The recent decision of the Supreme Court to uphold a ruling of the appellate court that acquitted five police officers in connection with the disappearance of lawyer Somchai Neelapaijit epitomises the fact that the court has followed the old judicial principle that seeks to protect state rights and impunity, rather than the right of the victims and their families.
In dismissing the officers -- Pol Maj Ngern Thongsuk, Pol Lt Col Sinchai Nimpunyakampong, Pol Sgt Maj Chaiyaweng Phaduang, Pol Sgt Randorn Sitthikhet, and Pol Lt Col Chadchai Liamsa-nguan (whose name was later changed to Napanwuth) -- in the marathon lawsuit, the court has crushed the hope of rights advocates that it would set a new standard for Thai justice regarding cases of enforced disappearance.
But in upholding the 2011 verdict, the court rejected the request of Somchai's family to be a co-plaintiff and continue the investigation into his disappearance as a murder case because "there was no evidence that the lawyer was dead". It also refused to accept a document with mobile phone communication records of the five police officers on the day Somchai went missing. It's understood the telephone records might indicate a conspiracy involving the violent coercion of Somchai who was allegedly seen being pushed by the five defendants into a car on Ramkhamhaeng Road in March 2004.
His disappearance was said to be linked to his role in assisting Muslim insurgents in southern Thailand who claimed they had been tortured by the police officers.
In January 2006, the court found one officer, Pol Maj Ngern, guilty of coercion and gave him three years in prison, while freeing the remaining four. Pol Maj Ngern later disappeared in what was said by his family to be a mining accident in Phitsanulok.
Instead of being a travesty, the case of Somchai's disappearance has become a demonstration of the Thai state's capacity to protect itself. Two facts stand out.
Firstly, the phone records show an unusually high level of calls by the police officers on the day Somchai went missing, including one to the Prime Minister's Office as well as to other numbers blacked out in the phone records.
However, the authenticity of the phone records was challenged by the Supreme Court as they were not the original nor a certified copy. The route by which the family obtained the phone records was indeed circuitous because the records were difficult to obtain through legal means. However, the Supreme Court did not accept expert testimony by the police officer who obtained the records and the telephone company that the records were genuine.
We will never know to whom those blacked-out numbers belong, will never have a chance to investigate who that person was at the Prime Minister's Office who received that call and what was said during the call.
Second, in January 2006, one day after the court ruling against Ngern came out, then prime minister Thaksin Shinawatra spoke out on the disappearance. His exact words are worth repeating: "I know that Somchai is dead, and more than four officials were involved, but witnesses and evidence are still being collected."
Thus, there is a motive, and there is confirmation by the then most senior politician in the land, who is an ex-police officer, of the death. There would appear to be grounds for investigating a possible conspiracy, which is why the public prosecutor's office took up the case.
By saying that there was no evidence that Somchai was dead, the Supreme Court did not consider the statement given by the former prime minister. Instead, the court in effect ruled that evidence of murder is necessary in a case of enforced disappearance -- either a smoking gun or the body itself.
The question that then logically arises is where Somchai is now if he was not killed. A dedicated and successful human rights lawyer, Somchai was president of the Muslim Lawyers Club of Thailand and vice-president of the Human Rights Committee of the Law Society of Thailand. He was a happily married man with five high-flying children, one of them now a judge at the Supreme Court herself. But to date, no one has been able to suggest any motive for him to suddenly disappear.
While Thailand has signed the International Convention for the Protection of All Persons from Enforced Disappearance, it has not ratified it, meaning it is not in force. There is no national legislation concerning enforced disappearances. The result is there are at least 60 people missing in Thailand, including about 20 missing ethnic Thai Malay people in the deep South provinces, approximately 10 missing ethnic Thai Lahu and one missing Thai Karen, Porlajee "Billy" Rakchongcharoen.
It is not that successive governments and wider society are not unaware of the problem. There is, indeed, considerable pressure, both within the country and from the international community, for Thailand to pass a Torture and Enforced Disappearances Prevention and Suppression Bill, sponsored by the Ministry of Justice.
The bill which is still with the cabinet would seek to reduce enforced disappearances by criminalising torture and enforced disappearances.
The criminalisation of torture is necessary to prevent one of the reasons behind such disappearances, namely the logic whereby disappearances become easier to account for than evidence of torture.
Passing this bill would greatly enhance the image of the country. Unfortunately, the court ruling means at present the state has a licence to make people disappear.
Finally, even if the bill is eventually passed into law, a key question is whether it would cover past cases, as Thai laws are typically not retroactively applied.
However, the missing remain missing, and backdating the legislation would give the Supreme Court the authority to prove the Thai legal system can balance the rights of individuals against those of the state.
John Draper is project officer, Isan Culture Maintenance and Revitalisation Programme (ICMRP), College of Local Administration (COLA), Khon Kaen University. Peerasit Kamnuansilpa, Phd, is founder and former dean of the College of Local Administration, Khon Kaen University.