felony crime such as rape or murder, drug cases. DNA does not just help to catch a perpetrator, it helps to protect an innocent person. Evidence from DNA sample collection and testing can be a piece of important evidence based on forensic science and it has no intention to bring harm to anyone, but to protect innocent persons.
As to the arrest of a youth student from the Thamma Wittaya Foundation School, one of the members of the arresting police said that the youth student had to be taken abruptly since he was staying with a person whom the authority had information that he was involved with planning a bomb. That person was suspected to be linked with a car robbed from Ruesao District and used in the bombing. Thus, the officers had to arrest the youth student to collect his DNA samples and to protect him from being harmed.
As to why the DNA samples and fingerprints had to be collected from the student from the Thamma Wittaya Foundation School, the officer had this to say;
“The reason I brought him out was I wanted to know how much he was involved (with the suspected person. But we could find any connection. I looked after him fine from the beginning until the end and had no biases against him. We simply wanted to warn him against getting involved. And during his custody, we collected anything that was needed” said the office.
Meanwhile, the representative from the Southern Border Provinces Police Operation Center responded to the allegation that the police used a child as their shield that it could happen from a lack of understanding and some disagreement among the arresting team. There used to be cases whereby when an officer searches a house and asked for examining ID card of the person in the house, the person refused to bring it to him. When the officer got inside the house in order to bring the ID card, he was shot dead. For this reason, it could be misunderstood that the officers used the child as their shield. In principle, he can confirm that neither children nor women would be used in such way.
Eventually, the Chairperson of the Cross Cultural Foundation (CrCF), Mr. Somchai Homlaor concluded by saying that it is important to use DNA sample collection and testing in such a way that makes people feel confident and assured that they would not be subjected to human rights violation. As for the use of a child as shield or the recruitment of a child as child soldier, whether by the state or terrorists, or by letting a child walk in front and knock the door, it has to be used carefully since it violates international law and by forcing the child to knock on the door, it may violate the Right of the Child Act and such practice shall not be tolerated.
Remarks: Facts about DNA sample collection and testing in the Deep South
1. At present, the DNA sample collection and testing has been performed mainly by two agencies; the Central Institute of Forensic Science under the Ministry of Justice and the Scientific Crime Detection Center 10 of the Royal Thai Police, both of which are state agencies
2. The collection of DNA samples was focused mainly on taking tissue from inside the cheek of a suspect in security related cases who is arrested invoking either Martial Law or the Emergency Decree. It is done prior to formally charging them, the act of which is not provided for by the laws. Still, the police who collect the DNA samples claim the suspects had agreed to sign their names to give their consent.
3. The Central Institute of Forensic Science has an office located in the Ingkhayudh Borihan Army Camp since 2007. CIRS has collected more than 120,000 DNA samples from all over the country, of which 90,000 come from people in the Deep South.
4. The Scientific Crime Detection Center 10 has started to seriously collecting DNA samples in 2012 and the Royal Thai Police decided that it should be based in Yala. Insofar, more than 50,000 DNA samples have been collected from the Deep South.
5. According to the criminal procedure, at the investigation level, the collection of DNA samples can only be performed by the inquiry officer or by the order of the Court on charges, which carry more than three years of imprisonment. DNA samples can only be collected only if it serves the interest of the law or as recommended by doctor or expert.
6. The officers claimed that the collection of DNA is a part of investigation process carried out by the officers invoking Martial Law and Emergency Decree. Though the laws do not specifically authorize them the power to do so, but it can be implemented as the persons who have undergone the test expressed their “consent” in writing.
7. The officers claimed that DNA sample and testing does not need to be performed by either a medical doctor or an expert. Therefore, any officer designated can do the job regardless of their ranks and positions, their being an expert or not.
8. Apart from DNA testing, a person can be forced to give fingerprint of ten fingers even though they are not yet alleged offenders.
9. At present, security forces have also started to perform DNA sample collection and testing.
10. The UN Subcommittee on the Elimination of All Forms of Racial Discrimination has asked the authorities to explain about the protection of the right to justice process in May 2015 and previously the National Human Rights Commission (NHRC) has launched a report claiming that the collection of DNA sample invoking Martial Law could give rise to human rights abuse and it should be subjected to review.
More information please contact
Pornpen Khongkachonkiet Tel. 02-6934939