After over 5 months, the Senate ad-hoc committee has finished amending the Prevention of Torture and Enforced Disappearance Bill, omitting certain offenses, reducing the statute of limitations, and erasing civil participation in how the law will be implemented.
A performance by Chiang Mai artists displays waterboarding, one of the torture methods reportedly used by Thai authorities. (Taken by Gergburin Gerngburi)
The law passed the second Senate reading on 2 August and the third and final Senate reading is scheduled for 9 August, according to the parliamentary meeting agenda. The amended bill will then be returned to the House of Representatives, the lower house, for further debate.
iLaw, the legal watchdog NGO has analysed the amendments and finds these points ‘concerning’:
- Section 6, criminalising ‘cruel, inhumane, or degrading punishment’, has been deleted together with the provisions for penalties, on the grounds that the term was too vague.
- The stipulation that the law cannot be set aside for any reason, including war, domestic political instability, or a declared state emergency (Section 12) has been deleted, citing that the provision violated the legal principle where a new law cannot nullify an existing law, and that a specific law cannot nullify a regular law.
- The composition of the Committee on Prevention and Suppressing the Act of Torture and Enforced Disappearance has been changed by removing two seats allocated to victims’ representatives and replacing them with Permanent Secretary of the Ministry of Defence and the Director-General of the Department of Special Investigation.
- The appointment of Committee members has been changed from joint selection by Members of the Parliament, the Bar Association, and representatives of political parties, to appointment by the Cabinet. The reasons for this amendment were based on the complexity of the selection procedure, and concerns about partiality if political parties were involved in the selection.
- The power of the Committee to inspect places of detention has been removed.
- The provisions in Section 23 obligating the authorities to make audio and video recordings during the arrest, detention, and interrogation of suspects has been removed, citing the principle that this would overrule the Code of Criminal Procedure. Section 24, which requires the authorities to record the identities of detainees, including the date and time of detention and state of health before and after detention, remains intact.
- The statute of limitations has been reduced from 40 years to 20 years, counting from the date of acknowledgement of the victim’s fate.
- Investigations under this Act are now solely the responsibility of the DSI, removing the participation of an administrative officer as a form of check and balance. If the DSI or an investigator are charged under the law, the Office of the Attorney General takes over the investigation.
iLaw sees that the effect of all these amendment is to change the draft back to something resembling the Cabinet draft before it was merged with 3 other drafts submitted by civil society and political parties before the readings in the lower house.
Concerns are also raised about time limitations, as amendments by the upper house mean re-opening the debate in the lower house. If the lower house disagrees with any of the amendments, an ad-hoc committee drawn from both houses has to be established to review the bill in detail again.
And if the bill is then approved, it is sent to the Prime Minister to for submission for the royal signature, the official rite of enacting the Act.
The current administration will end in February 2023 at the latest, which may not give enough time. Once parliament is dissolved, the legislative process ends, and the draft will be automatically thrown out.
It should be noted that of the 25 Senate ad-hoc committee members, seven are high-ranking officers from the police or military.
It has been a long process for this Act to get this far. The first attempt to pass a law came in 2014 in an attempt to complete the ratification of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment which Thailand ratified in 2007 and the Convention for the Protection of All Persons from Enforced Disappearance which it signed in 2012, but has yet to be ratified.
The legislative process went back and forth between the junta-appointed National Legislation Assembly and the Ministry of Justice until in September 2021, a bill was submitted to Parliament along with 3 other bills from the Democrat Party, the Prachachart Party, and the House Committee on Legal Affairs, Justice, and Human Rights based on an earlier draft by civil society.
If passed, the law will provide clear legal benchmarks to end the impunity that the authorities have enjoyed from the absence of any clear criminal punishments for torturing people to extract information or confessions, or for making people disappear.
On 23 February 2022, the combined draft act passed the lower house, and was sent to the Senate for further debate. It has taken more than five months for this watered down version to emerge.