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Open letter to PM: Respect of the rule of law, protection of human rights, and an end to impunity

The International Federation for Human Rights (FIDH) and its member organization in Thailand, the Union for Civil Liberty (UCL), respectfully urge you to make effective protection and promotion of human rights a top priority in your administration. On 5 October, Thailand’s human rights record will be examined for the first time by the United Nations Human Rights Council’s Universal Periodic Review (UPR) process, and it is essential that your government demonstrate to the international community and the people of Thailand a genuine commitment to restore full democracy, respect the rule of law, and outline the concrete steps you plan to take to fulfill this commitment.

As a State party to eight major international human rights treaties, Thailand has the obligation not only to respect and fulfill human rights, but also to take all necessary measures to ensure their full protection. While the protracted political turmoil in Thailand in the past six years is complex, our organizations believe that the lack of respect for human rights and of access to justice for victims constitute a major underlying factor and contribute to a growing sense of injustice pervasive in the country.

RESTRICTIONS ON FREEDOM OF EXPRESSION AND OF THE MEDIA

Freedom of expression and opinion is a cornerstone of every free and democratic society. It is protected by the Constitution of Thailand of 2007 (Part 7, Section 45) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand acceded in 1996. The National Human Rights Commission of Thailand, in its UPR report, called on the government to “adhere strictly to the provisions of the Constitution in guaranteeing the freedom of the media and the people.”

Restrictions on freedom of expression are permissible under international law if, and only if, they are provided by law to protect the rights of others or for the purpose of national security and public order, in strict conformity with the tests of necessity and proportionality. Such restrictions of liberties need to remain exceptional and defined in very clear and narrow terms, with robust safeguards and remedial measures in place to check against abuses.

In Thailand, the lese majeste laws as well as the Computer Crimes Act of 2007 are unfortunately applied in an abusive and non-transparent manner and are inconsistent with international standards for the protection of freedom of expression. The same can be said of several special security laws which restrict freedom of expression. All these laws are formulated in overly broad and vague terms, giving wide and virtually unchecked discretionary power to State authorities to arbitrarily censor the media, criminalize peaceful speech, and restrict freedom of expression without adequate judicial and other independent oversight. They have also been increasingly used to curtail peaceful and legitimate expression of political and dissenting opinions. In 2010, when a state of emergency was imposed in Bangkok and other provinces, tens of thousands of web-pages were blocked, over a hundred opposition community radio stations were shut down, and various other news outlets were heavily censored or closed down entirely.

FIDH and UCL strongly recommend the Thai government to undertake a comprehensive and rigorous review of all legislations and administrative measures that impinge upon the freedom of expression and amend or repeal those inconsistent with or in violation of international human rights law and standards. The authorities must disclose the details and number of lese majeste cases to the public, cease the practice of closed trials, and end all forms of censorship and intimidation of journalists, netizens and Internet service providers.

Silencing the people who exercise their legitimate rights is not only a hallmark of an authoritarian regime but also a recipe for social tension and conflict. It is high time that the Thai government take concrete and serious action to cease and rectify such violations of freedom of expression.

THE DEATH PENALTY

Today, more than two thirds of the countries in the world have abolished the death penalty in law or practice. A third resolution of the United Nations General Assembly (UNGA) calling for a universal moratorium on the use of the death penalty was adopted by 109 States on 21 December 2010. We take note that Thailand, who voted against the previous two resolutions, abstained in 2010 and did not sign a statement of disassociation. The Second National Human Rights Action Plan (2009-2013), in its Section 3.1, proposed the replacement of the death penalty with life imprisonment. However, we are deeply concerned that the government’s national UPR report leaves out this proposal and fails to make any commitment to abolition. The death penalty is an inherently cruel and inhuman punishment that is also irreversible. Substantial evidence has demonstrated it has no deterrent effect on crimes. The government must show real leadership to inform and change, rather than hide behind, public opinion regarding the death penalty.

Besides, we are also particularly concerned about the cruel and inhuman practice of permanent shackling of male death row prisoners. The practice continues despite the call to end it in 2005 by the UN Human Rights Committee and a decision in 2007 by the Administrative Court of Thailand that such a practice is unconstitutional and contrary to international law.

FIDH and UCL call on your government and the parliament to adopt immediately a moratorium on execution with the final aim being its abolition, cease permanent shackling of male death row prisoners, and collaborate with civil society to sensitize the public on the need for abolition. We recall the previous admonition of the UN Human Rights Committee to the Royal Thai Government that only the “most serious crimes” may be subject to the death penalty, and that drug related crimes do not constitute “most serious crimes” referred to in Article 6.2 of the ICCPR. It must be emphasized that the concession of this article may not be invoked “to delay or prevent the abolition of capital punishment” (Article 6.6 of ICCPR).

DRACONIAN SPECIAL SECURITY LAWS

The imposition of special security laws, including Martial Law, the Emergency Decree, and the Internal Security Act, in southern border provinces, as well as in other parts of the country during recent political demonstrations, has led to serious rights violations, including--in addition to restrictions on freedom of expression--arbitrary detentions, arrests without warrant, and prolonged detention without a criminal charge. These practices have also resulted in other serious abuses such as enforced disappearance, torture and extra-judicial killings.

Besides, the special security laws grant broad discretionary powers to State agents, who are not effectively checked by adequate independent oversight, either by the judiciary or other bodies. Immunity clauses built into the laws effectively protect the government and its agents from being prosecuted for the crimes they committed. Such impunity is counter-productive to national reconciliation and creates a sense of injustice that exacerbates the root causes of conflict.

FIDH and UCL call on your government to urgently restore the primacy of human rights, including due process and fair trial rights, to all laws concerning the protection of national security and public order and resulting practices. This entails repealing or drastically amending all special security laws to bring them in line with international legal standards and human rights instruments to which Thailand is a party. Exceptional powers should be narrowly and precisely defined and the laws regularly and rigorously reviewed and checked by the Parliament and other independent bodies. Besides, their application must be consistent with the strict tests of legality, necessity and proportionality. Crimes committed by State agents during the imposition of these laws must be properly investigated and prosecuted.

PERSISTENT IMPUNITY AND LACK OF ACCESS TO JUSTICE

Impunity of government officials and members of State security forces remains entrenched, widespread, and persistent. It exists in law and in practice. “Unequal access to justice”, as formulated in the national UPR report, is recognized by the government as a challenge. State agents implicated in crimes such as enforced disappearance and excessive use of force are rarely held to account. In the few cases when they are actually prosecuted, they were either convicted for minor offenses that do not reflect the gravity of the actual crimes or they were acquitted altogether. A glaring example is the case of the enforced disappearance on 12 March 2004 of human rights lawyer Somchai Neelapaijit, which in addition to being in itself a serious crime, ended in the appalling acquittal of all defendants. Accountability for the killing by security officials of 32 suspected insurgents on 28 April 2004 in the Krue Se mosque or the death of 84 demonstrators on 25 October 2004 in the Tak Bai case remain unresolved due to the unwillingness to prosecute by the authorities, despite strong evidence suggesting criminal liability.

The death in Bangkok of 92 and the injuries of 1,885 persons during the crackdown on Red-Shirt protesters in April and May of 2010 remain unaccounted for. We welcome the pledge you made on 4 July 2011 to support the work of the Truth for Reconciliation Commission (TRC) to investigate and establish the facts surrounding the violence of these demonstrations. We deeply regret the lack of cooperation with the fact-finding commissions on the part of State security officials involved in the military operations that violently dispersed the protesters.

National reconciliation requires public confidence in the rule of law and strong democratic institutions, including in the judiciary. Failing to deliver justice and remedy when rights have been violated is the greatest obstacle to reconciliation, and such impunity must be lifted. Justice is not an option but an obligation and an imperative.

FIDH and UCL strongly urge your government to provide victims and their families with prompt, effective and adequate remedy, judicial or others, as guaranteed by the Constitution and the ICCPR. Significantly increasing budget allocation for legal assistance to victims of human rights violations would be an important initial step. Compelling the cooperation of government and military officials with the work of the TRC and other independent investigations would be another. The Thai government should also expedite its ratification of additional international instruments, especially the International Convention for the Protection of All Persons from Enforced Disappearance, and harmonize them with national laws and enforce them effectively. There is also a need to institutionalize stronger and effective civilian control over the military. We further call on the Thai government to review the Krue Se and Tai Bai cases with a view to pursue prosecution of those responsible for the deaths.

REFUGEES, ASYLUM SEEKERS AND MIGRANTS

The government’s national UPR report conspicuously left out any references to blatant violations of the non-derogable principle of non-refoulement. These violations include the forcible return in December 2009 to Laos of more than 4,600 Lao Hmong, among whom 158 were UNHCR-designated “Persons of concern”; the forcible return of thousands of Burmese refugees who fled to Thailand following military offensives in border areas; and documented instances between 2008 and 2011 in which the Royal Thai Navy forced Rohingyas from Burma and Bangladesh back out to international waters in rickety boats with little water or food, resulting in fatalities. Prior government promises to investigate the latter incidents remain unfulfilled.

Millions of migrant workers, most of them undocumented, from neighboring countries remain vulnerable to and are subjected to exploitation, sexual abuse, trafficking, and extortion. The government’s national UPR report commits to reform the ‘national verification’ process to make it “less complicated, less time consuming and more cost effective”, which effectively admits that the registration scheme is deeply flawed.1

FIDH and UCL call on the Thai government to make it a matter of national policy to not forcibly return refugees and asylum seekers. It must genuinely respect international norms and ensure UNHCR has unfettered access to properly screen and determine the status of any asylum seeker or refugee, before any decision on repatriation is made and carried out. The government should make it a priority to provide legal protection to refugees, asylum seekers and migrants by enacting appropriate legislation, as well as by acceding to the 1951 UN Refugee Convention and the subsequent 1967 Protocol Relating to the Status of Refugees, as well as the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990). Accountability for serious violations of the rights of migrants and refugees must be established through credible investigation and prosecution of perpetrators.

COOPERATION WITH UN HUMAN RIGHTS MECHANISMS

We remain deeply concerned that Thailand has failed to be punctual in submitting State party reports to a number of international human rights treaties which it has ratified2. We strongly urge Thailand to honor its reporting obligation and submit its overdue reports as soon as possible and to submit future reports on time. In drafting these reports, the Thai government should conduct multiple, inclusive and broad-based consultation with community and civil society organizations throughout the country, and incorporate their input into the State reports.

When it ran for a seat on the Human Rights Council (HRC), Thailand also pledged to engage and work closely with its special procedures. There are currently 11 pending requests from special procedures. Therefore, we further urge Thailand to honor this pledge by responding positively to these requests and cooperate fully with such country visits, especially by the following:

  • Special Rapporteur on the human rights of migrants;
  • Special Rapporteur on the rights to freedom of peaceful assembly and of association;
  • Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression;
  • Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment;
  • Working Group on Arbitrary Detention;

Madam Prime Minister, the Thai government needs to move in the right direction towards a stronger democracy that fully respects and places human rights at the core of all political, social and economic policies. Words alone cannot protect human rights. Promises alone do not ensure reconciliation. The government’s national UPR report lists a number of laws, regulations, action plans, and entities related to human rights. However, these in themselves do not reflect or guarantee protection of human rights on the ground if they are not properly implemented and monitored to ensure tangible impact. It is therefore essential that your government take concrete steps to ensure and strengthen institutional protection for human rights and the rule of law, end impunity in law and in practice, and dispense justice impartially and promptly. The UPR of Thailand on 5 October will be a key opportunity for Thailand to further elaborate on its plans, not just commitment, to achieve these goals.

Thank you for your attention and consideration of our recommendations. We remain at your disposal should you wish to discuss these issues further. Please accept, Your Excellency, the assurance of our highest regards.

Sincerely yours,

Souhayr Belhassen
President
International Federation for Human Rights (FIDH)

Danthong Breen
Chairman
Union for Civil Liberty (UCL)
Working Group on Enforced or Involuntary Disappearances.

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1 FIDH, “Migrants in Thailand Facing Detention and Imminent Deportation,” 10 March 2010. Available at: http://www.fidh.org/Migrants-in-Thailand-Facing-Detention-and

2 Thailand’s initial state party report to the Human Rights Committee was submitted more than six years late and its second report is overdue since August 2009. Its combined sixth and seventh report to the Committee on the Elimination of All Forms of Discrimination Against Women is overdue since September 2010. At the timing of writing, it has failed to submit both the initial and second report to the Committee on Economic, Social and Cultural Rights.

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