FOR IMMEDIATE RELEASE
April 11, 2005
AS-39-2005
A Statement by the Asian Human Rights Commission
So where are Thailand’s judicial bodies?
Speaking last Friday, April 8, the head of Thailand’s newly-formed National Reconciliation Commission Anand Panyarachun said that the commission would not be acting to investigate the mass killings in the south of the country during the last year. “We are not a judicial body,” he is reported to have said.
Quite rightly, the commission is not a judicial body, and it should not be called upon to act like one. Reconciliation is a valuable and necessary goal, but an altogether different goal from prosecution. Neither can take the place of the other; nor are the two mutually exclusive. In fact, reconciliation rests upon a willingness to prosecute where necessary.
And so the question that persists is where are Thailand’s judicial bodies? Why haven’t they taken a role in addressing the mass killings of last year in order that the alleged perpetrators, not least of all the three army generals identified as primarily responsible for the 78 deaths in Narathiwat, be held criminally responsible for their actions?
This is a question that has been raised in one form or another by the Asian Human Rights Commission (AHRC) since the aftermath of the April killings, and again after October. It is a question that deserves repeating, as it is a vital one for which an answer still goes begging.
Certainly no answer to it is to be found in the 21 March 2005 note by the government of Thailand to the United Nations Office in Geneva, ‘Situation and incidents in Southern Thailand’. That document stresses that the government is concerned to uphold human rights and achieve reconciliation in the south, while neatly sidestepping all of its obligations as a party to the International Covenant on Civil and Political Rights (ICCPR), which mandates a role for judicial bodies. When states become parties to the Covenant, they undertake to provide legislative, judicial, administrative and other measures that will protect the rights it guarantees. If these measures are not undertaken, then joining the Covenant is meaningless. At home and abroad although the government publicly declares its commitment to human rights, without a role for judicial bodies, these are mere words which amount to nothing.
In his annual report, the U.N. Special Rapporteur on extrajudicial executions Philip Alston quotes a letter from the government of Thailand on the mass killing in Narathiwat to the effect that “where wrongdoing is found, those responsible would be held to account by due process of law”. So why does due process remain elusive? As if to underscore his concern, the Special Rapporteur goes on to remind us that, “The essential thrust of international human rights law is to establish and uphold the principle of accountability for measures both to protect human rights and to respond fully and appropriately to violations of those rights. If measures are not in place to prevent and to respond to extrajudicial, summary, and arbitrary executions, they are unlikely to be effective in responding to other human rights violations either.” He continues
“Governments which are criticized for violating the right to life under human rights law or for failing to respect humanitarian law by killing civilians who are not directly taking part in hostilities sometimes announce that they have initiated an investigation into the relevant incidents. In such cases it is essential that the results of the investigation be published, including details of how and by whom it was carried out, the findings, and any prosecutions subsequently undertaken. Broad, general statements of findings, or non-disaggregated information as to the number of investigations and prosecutions, are inadequate to satisfy the requirements of accountability in such contexts. Formalistic investigations are almost always the precursors of a degree of impunity.”
A more accurate summary of what has gone wrong in Thailand since the mass killings in the south of 2004 would be difficult to find. Government-appointed panels have in each instance been quickly deployed to offset the role of judicial agencies. Findings have not been made public. Paltry compensation is being used as a device to mollify victims and their families. None of this protects human rights.
The 1997 Constitution of Thailand has been called progressive. However, the making of a constitution is only a preliminary exercise. Its test lies not in its contents but in what is done to assert the rights it proclaims. Where laws and agencies do not accompany these, a constitution is insignificant. While even in several other Asian countries there are some means by which people who suffer human rights abuses can seek redress by directly appealing to higher courts on constitutional grounds, no such avenue exists for citizens of Thailand. They are all too easily denied the right of redress that their government has guaranteed to provide under the ICCPR.
Only the judiciary can legitimately investigate the mass killings in the south of Thailand, and for that matter, the other numerous extrajudicial killings that have occurred in the country during recent years. This is properly its role and its role alone. It is under the umbrella of the judiciary that human rights can develop to their fullness without executive interference. Let the National Reconciliation Commission rightfully continue its work, but let it also be understood that no number of government-appointed commissions can preclude or replace the role of the judiciary. So again let it be asked, where are Thailand’s judicial bodies?
