The government needs to study the hard lessons learned from the use of special laws in the southern border provinces before it considers expanding the use of the Internal Security Act (ISA), say experts.
Authorities should also gather input from civil society activists who have dealt on the ground with the impacts of special laws, said speakers at a seminar on the decade-long conflict.
The Internal Security Operations Command (Isoc), with the support of the Yingluck Shinawatra government, is considering expanding the scope of the ISA before the emergency decree now in use in the three provinces expires in mid-March.
Somchai Homlaor sees parallels in South with Thamassat 1976. (Post File Photo)
Authorities are especially interested in testing the effectiveness of Section 21 of the ISA, under which suspected insurgents could escape prosecution if they surrender and agree to other terms.
Somchai Homlaor, a member of the Law Reform Committee, said the use of special laws over the past decade had clearly bred further violence.
He pointed to records showing that 70 DNA samples from people involved in post-Tak Bai violence matched the samples authorities took from more than half of the protesters in the original Tak Bai incident, Mr Somchai said.
About 3,000 people gathered on Oct 25, 2004 in front of the Tak Bai police station in Narathiwat to demand the release of six volunteer village guards when the military began its crackdown.
Authorities rounded up protesters and transported them to military camps in other provinces in overcrowded trucks, and 85 people died en route.
"This reminds me of the similar consequence of the October 1976 massacre inside Thammasat University. Most students and intellectuals had no other choice but join the jungle guerrilla warfare campaign against the Thai state with the former Communist Party of Thailand," said Mr Somchai, who himself was assaulted and humiliated by pro-military thugs during the Oct 6 incident.
The situation in the South was worse with more assaults like the Krue Se and Tak Bai events, with knock-on effects that drove a bigger wedge between the people and the authorities, he said.
Martial law and the emergency decree were key factors, but the mindset of the security authorities was just as much of an impediment to peace, he said.
The Thai state needs to open more common political space for all, he added, even if some of the participants were engaged in violence before.
In replacing the current special laws with the ISA, Mr Somchai said, the government should not think only of political gain. It must ask itself how sincere its intentions are, and how practical implementation will be.
Section 21 allows the accused an opportunity to reform in a training camp for a period of six months.
Isoc officials believe the use of Section 21 might produce results similar to those of the successful amnesty programme that led the Communist Party of Thailand to end its campaign against the state three decades ago.
Sunai Phasuk, the Human Rights Watch representative in Thailand, said the fact that a key militant killed on Feb 13 in Narathiwat's Bacho district was a victim of Tak Bai showed that people were still disturbed that the military wrongdoers from 2004 have never been punished.
Desire for revenge is still strong in South, says Sunai Phasuk. (Post File Photo)
Disciplinary punishment such as transfers out of the area for some officers, Mr Sunai said, had not been publicised so people did not know the authorities had also been reprimanded.
Revenge and anger were therefore still prevalent among the people, he said. It was natural for local people to feel they were the victims of the conflict because of the 5,000 deaths in the past 10 years, only about 300 have been soldiers or other government figures, he said.
Mr Sunai suggested that the government plug the loopholes of the special laws by revoking them and bear in mind the flaws of the ISA that was supposed to be applied down the South.
Anukul Aweaputeh, the president of the Muslim Attorney Centre Foundation (MAC), noted one study showing that in arrests resulting from interrogations and detention under special laws, there was a 90% acquittal rate due to a lack of strong evidence.
The MAC audited another 100 cases in a one-year period from 2010-11 and found that 72 were later dismissed, he added.
Thammarat Alilateh, 30, said he was a victim of the emergency decree as he was accused of seven bombings in Yala on Nov 28, 2007.
Mr Thammarat, a graduate of Rajabhat University Yala Campus, was detained for 16 days before appearing in court. He was subsequently sentenced to two years and three months in prison.
He and nine other people were finally acquitted by a court on Dec 28, 2012. But because he has formed a group of helping other victims of the security laws, he was often threatened by the military, he said.
He was detained under the emergency decree for a week last year, only to be interrogated about old incidents in which he was not involved.
Ismaael Teh, 28, was also a victim of the special laws, but he took his case to the court. A computer student at Rajabhat University Yala, he said he was arrested under martial law in January 2008 and detained for nine days.
During detention, he was tortured by being stripped naked in an air-conditioned room, hit on the head and back, hanged near the electrical pole and showered with water to make him confess.
He was examined by foreign doctors under the Istanbul protocol and a year later he lodged a civil lawsuit in Bangkok but the court transferred his case to the Administrative Court in Songkhla. The latter ruled in November 2011 that the army had to compensate him for 125,000 baht per day for two days that he was being detained beyond what the martial law allowed.
"I don't want just the 250,000 baht," said Mr Ismaael. "My point is torture, so both the army and I will appeal. We are now waiting for the justice."
Benjamin Zawacki, a representative of the International Commission of Jurists (ICJ), said that usually martial law was allowed during times of disaster and war and could be used proportionately due to necessary situations.
The problem in southern Thailand was that it was used along with the emergency decree, exposing the accused to human rights infringements, said Mr Zawacki.
He said the ISA should be considered a positive step, but determining the proper scope and details for using Section 21 was very important.
Pornpen Kongkiatkachorn, the coordinator of the Cross Culture Foundation, suggested that the authorities review related procedures to ensure the effectiveness of the law and ensure that people's rights would not be compromised.
The ISA, despite its flaws providing absolute power to Isoc, limited scrutiny by the courts, and greater role of military in plea bargaining, has been considered more appropriate than martial law and the emergency decree, said Ms Pornpen.
However, since the ISA was imposed in four districts of Songkhla in November 2009 and a year later in one district of Pattani, only four people have surrendered.
Replacing martial law in selected districts with the ISA would not work, she said, so the ISA should be implemented across the board, such as in the whole province.
According to the military Peace Protection Centre, from July 21, 2005 to Jan 21, 2013, a total of 2,391 suspects were detained under the emergency decree. Of the total, 1,813 were later released while 571 were prosecuted. Seven remain in custody.
Statistics from the Office of the Attorney General from 2004 to June 30, 2012 showed that all 934 security–related cases were prosecuted but another 465 cases were dropped.
Of 934 cases, verdicts were delivered in 162 trials, while 152 resulted in acquittals. There are 115 cases still before the courts.