On torture and enforced disappearances
The House's approval of bills on the prevention and suppression of torture and enforced disappearances last week is a welcome development to the human rights issue in Thailand.
These four bills are being vetted by the House's special committee and will be merged into a final bill for parliament to vote on in November.
The international impetus for the new law is the fact that Thailand is a party to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT).
The international impetus for the new law is the fact that Thailand is a party to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). The new law will also facilitate Thailand’s ratification of the International Convention for the Protection of All Persons from Enforced Disappearance (CED) --the international convention that Thailand had signed but has not yet ratified to be fully effective.The local impetus is due to the case of the policeman in Nakhon Sawan province caught red-handed, torturing a drug suspect to death.
To achieve the final bill, the following considerations are pivotal.
The first consideration is clear definitions. Although torture is already prohibited by the constitution and Criminal Code, there is no definition to guide law enforcers.
The public tends to think that it is about force being applied to extract a confession. However, the definition under CAT is broader and covers both serious mental and physical harm in four situations committed by officials or their agents: namely, to extract a confession; to punish a person; to intimidate a person; and/or to discriminate against a person.
On the positive side, some of the four bills mentioned prohibit also cruel, inhumane and degrading treatment, which is different from torture. Such treatment should encompass domestic violence in families which can no longer be considered private matters but are of public concern.
As for enforced disappearances, there is currently no explicit mention of this violation in Thai law. The new law should prohibit this crime which is geared to officials depriving a person of his or her liberty and then hiding the whereabouts of the person. In this regard, there is no need to prove the person is dead.
Second is absolute rights. Most of the four bills recognise that the right to be protected from torture, cruel treatment and enforced disappearance is absolute, without any exceptions and limitations, and this would comply with international standards. However, in the past, there was backtracking to subject the right to various limitations, such as national security.
Third is no push-back to danger. The legislation must prohibit sending back a person to a country where they might be tortured. This is known as "non-refoulement".
Although Thailand has largely abided by this principle in its treatment of persons who seek refuge in the country, the new law will be the first to embed that principle in Thai law.
Fourth is universal jurisdiction. Both the CAT and CED open doors to the possibility of a member country (through its courts) exercising the power to investigate and prosecute alleged culprits even if the crime takes place outside its territory and even if those persons are not nationals of the prosecuting country. The various bills now under consideration also provide for such jurisdiction.
Fifth is effective investigation. Any attempt to investigate torture and enforced abduction in Thailand have often run into hurdles because of the inability to collect evidence and prosecute effectively.
Reasons vary but one is a lack of will. In the enforced disappearance case concerning the human rights lawyer Somchai Neelapaichit, even though a court found against one official for various misdeeds related to the lawyer's enforced disappearance, on appeal the case was overturned because that official had disappeared.
In the infamous Tak Bai case, where people who had been arrested by various officials in southern Thailand suffocated to death after being compressed into a truck, those officials were exonerated because they were considered to be performing their duties.
Sixth is a sufficient legal prescription period. This is related to the period for taking action to prosecute; the prescription period must not be too short. One suggestion now is to stretch the period to about 50 years.
On the other hand, in the case of enforced disappearance, the period should not start until the whereabouts of the disappeared person are known. This is based on the concept of that crime being a "continuing offence".
Seventh is victim responsiveness and protection. This is a key concern for all the four drafts. The legislation must provide protection to victims, their family members and related witnesses. Importantly, the various bills recognise the families as victims who deserve guaranteed access to justice and compensation.
Eighth is adequate sanctions. A range of sanctions such as fines and imprisonment vis a vis those who are responsible for the crimes is being considered. Since there is now an international trend against the death penalty, the final version of Thai law should avoid this sanction.
Ninth is transparent oversight. If the law passes, there will be a national committee to oversee implementation of the law. The committee will need to visit prisons and other places of detention to ensure they are transparent and comply with international standards.
In countries which have ratified the protocol to the CAT, there is a national mechanism to help prevent torture; one of the mechanisms is regular visits and checks at state detention facilities.
As Thailand did not have the official mechanism, Thailand's National Human Rights Commission should undertake this role.
Tenth is immediate reform of related laws and practices. The new law should stimulate reform of a whole range of laws which breed malpractices. A prime candidate is the country's overused emergency decree which allows the authorities to detain people in unofficial locations.
This is clearly against the stipulations of the CED which calls for open access and the use of official facilities. Law enforcers will need training to shun misdeeds and exert peer pressure for compliance.
Thailand is now embarking on a preferred new path to the future. The passage of bills on prevention and suppression of torture and enforced disappearances is a first yet big stepping stone into a just and better future.
Professor of law at Chulalongkorn University
Vitit Muntarbhorn is professor emeritus at the Law Faculty, Chulalongkorn University. He has helped the UN in a various positions, including as UN Special Rapporteur, UN Independent Expert and member of UN Commissions of Inquiry on human rights.