On April 24, the government of Thailand submitted the country’s candidacy for the new UN Human Rights Council. The election of the council’s first members is planned for May 9. The election should be viewed as a good opportunity for serious examination of the human rights records of candidates, including Thailand. In this respect, Thailand’s voluntary pledges and commitments on human rights, submitted together with its candidacy, deserve close scrutiny. The document containing these can be downloaded from the UN website: http://www.un.org/ga/60/elect/hrc/thailand.pdf.
The Asian Human Rights Commission (AHRC) holds that Thailand’s candidacy to the Human Rights Council should be contingent upon four conditions:
1. That it ratifies all key international human rights treaties, especially the Convention against Torture.
2. That it actively implements recommendations by treaty bodies, especially those of the Human Rights Committee.
3. That it issues standing invitations to all UN human rights officials and bodies, and guarantees them unimpeded access anywhere in the country.
4. That rights guaranteed under its constitution be made enforceable in courts of law.
The AHRC offers the following assessment of Thailand’s candidacy with reference to these four conditions.??lt;br />
CONVENTION AGAINST TORTURE MUST BE RATIFIED
Members of the Human Rights Council should have ratified all the key international human rights treaties. The making of a binding commitment under international law is the starting point for implementation of universal standards at home. It also allows a country to participate fully in global forums on human rights, among which the council will be paramount.
Thailand’s candidacy to the council must be contingent upon it ratifying the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In its pledge, the government states that “Thailand is considering becoming party to the Convention against Torture”. But what does “considering becoming party” really mean? The problem is that Thailand has been considering becoming party for a long time now. Human rights defenders concerned with the incidence of torture in Thailand have lost count of how often they have heard that the country would soon become party to this convention. Yet the government has never given any good reason as to why it has so far failed to ratify, and why it has taken so long to consider becoming party. There is no justification for this delay. The AHRC is aware that all necessary preparations have long been underway to make changes under domestic law. And under any circumstances, it has said time and again that there are no obstacles to Thailand ratifying the Convention against Torture at once, with a grace period before bringing it into effect. Thailand must above all ratify the convention if it is to earn a place on the council. To consider being party is not enough.
Thailand’s candidacy to the council must also be contingent upon it ratifying the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Thailand ratified the covenant in 1996. In doing this, it agreed to bring the principles it embodies, central to the international bill of human rights, into domestic law and institutions. It also committed itself to affording its citizens an objective body of standards upon which to establish their rights. However, Thailand has not ratified the protocol, which allows individual complaints to the UN Human Rights Committee where all available domestic remedies have been exhausted. This means that although in principle its citizens may refer to a normative body of rights as grounds for obtaining redress in practice they are limited to domestic laws. Where these are inadequate, the private citizen cannot seek legally-binding redress outside the country. Only the government has direct access to the committee, through reviews of its periodic reports. As the protocol follows logically from article 2 of the covenant–which provides that parties put in place measures for remedies where rights are violated–the government of Thailand should entitle its people the right to lodge individual complaints with the committee. It therefore must ratify the optional protocol to give full effect to the ICCPR. ?lt;br />
RECOMMENDATIONS OF TREATY BODIES MUST BE IMPLEMENTED
Members of the Human Rights Council should have a demonstrated commitment to implementing the recommendations of UN human rights officials and agencies, especially treaty bodies. By joining a treaty, a country is bound to observe its provisions. It follows that as treaty bodies are the agencies responsible for monitoring enforcement, their recommendations carry significant weight. Parties should only refuse to implement recommendations where adequate reasons are given which comply with international human rights norms. The members of the new council above all others must be scrupulous in setting this standard.
Thailand’s candidacy to the council must be contingent upon it giving evidence of real efforts to implement the recommendations of treaty bodies. In its pledge, the government states that, “Due regard is given to the observations and recommendations made by… treaty bodies.” But what does “due regard” really mean? The AHRC is aware that the government has made efforts to protect its international reputation by sending many delegates to meetings with treaty bodies and carrying their recommendations; however, it has seen no evidence of active attempts to implement their findings. Instead, the government has been keen to rebut their conclusions. Under these circumstances, treaty bodies are rendered meaningless.
Among the treaty bodies from which Thailand has received recommendations in recent times, perhaps the most important are those of the Human Rights Committee. In 2005, the committee examined Thailand’s compliance with the ICCPR and made many important detailed observations. Has the Thai government’s “due regard” for its observations been translated into reality?
In paragraph 10 the committee expressed concern at widespread extrajudicial killings in Thailand, including the mass deaths in the south in April and October 2004, “the extraordinarily large number of killings during the ‘War on Drugs’ which began in February 2003”, and the concomitant culture of impunity. The committee said that there was a lack of remedies for victims of such killings in Thailand. It recommended “full and impartial investigations into these and such other events” leading toward criminal prosecutions, redress for victims and families, and for the government to “actively pursue the idea of instituting an independent civilian body to investigate complaints filed against law enforcement officials”.
No investigations leading to criminal prosecutions have ever been conducted regarding the 2004 killings in the south of Thailand. Instead, politically-appointed inquiries were used to displace the legitimate role of the judiciary and blunt public outrage. And in a cruel irony, victims of abuse are on trial instead, with the military and police officers responsible for mass murder appearing as prosecution witnesses. Virtually none of the over 2500 killings of alleged drug dealers in 2003 have been properly investigated or perpetrators arrested. There has been no examination of the government policies and institutional defects that allowed for these killings. There is no evidence that the government is even considering setting up an independent body to investigate complaints. As it stands, the only national investigating agency not under full control of the police–the Department of Special Investigation, under the Ministry of Justice–has been an unremitting failure for human rights in Thailand. Headed by a police general, it has only served to protect perpetrators and further embed impunity.
In paragraph 15 the committee expressed concern at widespread use of torture and excessive force by law enforcement officers in Thailand, and again, the concomitant impunity enjoyed by the perpetrators. It recommended full access to doctors and lawyers for detainees, medical examinations, “prompt and effective remedies to allow detainees to challenge the legality of their detention”, and investigation of all cases of torture and ill-treatment, leading to prosecution of perpetrators and compensation for victims or their families.
No Thai police officer has ever been criminally investigated or prosecuted for torture. There is no law to prohibit torture, although it is outlawed under the constitution. At most, officers suffer minor disciplinary punishment, such as temporary transfer to an inactive post until the case blows over. More frequently, the perpetrators successfully intimidate and coerce victims into withdrawing complaints, or not even taking them up at all. Police officers have many means at their disposal to conceal abuses, and no effective measures have been put in check to address police power. The Thai police are now more dominant and unrivalled than ever before, despite some attempts in recent years at reform. There are no effective measures to allow detainees to challenge the legality of their detention in the manner suggested by the committee.
This much serves to illustrate that the Thai government’s “due regard” of committee recommendations is not translated into meaningful action. A reader going through all of the Human Rights Committee’s remarks–regarding emergency regulations, human rights defenders, migrant workers, freedom of expression and other concerns–and asking “what has been done” is forced to conclude that this due regard is nothing more than a pretence.
Is this what is expected of a member of the new Human Rights Council? The AHRC does not believe so. For Thailand to become a worthy candidate it must offer specific evidence of what it has done to implement treaty-body recommendations, and what it commits to doing. Due regard is not enough. ?lt;br />
UN HUMAN RIGHTS OFFICIALS AND BODIES MUST HAVE UNIMPEDED ACCESS
In his 2005 report, the Special Rapporteur on extrajudicial, summary or arbitrary executions rightly observed that one of the great challenges for the Human Rights Council will be in ensuring cooperation with special procedures: the independent experts on specific issues that are the tools for day-to-day intervention on human rights by the UN. He also rightly pointed out that the effective functioning of these officials has been severely undermined by the failure of governments to permit visits, or grant unimpeded access. Therefore, the members of the new council must all be expected to issue standing invitations for visits by UN human rights officials and allow them free movement among places and persons of concern to their respective mandates.
Thailand’s candidacy to the council must also be contingent upon it making a standing invitation for visits by UN experts, and giving them full cooperation. Thailand has been keen to host showpiece UN events on big budgets but has shown much less enthusiasm for human rights officials. The Special Rapporteur on extrajudicial executions is among a number of those who have not been given access to Thailand. In his 2005 report he notes that a request in November 2004 was followed by a flurry of letters, but no permission to visit. In 2005 he expressed “continuing interest in undertaking a visit” but “no reply has been received”. In failing to respond to the request of this expert, the government of Thailand has lost a tremendous opportunity at a critical time. The rapporteur carries the expertise and backing of the global human rights movement. As he himself has stated, his purpose in coming Thailand has at no time been to find political fault and lay blame on any one person or agency for killings, but to produce positive recommendations for ongoing efforts towards protection of human rights. If the government of Thailand is sincere in its aspiration to join the council, it will make the necessary arrangements for the rapporteur to undertake a full and fruitful trip to Thailand in the immediate future, and make a standing invitation for all UN human rights officials interested to lend international support and knowledge to the people of Thailand.
CONSTITUTIONAL RIGHTS MUST BE ENFORCABLE
Members of the Human Rights Council will be expected to have domestic laws in place to protect and uphold fundamental human rights, in accordance with international treaties, as described above. These must include constitutional provisions–or equivalent–which are enforceable through legal actions by an ordinary person.
Thailand’s candidacy to the council must also be contingent upon it introducing a procedure through which appeals on the grounds of fundamental human rights and constitutional rights may be laid before the higher courts. In its pledge, the government states that, “Thailand’s present Constitution of 1997 guarantees civil, political, economic, social and cultural rights and fundamental freedoms for all, in line with its international obligations.” This is true. But can these be enjoyed in reality? The government neglects to mention that constitutional rights can in Thailand only be enforced where there is an organic law to implement them. A citizen has no right to appeal directly to the country’s superior courts on a violation of human rights guaranteed under the constitution. Persons who have been convicted of offences or have failed to secure convictions can not obtain relief from the Thai judiciary on the ground that their constitutional rights have been violated. A victim of torture has no way to complain that his right under the constitution not to be tortured was breached, as there is no law to give effect to that right. Therefore, to talk of the constitution as a means to implement the country’s obligations under international law is fraudulent. The government of Thailand knows this, and it should not be deliberately misrepresenting the country’s true legal situation to the UN if it is honest in its intentions towards the council.
That people in Thailand be given a right of redress emanating directly from the constitution is an exceptionally important condition for Thailand’s acceptance into the Human Rights Council. In recent weeks, the role of its courts has been spotlighted by a constitutional crisis caused by an unprecedented political impasse, itself provoked by a popular movement against the dominant political party. This situation has caused much greater awareness among the general public that the judiciary is by far the weakest leg of the Thai state. It is also a leg that is disinclined to stand on its own. Ultimately, this is a problem that returns to all of the conditions for Thailand’s acceptance to the Human Rights Council. Effective laws to eliminate torture and other gross human rights abuses, effective implementation of UN recommendations, guarantees of access to UN officials, and enforcement of constitutional rights all depend upon a strong judiciary which is worthy of public respect and willing to exercise its authority where and as necessary. In the end it is this principle of a powerful and independent judiciary to which Thailand must subscribe if it is to deserve its place on the Human Rights Council. And for that reason, its candidature is most timely and should be the cause of lively discussion both in the UN system and in Thailand itself.
The Asian Human Rights Commission urges the UN General Assembly to make Thailand’s candidature to the Human Rights Council contingent upon these four conditions. It urges key agencies for the protection of human rights in Thailand–especially the National Human Rights Commission of Thailand, Lawyers Council of Thailand, concerned politicians and members of the judiciary–to enter into vigorous debate on the country’s human rights record and its proposed candidacy. Let this be an opportunity for open and frank discussion on the serious obstacles to the realising of human rights in Thailand at a critical time in its history.
The AHRC sincerely hopes that the Human Rights Council will be a success and that it will augur in a new era of respect for, and protection of, human rights. The council faces many obstacles before this becomes a reality, and the election of members who have demonstrated–not merely pledged themselves–a genuine commitment to human rights is of the utmost importance.
