Torture and cruel treatment rear their ugly heads worldwide as a pervasive phenomenon. Today's world is all the more challenging where technology is used not only to cause harm but also to mask or hide the scars of such harm.
The global community has thus reacted strongly by classifying such practices as international crimes and has adopted international treaties and mechanisms to outlaw them.
The primary treaty on this front is the UN-backed Convention against Torture and Other Cruel, Inhuman and Degrading Treatment (CAT) 1984 which has been ratified by the majority of countries, including Thailand. This instrument prohibits torture and related practices and obliges states to criminalise them. It provides a definition of torture, thus inviting the adoption of laws at the national level to forbid acts on the part of the authorities (or their agents) which inflict severe pain or suffering, whether physical or mental, to extract a confession or with a view to punishment, intimidation or discrimination.
The notion of cruel, inhuman and degrading treatment is broad enough to cover the misdeeds of non-state actors. The CAT has also a key implication for refugee protection, as it prohibits the return of a person ("non-refoulement") to another state where there are substantial grounds for believing that there is a danger of the person being tortured.
The convention advocates universal jurisdiction to cover acts of torture and related practices, meaning that a crime anywhere is a crime everywhere; states should thus adopt laws which can cover offenders where their misdeeds take place outside the territories of those states. Prompt and impartial investigation also is needed where violations are alleged, and criminal proceedings are to be paralleled by education and capacity building, particularly for law enforcers, to prevent those practices. There is an obligation for states to provide redress to the victims, and statements obtained as a result of torture cannot be invoked as evidence in any proceedings. By implication, items obtained through such statements are also inadmissible.
Importantly, the convention has set up an international committee ("the CAT committee") to monitor implementation by member states and the latter are obliged to send in periodic reports which are then followed by dialogue with the committee and recommendations to be followed up at the national level. That convention is complemented by an additional treaty _ a protocol _ establishing an international subcommittee to carry out preventive visits to member countries, even where violations have not taken place.
In addition, the UN has a special rapporteur (investigator) on the issue of torture who prepares independent reports for the UN and who monitors all countries, irrespective of their ratification of the treaties mentioned above.
Interestingly, Thailand has now submitted its first county report to the CAT committee and is due to appear before the committee during the next year. Meanwhile, the country is inviting the UN Special Rapporteur to visit the country for the first time soon. What then is the situation in the country?
Although torture is prohibited under the constitution and Criminal Code, implementation is lax on several fronts. Various emergency laws, such as the country's martial law and the state of emergency decree, applied particularly in southern Thailand, open the door to long periods of detention where the potential for torture lurks. In addition, there is currently no definition of torture and no provision for universal jurisdiction in the Thai law, while the notion of cruel, inhuman and degrading treatment awaits integration into the legal setting. The principle of "non-refoulement" to ensure that persons seeking asylum are not returned to situations of danger is also missing from Thai law, particularly the national immigration law.
On a positive front, various draft laws are now in parliament to introduce the international definition of torture, as well as universal jurisdiction, into Thai law. A recent initiative to discard the use of shackles in some cases is welcome, while the initiative needs to be broadened and applied in all cases. The Thai authorities responsible for helping to prepare the country's first report for the CAT committee have also adopted a participatory approach of consulting civil society, a positive sign of the times.
Yet other challenges await. Effective monitoring is needed in regard to not only official prisons but also other detention facilities. They include immigration detention centres, hospitals where persons with mental disabilities are held, and juvenile detention centres. With regard to institutional support, while the National Human Rights Commission carries out visits to some detention facilities, the issue is now to ensure there is broad coverage throughout the whole country. The visits also need to be random _ knocking on the door of any detention facility without seeking prior permission.
Redress in the case of violations remains a major concern. Although the country now has a law to give compensation to victims of crime and miscarriage of justice, it is difficult to invoke this law in the case of torture, especially as the national law still lacks a definition of torture and the latter remains difficult to prove.
Of note is that internationally, redress implies not only compensation but also other measures such as non-repetition of the offence, medical support for recovery, and coverage of not only physical damage but also mental harm.
Moreover, Thailand has yet to accept the competence of the CAT committee to receive complaints from victims, in the absence of national remedies.
Interestingly, the CAT committee has advised countries to tackle not only torture in officialdom but also cruel, inhuman treatment in schools and families in regard to corporal punishment. While the latter is now forbidden in schools in Thailand, there is still no comprehensive law to outlaw it in regard to domestic situations. The country's current law on domestic violence covers the latter to some extent but does not forbid corporal punishment inflicted on children generally.
On reflection, whatever laws are adopted will never be adequate unless a mindset is also nurtured to avoid acts of violence. Much depends upon an educational and socialisation process that enables positive discipline _ rather than violent means _ to be followed.
As for the perennial question of law enforcement, how to build quality law enforcers who are chosen well, remunerated well and monitored well, remains a key concern, calibrated with adequate incentives and sanctions.
Vitit Muntarbhorn is a professor of law at Chulalongkorn University. He has helped the UN in a variety of positions, including as expert, consultant and Special Rapporteur.