Re-balancing reflections on Human Rights Day

Re-balancing reflections on Human Rights Day

Activists campaign on Monday against Section 301 which criminalises women who seek an abortion. Nutthawat Wicheanbut
Activists campaign on Monday against Section 301 which criminalises women who seek an abortion. Nutthawat Wicheanbut

Dec 10 is International Human Rights Day, coinciding with Thailand's Constitution Day. It recalls particularly a seminal event: the adoption of the Universal Declaration of Human Rights by the UN in 1948. This has propelled many human rights standards against which the record at the national level is measured. Not only did it entrench the universality of human rights -- the premise that there are international standards, backed by a range of declarations and treaties, applying globally, but also the indivisibility of human rights -- the connectivity between civil, political, economic, social and cultural rights.

That indivisibility implies that human rights are to be promoted in their totality; one set of rights cannot be used to bargain for another set of rights. In essence, the world needs to respect the right to acquire a nationality, freedom of expression, peaceful assembly and association (alias civil and political rights) as much as the right to an adequate standard of living, education, work and health (alias economic, social and cultural rights). Importantly, Thailand voted for the Universal Declaration and this impacted upon the constitution at the time.

In fairness, the country has done well on some fronts in terms of human rights implementation while the record is ambivalent and regrettable on other fronts. On reflection, the record on economic, social and cultural rights has been commendable but the record on civil and political rights has been questionable. Why? The simple answer is that civil and political rights are closely related to democracy and democratisation. Yet, the country has been searching for a democratic narrative for a very long time, overturned by multiple coups d'etat throughout the years and the denial of genuine people-based rule anchored in multi-party political systems and liberal, pluralistic space for public participation.

On the positive side, the medical health services in the country can generally be lauded. This is due to the so called 30-baht medical care scheme which was established some two decades ago ensuring universal health care for the Thai population. The fact that the country has a strong and accessible medical system has been of enormous benefit to tackle Covid-19; doctors, nurses and community volunteers should be applauded for their work. At times, the system has also been generous to non-Thais, including those who are here irregularly.

The country's anti-poverty action has also been constructive, as shown by its fulfilment of the Millennium Development Goals which was advanced further by the Sustainable Development Goals in 2015. Admittedly, that progress is now dented by the regression brought about by the pandemic. Yet, efforts to overcome poverty and to respond to the devastation caused by Covid-19 logically call for the strengthening of social protection and social safety nets to help those who are disadvantaged and marginalised, as well as equitable budget allocations, sustainable enterprises and an inclusive gender-based recovery and regeneration. There is also the priority of reallocating military budgets to development budgets with full accountability.

The political front is less salutary. The fact that the country has witnessed 20 constitutions, mostly overturned by use of force, underlines the precariousness of democratic aspirations and the rule of law in the country. Declarations of states of emergency, used in regard to southern Thailand, and at times used elsewhere in the country, have often not abided by the standards of international human rights law. The balancing act is covered by the International Covenant on Civil and Political Rights 1966 to which the country is a party. Under that treaty, if constraints are to be imposed on rights and freedoms, they must fulfil at least three criteria: particularly the principle of legality so that those constraints must not be arbitrary and must be based on law; the principle of necessity requiring the executive branch to prove that limitations are genuinely necessary according to the circumstances; and the principle of proportionality positing the need to test constraining measures as proportionate to the risks and exigencies of the situation. Non-democratic elements holding the reins of power have a variety of tools at their disposal which are antithetical to rights and freedoms, including martial law, computer crimes law and national security-related provisions which are overused to silence dissidents.

The reality is that checks and balances are being eroded in several settings. This is witnessed by selective application of the law. While various criminal law provisions, such as sections 112 and 116, are being used against those who disagree with the authorities, other provisions have been sidelined. In particular, Section 113 dictates that those who overthrow the constitution can be punished by very severe penalties; such acts, also implying coups d'etat, are tantamount to insurrection and are prohibited. Furthermore, Section 114 punishes those who conspire to overthrow the basic law of the land.

While the judiciary has been a reliable pillar of the state on some occasions, such as the recent judgement finding that Section 301 of the Criminal Code which criminalises the woman (and not the man who caused the pregnancy) for the act of abortion is unconstitutional because it is a breach of the woman's right to physical integrity, the record on political cases has been controversial. The judicial domain has been reluctant to question the validity of coups d'etat and the consequences thereof. The fact that some deliberations have led to the consecration of the power base and the disenfranchisement of large portions of the public through the disbanding of political parties representing millions of voters can also be seen as a root cause of popular discontent.

On a related front, there is the evident shrinking space of civil society in some parts of the world, including here. Or, as a member of civil society has asked, is it a matter of that space being shrunk? Imbalances caused by the neglect of and or subversion of key rights in the country presage an era of turbulence rather than providence. This calls for a rebalancing of the national scenario to overcome the negativity of the political kaleidoscope.

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He was formerly UN Special Rapporteur, UN Independent Expert and member of UN Commissions of Inquiry on human rights. He is the author of: 'The Core Human Rights Treaties and Thailand'.

Vitit Muntarbhorn

Chulalongkorn University Professor

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok, Thailand. He has helped the UN in a number of pro bono positions, including as the first UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography; the first UN Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea; and the first UN Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. He chaired the UN Commission of Inquiry (COI) on Cote d’Ivoire (Ivory Coast) and was a member of the UN COI on Syria. He is currently UN Special Rapporteur on the Situation of Human Rights in Cambodia, under the UN Human Rights Council in Geneva (2021- ). He is the recipient of the 2004 UNESCO Human Rights Education Prize and was bestowed a Knighthood (KBE) in 2018. His latest book is “Challenges of International Law in the Asian Region”

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