September 5, 2014
HUMAN RIGHTS COUNCIL
Twenty seventh session, Agenda Item 3, General Debate
A written submission to the UN Human Rights Council by the Asian Legal Resource Centre
THAILAND: Human rights in crisis three months after coup
1. The Asian Legal Resource Centre (ALRC) wishes to raise grave concerns with the Human Rights Council about the deepening human rights crisis in Thailand following the 22 May 2014 coup launched by a military junta calling itself the National Council for Peace and Order (NCPO) and led by General Prayuth Chan-ocha. The NCPO has claimed that it carried out the coup for the vague purpose of “reform” and with the intention to “return happiness to the people.” Instead, the NCPO has carried out mass arrests and arbitrary detention, used executive power to push through a number of orders and measures likely to be damaging to human rights, engaged civil and military courts as tools to restrict political freedom, and extensively constricted freedom of expression. Martial law, which was declared on 20 May 2014, remains in force. After three months of military rule, a temporary constitution bereft of necessary rights protections has been announced and General Prayuth was elected as prime minister by an assembly of 194 people hand-picked by the NCPO.
2. The view of the Asian Legal Resource Centre (ALRC) is that the actions carried out by the NCPO during the first three months of military rule represent significant derogations of Thailand’s responsibilities as a State Party to the International Covenant on Civil and Political Rights (ICCPR).
3. From the outset, the ALRC maintains that no “time of public emergency which threatens the life of the nation” exists in Thailand to justify the introduction of martial law or the military coup, and therefore no grounds exist under Article 4(1) of the ICCPR for Thailand to derogate from these obligations. Although the country has been experiencing political unrest, this unrest is protracted, and nothing in the current circumstances justified the introduction of these measures. Furthermore, the unrest is in large part a consequence of the last military coup, carried out on 19 September 2006. The assessment of the ALRC that the 22 May 2014 coup and the assault on human rights is likely to further intensify, rather than resolve, the unrest.
4. The NCPO has severely restricted freedom of expression through the issuance of Orders No. 97/2557  and No. 103/2557  which place restrictions on criticism of the junta and through the use of Article 112 of the Criminal Code, which stipulates that, “Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.” The ALRC has repeatedly raised the matter of the damage done to the right to the freedom of expression by the use of Article 112 in a series of statements to the Council over the previous four years, the most recent two being those submitted during the twenty-fifth session in March 2014 (A/HRC/25/NGO/61) and the twenty-sixth session in June 2014 (A/HRC/26/NGO/58).
5. While Article 112 has been part of the Criminal Code since the last major revision in 1957, available statistics suggest that there has been a substantial increase in the number of complaints filed since the 19 September 2006 coup and a dramatic increase in action taken in cases following the 22 May 2014 coup. According to the Internet Dialogue on Law Reform (iLaw), there are 13 new cases that are known to have entered the judicial process since the coup; additional, unreported cases may also be in process. In addition, per Order No. 37/2557 , all complaints of violations against the crown and state, including those under Article 112, filed subsequent to the coup are placed within the jurisdiction of the military court, which restricts the rights of those subject to proceedings, including a denial of the right to appeal.
6. The ALRC is particularly concerned about the recent arrests of Patiwat (last name withheld) and Pornthip (last name withheld), who were arrested following a complaint being filed against them under Article 112 in relation to a performance of a play, “The Wolf’s Bride” (Jao Sao Ma Pa) held in October 2013. They were arrested on 14 and 15 August 2014 and have been held without bail since their arrests while the investigation against them continues. Their arrests are part of a broader planned campaign of arrests of those alleged to have violated Article 112 which have been catalyzed by groups of royalist citizens, such as the group calling itself the National Rubbish Collection Organization, which aims to remove “trash,” by which they mean those who question the institution of the monarchy, from Thai society. Law should be used to limit these vigilante actions and protect free speech, rather than to aid in its restriction.
7. The ALRC would like to remind the Government of Thailand that under Article 19 of the ICCPR, restrictions on the right to freedom of expression are only permissible under two circumstances: “for respect of the rights or reputations of others” and “for the protection of national security or of public order (ordre public), or of public health or morals.” While Article 112 is classified as a crime against national security within the Criminal Code, and this is frequently cited by the Government of Thailand when the criticism that the measure is in tension with the ICCPR, to date a clear explanation of the precise logic for categorizing the measure as such has not been provided. The exercise of freedom of expression is frequently messy and productively contentious, but this does not equate to a threat to public order or morals. To raise questions about the operations of power in society are a necessary part of constructing a polity grounded in human rights and the rule of law, not a threat to it.
8. The restriction on freedom of expression and political freedom has also included restriction of activities not explicitly connected to either the junta or the institution of the monarchy. Since the coup, the NCPO has used the provisions of martial law to intimidate and foreclose discussion on development and capital projects affecting citizens, such as those working against the negative affects of gold mining in Loei and those working to raise awareness about the implications of energy sector expansion. For example, on 20 August 2014, eleven activists of the Partnership on Energy Reform were arrested while carrying out a peaceful and non-partisan walk calling for public discussion and to encourage citizens to be actively engaged in decisions about energy development. The walk was surrounded by military troops and the eleven activists were arbitrary detained and held for three days and nights at the Senanarong Army Camp in Songkhla Province. While the ALRC welcomed their release, they should not have been detained in the first place. Further, an additional series of arrests of nine individuals who joined the walk were carried out on 24 August 2014 as this statement was being completed, and the authorities have indicated that those arrested will be charged and processed in the military court for violating martial law, which prohibits public gatherings of five or more persons.
9. The Asian Legal Resource Centre would also like to remind the Government of Thailand of its obligations to uphold Article 9 of the ICCPR, which addresses arbitrary detention and notes specifically that, “1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release…” During the first two months following the coup, the NCPO immediately began a process of mass arrests of those deemed to oppose them. Under the terms of martial law, soldiers can detain and interrogate anyone for up to seven days without having to provide evidence of wrongdoing or bring formal charges. People arrested can be held at irregular places of detention, including permanent or temporary military bases or other sites designated as places of detention. Detention in irregular places means that the possibility for rights violations, including torture, forced disappearance and extrajudicial execution is greatly increased. Those detained, or targeted for arrest and detention, include politicians from all sides of the political spectrum, red and yellow shirt activists, academics, human rights defenders, writers, publishers, and other dissidents and citizens. The methods of arrest and detention have varied widely. While the use of arbitrary detention has faded from public view in the third month of rule by the NCPO, the ALRC remains gravely concerned about the extent of its use.
10. Further, on 2 and 3 August 2014, Kritsuda Khunasen, a red shirt activist and human rights defender who was arbitrarily detained for nearly a month following the coup, released a series of video interviews in which she described being tortured while in detention. She released the interviews, in which she detailed a range of physical and emotional abuse, after she left Thailand. The response of the junta was to first discredit her account, and then to bring weapons charges against her, despite their statement upon her release from detention that they were not going to bring any charges against her. The ALRC urges the Council to remind the Government of Thailand that as a state party to the Convention Against Torture and Other Cruel, Degrading or Inhuman Treatment (CAT) it is obligated to take action to prevent torture, hold perpetrators to account, and provide redress and protection to victims of torture. At a minimum, this would involve an independent investigation into the claims made by Kritsuda Khunasen, rather than to respond with an immediate denial of their veracity. The ALRC is concerned that the torture reported by Kritsuda Khunasen may not be an isolated incident and may instead point to a broader pattern of the use of torture by the NCPO against those deemed to be its opponents.
11. In view of the above and in line with the International Covenant on Civil and Political Rights, the Asian Legal Resource Centre calls on the United Nations Human Rights Council to:
a. Call on the Government of Thailand to immediately revoke martial law and return to civilian rule;
b. Urge the Working Group on Arbitrary Detention to carefully monitor events in Thailand and in particular, derogation of responsibilities under the International Covenant on Civil and Political Rights, and to call on the Government of Thailand to act in accordance with the protection and promotion of human rights;
c. Urge the Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment to investigate the reports of torture by those held in detention following the coup by the NCPO, and to call on the Government of Thailand to act to prevent, investigate, and redress instances of torture;
d. Urge the Special Rapporteur on the Situation of Human Rights Defenders to carefully monitor events in Thailand and in particular, the targeting of human rights defenders to safely carry out their work; and
e. Urge the Special Rapporteur on the Freedom of Opinion and Expression to continue ongoing monitoring and research about the broad situation of constriction of rights and individual cases in Thailand and how this is affected under military rule.
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