Introduction: Rule of law versus rule of lords in Thailand

Editorial board, article 2

This is the second special report released by the Asian Legal Resource Centre (ALRC) in article 2 on torture, extrajudicial killings and uneven application of law in Thailand. The June 2003 edition consisted of a special 44-page report, ‘Extrajudicial killings of alleged drug traffickers in Thailand’ (article 2, vol. 2, no. 3), in the aftermath of some 2500 killings. Writing then, Basil Fernando, executive director of the ALRC, noted that the law enforcement agencies directly or indirectly involved in these extrajudicial killings would further lose legitimacy and integrity, harden links with criminals, and act with greater secrecy and deception.

Unfortunately, events since in Thailand have proven these earlier predictions correct, as a new authoritarian rule has asserted its prerogative to direct the country without regard to international human rights standards. Persons are killed or disappeared daily in the south; targeted killings by hired guns are on the rise; torture is believed widespread but law enforcement officers continue to enjoy impunity for their actions; political opponents to the current administration are facing growing threats to their personal and financial security. In its inaugural report released during 2004, the National Human Rights Commission of Thailand rightly spoke of the country as “regressing towards a culture of authoritarianism, instead of progressing to a culture of human rights”.

The purpose of this report

The purpose of this report, ‘Rule of law versus rule of lords in Thailand’, is not just to highlight such gross abuses of rights, but also to demonstrate that in Thailand there is as yet no effective way to counter these abuses through existing legal, constitutional and social avenues. Without the means to obtain effective investigations and redress for human rights violations, there is very little meaning to human rights at all. It follows, for instance, that the Thai army commander-in-chief is able to go on television stating that no serious disciplinary action is needed against generals found to have caused mass deaths in custody. Anyone seriously concerned about the future of human rights in Thailand and the prevention of such abuses should ponder these comments, and concentrate on how to enable effective investigations, prosecutions and redress for victims.

When state parties ratify the International Covenant on Civil and Political Rights, they undertake to provide legislative, judicial and administrative measures in accordance with article 2 so that citizens may enjoy the rights enshrined in the covenant. Without these measures, ratifying the Covenant is meaningless. At home and abroad the government may voice its commitment to human rights, but these will be words of no significance in the absence of steps to improve the channels needed to bring effective investigations and redress. This is what Philip Alston, UN Special Rapporteur on extrajudicial, summary or arbitrary executions, rightly refers to in his 2005 annual report as the ‘key challenge of accountability’. “The essential thrust of international human rights law is to establish and uphold the principle of accountability for measures both to protect human rights and to respond fully and appropriately to violations of those rights,” he writes. “If measures are not in place to prevent and to respond to extrajudicial, summary, and arbitrary executions, they are unlikely to be effective in responding to other human rights violations either.”

Responding to extrajudicial executions and other gross human rights abuses means having in place the avenues for independent investigation and judicial inquiry. This requires political decisions, which in turn require strong will and serious discussion. However, the established order in Thailand has a deep and long-standing resistance to investigation and inquiry. Fear of investigation is a natural part of its political and social norms. Denial of proper inquiry is the routine. When the government of Thailand takes up and leads discussion on human rights abuses therefore, its first aim is to ensure that its exercise of authority will not be affected. Victims of abuses, who belong to a population that has never seen a serious effort to uncover the truth, accept whatever little they can get-perhaps some kind words or a handful of money-with resignation. Intellectuals and progressives cover up their utter powerlessness and struggle to maintain some form of national pride by speaking about historic struggles and constitutional developments, as if the dismal killings, torture and disappearances were not all that bad.

The 1997 Constitution of Thailand has been called progressive. It was a significant victory after a protracted struggle to overcome authoritarian structures and introduce democratic ones. However, the making of a constitution is only a preliminary exercise. The test of a constitution lies not in its contents but in what is done to assert the rights it proclaims. Where laws and agencies do not accompany these, a constitution is of little use. The efforts that gave rise to the 1997 Constitution may have awoken a new type of resistance to change among the establishment. It will be put to greater tests still. There will be many questions about the possibility of democratic forces withstanding constitutionally legitimate forms of authoritarian rule, such as the overwhelming majority obtained by the current government in the last election.

This point is made by the ALRC in its submission to the Human Rights Committee, where it states in paragraph 8 that

In many respects, the thinking of the ruling elite in Thailand continues to be deeply feudal and contrary to the principles of modern governance and justice. Despite the surface appearance of democracy and respect for human rights in the country, it is still the elite and its values that predominate. It is still expected that a general should escape punishment for mass killings, that a political leader should be permitted to threaten publicly persons who question his authority, that a senior police officer should endorse torture, that a villager should be killed for being an alleged drug dealer. On paper, Thailand now adheres to the rule of law; in practice, it is still subjected to the rule of lords. Although the democratic 1997 Constitution suggests the possibility of change, it has become clear in recent times that ancient authoritarian practices and thinking are still very much in place¡K The persistent reinforcement of old practices, under the guise of seemingly modern institutions in Thailand, continues to have a tremendously detrimental albeit subtle effect on the possibility of effecting rights under the Covenant.

The role of the UN Human Rights Committee

While several other Asian countries provide some means by which people who suffer human rights abuses can seek redress through directly appealing to higher courts on constitutional grounds, no such avenue exists for citizens of Thailand. Therefore, the citizen is denied the right of redress that the government of Thailand has guaranteed to provide under the Covenant.

Here is a problem for the UN Human Rights Committee, which is due to consider Thailand’s initial report under the Covenant during its 84th session in 2005. It is also a problem that speaks to larger difficulties facing the global human rights movement, about which the UN Secretary General Kofi Annan has talked recently. When the Human Rights Committee meets to consider Thailand’s record on human rights, it will be meeting with representatives of the executive. However, the executive cannot be the arbiter of the executive. That is the role of the judiciary. When the role of the judiciary is deliberately circumscribed so as to be unable to serve this function, as in Thailand today, where can people turn to obtain their rights? What can be done about this internationally?

Among his recent proposals for radical reform to the United Nations human rights bodies, the Secretary General has identified the need for major changes to the functioning of treaty bodies, which are the independent guardians of those human rights negotiated and accepted over the years. In his April 7 statement to the 2005 annual session of the UN Commission on Human Rights he stated that they must be able to “better carry out their mandates¡K to function as a strong, unified system”. The Human Rights Committee is among these. Although the strongest of treaty bodies, the Committee needs to be much improved, to be more accessible, fast and active. It needs to offer strong and salient recommendations based on detailed understanding of defects in a domestic system, which can be pursued within a short period of time.

What will happen when Thailand comes before the Committee? Will diplomatic niceties prevail over the need to have the state realise the gravity of its failure to fulfil its obligations in accordance with article 2 of the Covenant? Can it enter into a rigorous dialogue with the government of Thailand that may effect real meaning for its people? Or will the opportunity to raise serious international discourse on the deep systemic human rights problems in Thailand again be lost? In fact, the maintenance of national pride now very much depends on serious discourse, and not upon new denials or convenient rhetoric.

Recalling the challenge of article 2

This challenge posed by article 2 is a challenge for everyone-the government, the people of Thailand, and the international community, by way of its organisations. The challenge is: can we be serious about preventing gross human rights abuses, and provide redress where they do occur? Perhaps the questions that also needs to be asked are: when violations of human rights occur, how serious are the persons who speak out in condemnation, and what do they really want to achieve? If no one is genuinely committed to stopping such abuses then it will be wishful thinking to expect that they will disappear on their own. What is required is the human will to intervene, stand against such abuses, and demand and obtain real investigations and exposure of all the details of abuse so that the public will begin to believe that there are concerted efforts to bring about change.

The Secretary General’s April 7 statement too has raised this challenge for the whole world. The global human rights movement, he rightly pointed out, has ossified. Instead of fighting for meaningful change, it has grown cynical and withdrawn from many of the critical issues facing our time. And foremost among his remarks on the need for bold and comprehensive changes to the UN approach to dealing with human rights, the Secretary General at last laid emphasis firmly on implementation:

The cause of human rights has entered a new era. For much of the past 60 years, our focus has been on articulating, codifying and enshrining rights. That effort produced a remarkable framework of laws, standards and mechanisms – the Universal Declaration, the international covenants, and much else. Such work needs to continue in some areas. But the era of declaration is now giving way, as it should, to an era of implementation.

The ALRC has made exactly this point for a long time now. It was the reason for the birth of article 2 in 2002, when its inaugural edition emphasised that the time has arrived to move from articulation to implementation of human rights. The introduction to the first edition, ‘Open letter to the global community: Let us rise to article 2 of the ICCPR’ read in part thus:

It is time for the global human rights movement to examine why it may not yet be achieving real improvement in the global human rights situation. One factor hindering honest examination is the belief that improvement of knowledge about human rights will by itself end human rights violations. This is a myth based on the corresponding belief that education is itself capable of improving things. In reality human rights can only be implemented through a system of justice. If this system is fundamentally flawed, no amount of knowledge-no amount of repetition of human rights concepts-will by itself correct its defects. Rather, these need to be studied and corrected by practical actions. Hence research and intimate knowledge of micro-level issues must become an integral part of human rights education and related work. This is the key issue in promoting and protecting human rights.

The work of human rights monitoring mechanisms is mainly based on correction of individual violations. This approach is inadequate when dealing with systemic breaches. For example, a country may be condemned for acts of torture, mass murder, crimes against humanity and other violations, and a monitoring body may make some recommendations to correct these. However, monitoring bodies have neither the mandate nor capacity to engage in studies on the actual functioning of components within the justice system-the police, prosecutors and judiciary-through which such recommendations have to be achieved. Thus, even if one person or another is punished, the actual system allowing violations remains, and may even get worse.

Another wrongly held belief is that enacting legislation on human rights will by itself result in improvements of rights. Legislation can work only through the mechanisms for administration of justice in each country. If those mechanisms are fundamentally flawed then legislation will remain simply in the books and will be used merely to confuse monitoring bodies into believing that actions have been taken to improve conditions. For example, a constitution may provide for fair trial, however the criminal investigation, prosecution and judicial systems may not have reached a credible standard. Such legislation then only mocks the victims and cynically manipulates monitoring bodies and the international community.

article 2 is being inaugurated to draw global attention to article 2 of the ICCPR, and make it a key concern of all partners in the global human rights community. This integral article deals with provision of adequate remedies for human rights violations by legislative, administrative and judicial means. Sadly, article 2 has become the forgotten component of the ICCPR. There is a dearth of relevant international jurisprudence, and hardly any mention of it in the enormous volumes of annual literature on human rights.

The Secretary General’s comments now make it possible to at last begin strenuous international efforts for implementation of human rights standards in accordance with the principles established under article 2, as articulated in this journal over three years ago.

For those who are serious about the meaning of article 2 in Thailand, the time has come to demand that the historic limitations to judicial power in the country be overcome. The concentration of actual power in the hands of the executive cannot be sustained if human rights are to be given real meaning. They will only seriously take root through developments in the judiciary together with the participation of people’s organisations. This is the meaning of article 2, and the significance of the rule of law gaining way over the rule of lords.

The contents of this report

The body of this report consists of the recent submission on Thailand to the UN Human Rights Committee by the ALRC in anticipation of the country coming for review. That 104-page document, ‘Institutionalised torture, extrajudicial killings and uneven application of law in Thailand’, was submitted to the Committee in March 2005. The Committee will consider Thailand’s compliance with the International Covenant on Civil and Political Rights in July. The original document has also been made available in full on the ALRC website (www.alrc.net).

In this report, the submission has been broken into a number of parts. Some sections have also been excluded, where they had been published in earlier editions of article 2, notably in the ‘Extrajudicial killings of alleged drug traffickers in Thailand’ special edition. Therefore, there have been minor changes in content to allow for publication. In particular, numbering and references of appendices have been modified. Other text is unchanged.

The body of the ‘Institutionalised torture, extrajudicial killings and uneven application of law in Thailand’ submission follows, as do the ALRC’s recommendations to the Human Rights Committee.

The appendices include a partial list of persons reported killed during the 2003 ‘war on drugs’ and letters by the ALRC and AHRC concerning institutionalised torture, extrajudicial killings & uneven application of law in Thailand, which appeared in the original submission. Additionally, there is an article by Tyrell Haberkorn, which was also submitted to the Human Rights Committee, by the Thai Working Group on Human Rights Defenders, two recent statements by the AHRC, and oral statements by the ALRC to the 2005 annual session of the Commission on Human Rights. One of the latter includes a statement to the Commission by the wife of disappeared human rights defender and lawyer Somchai Neelaphaijit.

Acknowledgment & dedication

A number of persons who prefer to remain unnamed made important contributions to the contents of this report, and continue to make important contributions for the protection of human rights in Thailand.

The report is dedicated to the victims of torture in Thailand who are struggling to obtain their fundamental rights to redress, which may perhaps be realised once Thailand has ratified the UN Convention against Torture and introduced it into domestic law. It is also dedicated to Somchai Neelaphaijit, whose tragic disappearance has become a symbol and a cause for human rights defenders in the country and beyond.

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