Access to Justice Constraints Fuel Conflict in Southern Thailand

April 23, 2014

By Kim McQuay

Access to justice, security, and human rights protection rank among the core issues that fuel the protracted subnational conflict in southern Thailand and are central to the prospect of its future resolution. For the last decade, the southern border provinces of Yala, Narathiwat, and Pattani have faced a resurgence of an indigenous, ethno-nationalist conflict whose origins date to the early 20th century. Since the resumption of the conflict in 2004, bomb attacks, assassinations, revenge killings, and other acts of violence committed on both sides of the conflict have claimed nearly 6,000 lives and injured over 9,500 people.

Since the resumption of the conflict in 2004, bomb attacks, assassinations, revenge killings, and other acts of violence committed on both sides of the conflict have claimed nearly 6,000 lives and injured over 9,500 people. Here, forensic police investigate a crime scene. Photo/Atist Pawakarakun

The conflict spans the Thai-Malaysia border region, where the majority of the local population is ethnically Malay-Muslim and has a distinctive ethno-religious identity and history that predates the contemporary geopolitical boundaries of Thailand by several centuries. While the Malay-Muslim population is a significant majority in the South, it represents a small percentage of the national population.

Separatist violence is rooted in unresolved Malay-Muslim grievances with the Thai state. These core grievances include: the failure of national political leaders to acknowledge and respect the unique cultural identity of the local community; systematic discrimination in local governance and social service delivery; political marginalization; and a record of human rights and other abuses of the local population by security forces and other national government authorities for which few of those responsible have been brought to justice. Until recently, the State’s response to the southern conflict has been largely propelled by security considerations, with successive governments failing to acknowledge the need for fundamental changes in State policy and perspectives or to offer reasonable concessions that respond to deep historical discontent.

Malay-Muslim grievances related to human rights, public security, and access to justice span the formal justice system, the informal sector, and issues related to the special emergency powers in effect in the conflict region. Constraints on access to justice are one the bitterest grievances of the Malay-Muslim population, as reflected in limited legal representation, obstacles at multiple points in the criminal justice chain, lengthy pre-trial and arbitrary detention under the emergency powers laws, and lack of accountability on both sides of the conflict with respect to violence and abuse of power. A persistent culture of impunity contributes to the low confidence that Malay-Muslims place in the capacity and resolve of the formal justice system to deliver fair outcomes for the local population, and sharpens their mistrust of security personnel.

In February 2013, the Thai Government and representatives of the Barisan Revolusi National (BRN) separatist movement announced their agreement to engage in a peace dialogue facilitated by Malaysia – the surprise arrangement signaling a tacit acknowledgment by Thailand’s government that the southern conflict is political in nature. By late 2013, the Government and BRN had temporarily abandoned the nascent peace process due to a combination of factors, including the resolve of the BRN negotiators and a national political crisis that diverted the attention of political leaders in Bangkok. Notwithstanding the fate of the short-lived process, communities in the South that had previously treated dialogue of any kind as the exclusive domain of the government and insurgent groups became increasingly bold in their call for opportunities to voice their views and expectations for future peace – including greater access to justice. The BRN negotiators identified injustice among their most pressing points of negotiation, and these issues are certain to figure prominently in future peace initiatives that resume the recent dialogue or chart a fresh course. Future dialogue on criminal justice administration, transitional justice, and related issues among a diverse range of public and private sector actors will be essential to improve accountability, advance justice and security, and ensure that agreements related to transitional or alternative justice mechanisms and rights protection are carefully monitored and observed in practice.

Welcome signals of progress and fresh thinking kindle hope. The Office of the Attorney General’s principal public prosecution unit in southern Thailand recently conducted a landmark internal performance audit to assess the effectiveness of state prosecution of security-related cases. A review of cases registered between 2004 and 2012 affirmed the impact of specialty forensic investigative capacity development among police, public prosecutors, and other authorities in reducing both the number of cases filed and the number of cases dropped for want of sufficient evidence, and in increasing conviction rates. These findings reflect the care taken by public prosecutors in determining when to press charges and ensuring that cases filed are based on credible evidence gathered through forensics and other enhanced investigative procedures. The Office placed many of its research findings in the public domain, demonstrating its commitment to ensuring procedural rigor, professional integrity, and transparency, the combination of which has contributed to improved access to justice and increased public confidence in the system. The findings and recommendations of the internal audit led the Office to establish the Special Unit for the Prosecution of Security-Related Charges in Southern Thailand, to which an elite cadre of experienced prosecutors has been assigned and received special training. [Read about The Asia Foundation’s support for forensic capacity-building in a recent blog.] Other criminal justice and security agencies have demonstrated a similar readiness to respond to Malay-Muslim calls for greater access to justice. Examples include collaboration between the military, police, and public prosecutors to improve investigative procedures and forensic evidence collection, and between other stakeholder groups in studying alternative justice mechanisms that can potentially fill gaps and reduce flaws in traditional criminal justice procedures, contributing to an enabling environment for future peace efforts.

While many challenges remain, these and other positive signals of change in understanding, attitude, and service delivery standards will help to restore Malay-Muslim confidence in the sincerity of state agencies and officials, and contribute to the further transformation of state practices that is essential to the prospect of enduring peace in southern Thailand.

The Asia Foundation works with criminal justice agencies, academic institutions, civil society organizations, and the media in southern Thailand to promote improved access to justice. Read more about the Foundation’s conflict mitigation work.

Kim McQuay is The Asia Foundation’s country representative in Thailand and 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.

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