New Thai human rights commission organic law a no brainer

The ongoing debate on the organic law on the new Thai National Human Rights Commission focuses on the selection process and level of authority of the NHRC, i.e., whether it can advise the Constitutional and Administrative Courts. The regime’s official position is that the NHRC should be more diverse and should meet the international human rights Paris Principles, a somewhat paradoxical position given it was under the regime that the NHRC was downgraded according to the Paris Principles. Civil society also emphasizes greater diversity and that there should be a stronger emphasis on the NHRC investigating human rights abuses.

The solution is simple: according to the Human Rights Risk Index 2016 (Fourth Quarter) report, Denmark is the best performing country in the world. Denmark also scores high on other civil liberties and freedoms indices, for instance ranking fourth in the world in the Human Freedom Index 2016, by the Cato Institute, the Fraser Institute, and the Liberales Institut at the Friedrich Naumann Foundation for Freedom. The latter index measures freedom from a Social Democratic perspective, i.e., it is a classic compromise between the state, civil society, and private enterprise, measuring rule of law; security and safety; movement; religion; association, assembly, and civil society; expression; relationships; size of government; legal system and property rights; access to sound money; freedom to trade internationally; and regulation of credit, labor, and business. It is therefore a ‘no brainer’ to adopt the Danish model in Thailand.

Human Rights Risk Index 2016 (Fourth Quarter)

The 2015 downgrading of Thailand’s National Human Rights Commission (NHRC) to a ‘B’ by the International Coordinating Committee on National Human Rights Institutions (ICC) created the embarrassing situation whereby a country aspiring to hold a temporary seat on the UN Security Council no longer had a voice on human rights-related issues. In effect, Thailand’s NHRC was judged not impartial or effective enough to submit reports on human rights in Thailand to the UN Human Rights Council, nor can it actively participate in human rights conferences organised by the UN Human Rights Council. It has been hobbled by this downgrading ever since, and the regime is dreaming if its purely cosmetic organic law will improve the situation. In fact, deep-rooted fundamental reform is needed to avoid the ongoing embarrassment that is the NHRC at present, with its seven commissioners and under-powered sub-committees.

National Human Rights Commission Subcommittees

The downgrading was long-anticipated, as the recommendation to do so was made by the Sub-Committee on Accreditation (SCA) of the ICC months previously. Crucially, the ICC is not a UN agency. The issue of a critical, independent voice is so important to guaranteeing human rights that the ICC is a fully independent organisation consisting of human rights institutions worldwide. The decision to downgrade was a decision taken by the Thai NHRC’s peers, not the UN.

In October 2014, Thailand was given a ‘yellow card’ by the SCA and urged to bring its NHRC into compliance, within a year, with the guidelines for national human rights institutions worldwide, the ‘Paris Principles’. These principles were adopted by the UN General Assembly in 1993, and, following significant loss of life during the pro-democracy protests in 1992, led to the establishment of Thailand’s NHRC in the 1997 Constitution.

Thailand’s NHRC failed to substantially improve since the forewarning. Specifically, it was faulted for its selection process for commissioners, for its lack of quasi-judicial independence, and for its inability to monitor and investigate human rights violations in a timely, dignified manner.

Considering the first point, the SCA report states the government failed to advertise vacancies with clear criteria; the pool of candidates was not pluralistic and representative; there was little public consultation in the application, screening, selection, and appointment processes; and those selected appeared to have been chosen as representatives of their organisations rather than in an individual capacity.

In fact, Thailand’s selection process actually worsened since the SCA’s warning. The entire process of selecting Thailand’s new NHRC commissioners in 2015 was shrouded in secrecy.

At one stage in the process, the majority of screeners were from the judiciary, while 12 of a 17-person‘morality’ screening committee were four-star military generals. The result was that in the resulting commission of seven members, only one had a public record of championing human rights.

In an ideal situation, given the monumental task facing human-rights defenders in Thailand, there would be more commissioners, and these would represent a plurality of society. While representatives of government ministries and political parties can be commissioners, the bulk of the commission needs to be civilian.

As an exemplar, the Danish Institute for Human Rights (DIHR) is a stand out. It is a grade ‘A’ accredited body according to the ICC. It has a representative council of 51. In addition to ministries and political parties, there are representatives of senior citizens, the disabled, children, adult education, refugees and migrants, industry, trade unions, anti-poverty campaigners, rights lawyers, women and LGBT rights defenders, anti-racism campaigners, and NGOs such as the Red Cross and Amnesty International. It is a model for any ‘Grade B’-accredited NHRC seriously wanting to upgrade.

Obvious benefits of a large commission in an institute model are greater expert coverage of issues and the ability to process cases faster via dedicated departments rather than under-powered sub-committees. In Thailand, given the worrying trend of harassing and forcibly disappearing members of the country’s minorities, such as the Lahu, Karen, and Thai Malay, Thailand’s ethnic groups should also be represented, perhaps via regional commissioners for ethnic minorities.

The second main finding of the SCA was that Thailand’s NHRC commissioners are vulnerable to threats of litigation due to the country’s infamously restrictive defamation laws. Consequently, the SCA report recommends immunity by protecting members from legal liability for actions undertaken in good faith during the course of their official duties. This must be built into the organic law.

The third finding was that Thailand’s NHRC has not dealt with serious human rights violations in a timely manner, ie, providing the ability for what should be a highly-respected independent institution to investigate, intervene, and make recommendations to government on current issues.

In particular, Thailand’s NHRC was faulted for its investigation of the 2010 civil unrest taking three years and its investigations of the 2013-2014 civil unrest only being released in November 2015. In an ideal situation, prompt investigations by a national human rights institution should be able to make a difference. In other words, with a strong, independent body, the 2014 socio-political meltdown and coup might have been avoided.

The downgrading of Thailand’s NHRC means the country now finds itself in the same grade as Myanmar, and a full grade below the national human rights institutions of Malaysia, the Philippines, and Indonesia. Brunei, Cambodia, Laos, Vietnam, and Singapore do not submit their national human rights bodies for accreditation.

Of the 111 organisations accredited by the ICC, 72 are ‘A’ status, while 10 are ‘C’ – no status. Thus, as the regional headquarters for a number of UN agencies, Thailand finds itself in a mortifying situation.

And it is right now that Thailand really needs a functioning, representative NHRC. As highlighted by the SCA report, a coup presents a special challenge, and the last NHRCs have effectively been paralysed. In particular, Surachet Satitniramai, one of the commissioners of the National Human Rights Commission (NHRC), resigned in April 2017 to highlight governance problems inside the NHRC, i.e., the lack of a democratic structure respectful of human rights.

Further, the 2015-2016 iLaw annual reports by independent monitors note a massive increase in human rights violations using Article 112, the lese majeste law, including the prosecution of mentally unfit defendants and use of military courts, as well as restrictions on freedom of speech and assembly, together with a programme of arbitrary detention or “attitude adjustment” targeting academics, students, and ordinary citizens.

At a time when the use of dictatorial powers via Section 44, ‘Rule by Diktat’, is increasing, and with elections being postponed to 2018, the new organic legislation must define the structure and responsibilities of an upgraded national human rights institution in a way that mirrors the Danish Institute for Human Rights. The new NHRC must be one that will convince all concerned that it can serve a role in independently policing Thailand’s core institutions, whether legislative, bureaucratic, or judicial, as well as civil rights. Without impartial institutional guarantors of personal and political human rights that bridge the divide between the state, private enterprise, and civil society, democracy will never again flower in Thailand.

 

The above was adapted from ‘Downgrading of Thai human rights body a wake-up call’, published February 4, 2016 by The Nation, available here.