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Only following orders

In the case of Hakeem al-Araibi, the Thai government claims that its hands are tied.  They can do nothing.  They are only following the law, protocol, the judicial process – anything but justice and common sense.

The Ministry of Foreign Affairs issued a statement on 6 February which absolved themselves of all responsibility.  Once they received the Interpol red notice (since withdrawn as invalid) and the request for extradition from Bahrain, ‘legal proceedings in Thailand regarding Mr Hakeem had already started and could not be reversed’.

But they never had to start.

2008 Extradition Act

Section 8 … Where the Requesting State has no extradition treaty with Thailand, it shall be transmitted through the diplomatic channels. …

Section 13 Where the extradition request is submitted through the diplomatic channels, the Ministry of Foreign Affairs shall consider doing the followings: … if it is of the opinion that the request may affect international relations or there is other reason that the request may not be executed, the Ministry of Foreign Affairs shall speedily propose such opinion together with the request for consideration of the Cabinet. Where the Cabinet concurs with such opinion, it shall consider making direction as deemed appropriate.

This means that the MFA must already have decided that international relations with Bahrain outweigh relations with Australia (not to mention everyone else in the world who sees the cock-up they are making of this). 

Now the Bank of Thailand doesn’t give trade figures for Bahrain.  It is lumped under ‘Middle East – Others’ at US$1,550 million in 2018.  For Australia the figure is US$16,712 million. The Ministry of Tourism and Sports also does not think the figures for tourists for Bahrain are important enough to segregate, but visitors from ‘Middle East – Others’ in September last year (latest available figures) were projected at 33,102.  The number of Australians arriving in the same month was 73,609. 

Of course it may be a bit tiresome for the MFA to go hunting up all this data to find out whether relations with Australia or Bahrain are more important to Thailand.  But they could have looked at their own Blue Book of all diplomatic missions in Thailand and discovered that the Australian Embassy has a staff of 50 plus 1 in the Phuket Consulate.  The Embassy of Bahrain has 3. 

The MFA statement goes on to say: ‘In proceeding with the legal process, the executive branch cannot interfere with the judicial process.’

They lie.

Section 44 of the 2014 Interim Constitution

In the case where the Head of the National Council for Peace and Order deems necessary for the purpose of reforms in various fields, … the Head of the National Council for Peace and Order, with the approval of the National Council for Peace and Order, shall have power to order, restrain, or perform any act, whether such act has legislative, executive, or judicial force; the orders and the acts, including the performance in compliance with such orders, shall be deemed lawful and constitutional under this Constitution, and shall be final.

‘Or judicial force’, you notice.  And in case you’re wondering how an Interim Constitution can still be operative:

Section 265 of the 2016 Constitution

… the Head of the National Council for Peace and Order shall continue to have the duties and powers as provided in the 2014 Constitution of the Kingdom of Thailand (Interim) … The provisions of the aforementioned Constitution specifically in respect of the powers of the Head of the National Council for Peace and Order and the National Council for Peace and Order shall remain in force.

OK, so maybe they don’t actually have to keep Hakeem in jail for 10 months before deciding what to do with him, but there’s nothing to say they can’t send him back to Bahrain, is there? 

Well, actually there is:

Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [ratified by Thailand on 2 October 2007]

No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Ah, but how can we be sure that torture goes on in Bahraini prisons?  Take your pick:

  • Human Rights Watch issued a report in 2015 on ‘Continuing Torture and Mistreatment of Detainees in Bahrain’.
  • Amnesty International 2017/2018 Report on Bahrain: ‘There continued to be reports of torture and other ill-treatment in custody, in particular of those interrogated about terrorism-related offences.’
  • US State Department 2017 Human Rights Report on Bahrain: ‘The most significant human rights issues included … allegations of torture of detainees and prisoners; harsh and potentially life-threatening conditions of detention …’

Even the Bahraini government has acknowledged torture.  It set up its own Independent Commission of Inquiry in 2011 to look into allegations of torture and other human rights violations.  It concluded ‘Many detainees were subjected to torture and other forms of physical and psychological abuse while in custody’.

‘Only following orders’ was discredited as a defence at Nuremberg in 1946.  Why should it still work in Thailand in 2019?


About author: Bangkokians with long memories may remember his irreverent column in The Nation in the 1980's. During his period of enforced silence since then, he was variously reported as participating in a 999-day meditation retreat in a hill-top monastery in Mae Hong Son (he gave up after 998 days), as the Special Rapporteur for Satire of the UN High Commission for Human Rights, and as understudy for the male lead in the long-running ‘Pussies -not the Musical' at the Neasden International Palladium (formerly Park Lane Empire).