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ACHR Human Rights Report for Thailand
Feb 2006

[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR)]
C-3/441-C, Janakpuri, New Delhi-110058, India
Tel/Fax: +91-11-25620583, 25503626
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Index: Review/82/2005
Embargoed for: 20 July 2005

A Good Case: NHRC of Thailand

Among the ASEAN countries, Thailand has been facing the most serious human rights challenges with the increase of human rights violations both by the insurgents and the security forces in Southern Thailand. Even prior to the upsurge of insurgency in Southern Thailand, Prime Minister Thaksin Shinwatra had taken regressive measures in clear violation of the 1997 Constitution of Thailand and its obligation under international human rights law. Whether it is the war against drug or recent seizure of absolute power under “Emergency Decree on Public Administration in Emergency Situation, B.E. 2548” of 15 July 2005, Thaksin Shinawatra’s administration has shown little respect for principles of due process of law, rule of law and parliamentary democracy.

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The role of the National Human Rights Commission of Thailand remains wanting but despite its statutory limitations and inadequate financial resources, its role in comparison to its counter parts in the Asia Pacific region, has been commendable. It is commendable not ONLY because NHRC of Thailand called for scrapping of the Emergency Decree, which it termed, as a blank cheque inviting the Prime Minister to go on an unlimited and unscrutinised “power invoking spree” with immunity for officials from criminal, civil and disciplinary responsibilities. It is commendable for systematically raising human rights awareness in the Kingdom, making appropriate interventions in cases of human rights violations and its attempts to safeguard the rights of the victims of human rights violations. Its report, “Assessing Thailand’s Compliance with the Obligations under the International Covenant on Civil and Political Rights” presented before the UN Human Rights Committee on 18 July 2005 has been equally commendable.

I. Statutory weaknesses and parliamentary dictatorship

Section 15 of the National Human Rights Commission Act B.E. 2542, among others, empowers the National Human Rights Commission of Thailand “to examine and report the commission or omission of acts which violate human rights or which do not comply with obligations under international treaties relating to human rights to which Thailand is a party, and propose appropriate remedial measures to the person or agency committing or omitting such acts for taking action. In the case where it appears that no action has been taken as proposed, the Commission shall report to the National Assembly for further proceeding”.

Under section 28 of the Act, if the National Human Rights Commission, after examining the complaints or allegations of human rights violations, is of the opinion that there is a commission or omission of acts, which violates human rights, the Commission shall prepare a report of the examination. The Commission may direct a person or agency to perform duties by appropriate methods to prevent a recurrence of similar human rights violations and under section 29, the violator of human rights-either person or agency, on receipt of examination report of the NHRC, is required to implement the remedial measures directed by the Commission for solving the human rights violations with in a period as specified by the Commission and also notify the results of implementation to the Commission.

As per section 30, in case the violator or abuser of human rights fails to implement the remedial measures as directed, the Commission shall report to the Prime Minister to order an implementation of the remedial measures with in sixty days of reporting.

The response of Prime Minister Thaksin Shinawatra and his Cabinet members towards NHRC has been contemptuous. As the following case studies show, Prime Minister Thaksin Shinawatra and his party, Thai Rak Tai openly question the mandate of the Commission. Not surprisingly, when subpoenas were sent to officials, especially those related to the nation’s security apparatus, the government officials ignored the NHRC.

Case 1: Threatening to impeach Pradit Charoenthai-tawee for reporting on human rights violations

On 5 March 2005, Suranan Vejjajiva, spokesman for the ruling Thai Rak Thai Party warned that his party might campaign for impeachment of Dr Pradit Charoenthai-tawee, a member of the National Human Rights Commission for after speaking at an international seminar about the government's drug blacklists, alleged extra-judicial killings, and an alleged failure to bring to court cases involving drug-related deaths. The NHRC member and his family members also reportedly received threatening phone calls from unidentified callers.

Case 2: Disrespect of the NHRC report on crackdown on protesters against the Thai-Malaysian Gas Pipe line Project

On 27 August 2003, the ruling Thai Rak Thai Party accused the National Human Rights Commission of violating its constitutional mandate when it held a hearing into the December 2002 crackdown on a protest against the Thai-Malaysian gas pipeline project. Following the violent police crackdown on protesting villagers in December 2002, the NHRC opened a hearing into the matter. Member of Parliament and legal adviser of the ruling party, Wichit Plangsrisakul claimed NHRC had no mandate to intervene in the matter as the courts were reviewing disputes arising from the project in view of the prohibition provided under section 22 of the National Human Rights Commission Act of 1999. The ruling party had reportedly petitioned the House speaker to request a judicial review of the NHRC's alleged violations. Subsequently on 10 September 2003, the issue was put to vote in the House of Representatives asking the Constitutional Court to make a ruling on the legitimacy of the National Human Rights Commission (NHRC) report. The ruling Thai Rak Thai party that enjoyed absolute majority in the House pushed through the move with 280 members voting in favour of the move of the ruling party.

Opposition and non-governmental organisations attacked the move, condemning it as a move to evade the checks and balances that independent agencies provide. Opposition MPs objected to the move and walked out of the meeting shortly after the vote was called. Democrat Party spokesman Ongart Klampaiboon charged, “the government is resorting to parliamentary dictatorship to reject the report [by the National Human Rights Commission] because it does not want the House to debate the government's flaws, and [the finding] that it had violated human rights.” Deputy leader of the Party Abhisit Vejjajiva also condemned the government's use of the House to evade the checks put up by independent agencies.

II. Towards fulfilling its mandate

Unlike some of its counterparts in the Asian region, the NHRC of Thailand does not have the power of a civil court with regard to “(a) summoning and enforcing the attendance of witnesses and examine them on oath; (b) discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses or documents; and (f) any other matter which may be prescribed”. This has hampered the functioning of the NHRC of Thailand. Yet, it sought to fulfill its mandate as the following cases illustrate.

a. Rights violations arising out of undertaking of development projects

Case1: The Thai-Malaysian Gas Pipeline Project Case

Upon numerous complaints from the people living in and around the area where the Government of Thailand approved to build a natural gas pipeline and a separation plant in 1998 in the southern province of Songkla, to the effect that the project threatened their way of life and would destroy their food sources, the National Human Rights Commission conducted a study on the project. The NHRC found that the process of public hearing and the conduct of Environmental Impact Assessment (EIA) by the Government were not fair and the access to information about the EIA study to the public was very limited. The NHRC therefore recommended to the Government that the project should be reviewed to solve the problems, but the government did not pay any heed to the recommendations.

Seeing that the Government was not addressing their grievances, the people planned to submit a petition to the Prime Minister Thaksin Shinawatra during the Thai-Malaysian Cabinet meeting in Hat Yai District of Songkla Province. On 20 December 2002, in order to disperse the protesters police beat them up resulting in injuries of several and the arrest of 12 NGO members.

The NHRC investigated the police crackdown and found that the use of force by police in dispersing the peaceful and unarmed assembly was disproportionate and unjust. The Commission also found that the 12 detainees were neither allowed to meet, consult and have their lawyers attend interrogations nor did the police officers inform their relatives of the place of detention, nor allowed them to visit, and later charged all the 12 with several criminal offences.

As a redress, the NHRC recommended to the Government to give compensation to the people who were injured and whose properties were damaged in the police crackdown on 20 December 2002. The Government was also recommended to provide necessary compensation and assistance for local people whose life is affected by the project. The Commission further recommended that the Government should involve the affected people in decision-making process in accordance with the Constitutional guarantee, identify a clear process of public hearings and adopt basic rules and practices in dealing with public demonstrations with due respect for peoples’ right to peaceful assembly.

Case 2: Recommendation to government for closing lead mines and compensating the victims of hazards

Recognizing that the basic rights of the residents of Lower Klity village in Kanchanburi province have been violated by the hazardous mining operations in the area, on 7 November 2001, the NHRC urged Prime Minister Thaksin Shinawatra to revoke all mining concessions in the western forest complex. The NHRC also called for proper medical treatment for residents who, since 1998, have been found by the Department of Health to have high levels of lead in their blood. The Commission’s intervened after finding solid evidence that mining operations in Kanchanaburi had contaminated the soil with lead, a substance extremely dangerous to people. A fact-finding team of the Commission reportedly visited two lead mines, Kemco and Klity, located in Tung Yai Narasuan Wildlife Sanctuary in early November 2001. According to the team, a large area of the sanctuary had been illegally converted into a dumpsite for Kemco waste and the lead could seep into underground water tables or be washed into waterways by rain, the commission said.

b. Intervention of NHRC in extra-judicial killings, torture and illegal detentions etc.

Case 1: NHRC report on war-on-drug related human rights violations

In 2003, the National Human Rights Commission expressed serious concerns over the disproportionate cases of human rights violations including extra-judicial killings, disappearances, arbitrary arrest, detention and torture during the Thai Government’s war on drugs which commenced in February 2003. Despite its limited resources, the National Human Rights Commission investigated hundreds of cases of human rights violations and on 25 November 2003, produced a report on the series of human rights violations during the war on drugs and submitted it to the prime minister. Because of its small staff, the Commission did not have the capacity to investigate each allegation it received relating to extra-judicial execution, police abuse, improper inclusion on a blacklist or watch list, or other human rights violation.

The NHRC’s report underlined four major problem of the government’s war on drugs related to the blacklisting of drug suspects, arrests, extrajudicial killings and asset confiscation. The Commission said that the method used to draw up the blacklists had been arbitrary and willful, as many people who had nothing to do with the illegal drug trade had appeared on the lists. According to one of the Commissioners of the NHRC, most names were drawn from the results of community meetings, which offered an opportunity for officials with conflicts to enter the names of people unrelated to the drug trade. Relatives and friends of those accused are also lumped into the same category. And ethnic minorities were subjected to stereotyped beliefs that they were also involved in the drug trade.

The NHRC summary concluded that some people had been arrested simply because they were accused by others who were already in police custody and were forced to implicate. In many of the cases, evidence had been allegedly fabricated, and the government had no evidence backing the arrests of many people on the day drug-related killings took place. The report further stated that on some occasions, there had been no proper investigation before the assets of suspects were confiscated. According to a Commission member, some of the assets were inherited or accumulated over decades and the confiscations included items necessary to daily existence, such as refrigerators and telephones. A total of 2625 murder related cases were filed.

Case 2: NHRC demands prosecution of officials responsible for Tak Bai massacre

On 25 October 2004, at least 78 persons were suffocated or crushed to death after being arrested and packed into trucks by security forces for transportation to military barracks in Pattani, the provincial capital of Narathiwat. About 2000 people were demonstrating demanding the release of 6 detainees. The security forces resorted to firing to quell the protesters. Six protestors were killed on the spot and several others were believed to have been injured. The military officials had arrested at least 1300 persons and loaded in army vehicles and transported to Pattani. 78 demonstrators were found death on reaching Pattani. Manit Suthaporn, deputy permanent secretary of the Justice Ministry, said that the victims probably suffocated because they were piled on top of each other in the vehicles. On 4 May 2005, the National Human Rights Commission made the following recommendations to the Royal Thai Government on the Tak Bai massacre: -

1. Since the acts of authorities and officials violated human rights, the Government must provide compensation to the victims and concrete measures to redress the situation. It must also prevent any recurrence of incident that human rights are seriously violated, and bring those who were responsible to the incident to justice.

2. Concerning the continued violent situations in the South, the Government should review its policy and ensure that it corresponds to the real situation. Particularly, it requires officials to adjust their attitudes to appropriately recognize and respect the differences in thoughts, cultures, and religious beliefs.

3. The government should make a clear policy statement not to use violence in solving the problem, build up the participatory process of local people, and create understanding with all parties at all levels in order to bring trust and unity.

Earlier a government committee headed by Pichet Soontornpipit that investigated the death of the 78 protesters at Tak Bai also reported that there were serious dereliction of duty on the part of senior military officials like Lt-General Pisarn, the highest authority of the area under martial law, Maj-General Chalermchai Wiroonphet, then commander of the Fifth Infantry Division, Maj-General Sinchai Nutsatit, the then deputy commander of the Fourth Army Region.

c. Protection of rights of migrant workers, ethnic minorities and refugees

Case 1: NHRC prevents forceful repatriation of Hmong refugees

On 8 July 2005, following the intervention of the National Human Rights Commission, the Royal Thai Government halted its plan of forceful repatriation of the 6,558 Hmong indigenous refugees to Laos. The decision was taken reportedly following a meeting of security agencies, including the National Security Council and National Human Rights Commission, with Deputy Prime Minister Chidchai Vanasatidhya. Earlier, in a meeting in early July 2005, the National Security Council and the Police Immigration Bureau had decided to forcefully repatriate the refugees from Laos who have been sheltered at Ban Huay Nam Khao in Phetchabun province. The refugees, including children, women and the elderly, have since then been living on the roadside, about 5km from Huay Nam Khao village in Khao Kho district. They used canvas sheets for protection from the sun and rain after they were evicted from bamboo houses they had built in the village.

The NHRC of Thailand has a long way to go. With complete disregard for human rights standards by the Thaksin Shinawatra government, the challenge its maintaining its independence. Effectiveness in more than one way depends on the individual members of the Commission and selection of future members will be crucial.

Copyright 1991 The Akha Heritage Foundation