Thai hu­man rights body in state of flux

Bangkok Post - - OPINION - VITIT MUNTARBHORN

It was the coun­try’s peo­ple-based 16th con­sti­tu­tion (1997) which es­tab­lished Thai­land’s Na­tional Hu­man Rights Com­mis­sion. The ex­pec­ta­tion was that the com­mis­sion would act as a pro­moter and pro­tec­tor of hu­man rights, with due re­gard for univer­sal stan­dards, com­ple­ment­ing the con­sti­tu­tion and na­tional laws. It would also be a check and bal­ance mech­a­nism, es­pe­cially where the tra­di­tional pil­lars of the state might not be ful­fill­ing their tasks or im­pinge on hu­man rights.

To­day the com­mis­sion is part of global net­work of over 100 na­tional hu­man rights in­sti­tu­tions, un­der an um­brella or­gan­i­sa­tion known as the Global Al­liance of Na­tional Hu­man Rights In­sti­tu­tions (pre­vi­ously known as “the In­ter­na­tional Co­or­di­na­tion Com­mit­tee”). The al­liance gives ac­cred­i­ta­tion to mem­bers, based upon var­i­ous cri­te­ria known as the “Paris Prin­ci­ples” con­cern­ing na­tional hu­man rights in­sti­tu­tions, adopted by the UN Gen­eral As­sem­bly in 1993, namely: a broad man­date, au­ton­omy from the govern­ment, in­de­pen­dence of ac­tion, plu­ral­ism of com­po­si­tion, ad­e­quate re­sources and ad­e­quate in­ves­ti­ga­tion pow­ers. Those in­sti­tu­tions ad­her­ing to these cri­te­ria are clas­si­fied as grade A, fol­lowed by those in an am­biva­lent sit­u­a­tion clas­si­fied as grade B, and those un­der par clas­si­fied as grade C.

In­ter­est­ingly, the record of this coun­try’s com­mis­sion has been through three phases in a state of flux, par­al­lel­ing the his­tory of the coun­try. Gra­da­tion of its sta­tus by the al­liance has also fluc­tu­ated. The first phase was from 1997 on­wards till 2007 when a new con­sti­tu­tion (the 18th) took ef­fect af­ter a coup. The sec­ond phase was from 2007 on­wards till 2017 when another con­sti­tu­tion (the 20th) took ef­fect also af­ter another coup. Now the third phase has be­gun, bol­stered by not only a new con­sti­tu­tion but also a new or­ganic law con­cern­ing the com­mis­sion, oper­a­tional since the end of 2017.

A key strength at the time of the first phase was that the se­lec­tion process for the 11 mem­bers of the com­mis­sion was very par­tic­i­pa­tory. The se­lec­tion com­mit­tee was com­posed of over 20 peo­ple, about half of whom were drawn from civil so­ci­ety. This pro­vided the un­der­pin­ning for choos­ing the can­di­dates in­de­pen­dently of in­flu­ence from the ex­ec­u­tive branch of govern­ment and in a spirit of plu­ral­ism. The com­mis­sion was also ac­corded grade A by the in­ter­na­tional com­mu­nity.

How­ever, the pow­ers of the com­mis­sion were con­strained by the fact that even though it could send re­ports and rec­om­men­da­tions to the ex­ec­u­tive branch in the quest of reme­dies, re­ac­tion from the lat­ter was muted. In re­gard to in­ves­ti­ga­tions, the com­mis­sion was faced with a large back­log of cases dur­ing its ten­ure. More­over, it could not lit­i­gate be­fore the courts and had to go through the coun­try’s om­budsper­son to ac­cess the courts.

The sec­ond phase of the com­mis­sion’s his­tory was un­der­mined by the fact that un­der the 2007 con­sti­tu­tion, civil so­ci­ety par­tic­i­pa­tion in the se­lec­tion com­mit­tee was se­verely cur­tailed. The seven-mem­ber se­lec­tion com­mit­tee com­prised mainly the ju­di­ciary, to­gether with a cou­ple of politi­cians. This lack of pub­lic par­tic­i­pa­tion un­der­mined the cred­i­bil­ity of those who were se­lected as com­mis­sion­ers. The num­ber of com­mis­sion­ers was also re­duced to seven. In the func­tion­ing of the com­mis­sion, other im­ped­i­ments to its ef­fec­tive­ness arose, par­tic­u­larly the lengthy process of in­ves­ti­ga­tions, bear­ing in mind that as from 2010, this was a time of volatile po­lit­i­cal con­fronta­tions. The law was also un­clear con­cern­ing whether the Com­mis­sion would en­joy im­mu­nity from lit­i­ga­tion.

Dur­ing this sec­ond phase, the sta­tus of the com­mis­sion was down­graded by the in­ter­na­tional com­mu­nity to grade B, pri­mar­ily in re­gard to is­sues con­cern­ing its in­de­pen­dence and ef­fec­tive­ness. Iron­i­cally, dur­ing this phase, the com­mis­sion had more pow­ers than dur­ing the first phase. Un­der the 2007 con­sti­tu­tion, the com­mis­sion could take cases di­rectly to court, rang­ing from the Con­sti­tu­tional Court to the Ad­min­is­tra­tive Court, as well as or­di­nary courts of law, with­out hav­ing to go through the coun­try’s om­budsper­son. Yet, it also suf­fered from the fact that when it made rec­om­men­da­tions to the govern­ment to take ac­tion to rem­edy vi­o­la­tions, the re­ac­tion re­mained muted.

The down­grade of the sta­tus of the com­mis­sion in the eyes of the in­ter­na­tional com­mu­nity had sub­stan­tial im­pact on the draft­ing of the most re­cent con­sti­tu­tion and or­ganic law con­cern­ing the com­mis­sion. Sig­nif­i­cantly, in this third phase, the se­lec­tion com­mit­tee for the mem­bers of the com­mis­sion has be­come more par­tic­i­pa­tory: there are now of­fi­cially 11 mem­bers, rang­ing from judges to politi­cians, with about half of the other mem­bers drawn from civil so­ci­ety. The num­ber of the cur­rent se­lec­tion com­mit­tee stands at 10 peo­ple, since full rep­re­sen­ta­tion from the po­lit­i­cal par­ties has to await elec­tions.

The com­mis­sion also faces fixed dead­lines to prove its ef­fec­tive­ness. Re­ports con­cern­ing vi­o­la­tions are to be com­pleted in 90 days (ex­tend­able), while other re­ports are to be com­pleted in 180 days.

Fail­ure to sub­mit re­ports on time may lead to the dis­missal of the com­mis­sion­ers. On a more con­struc­tive front, the ex­ec­u­tive branch has also set up a com­mit­tee to re­ceive re­ports from the com­mis­sion and to fol­low-up.

How­ever, un­like dur­ing the sec­ond phase, the pow­ers of the cur­rent com­mis­sion to take cases to court have been con­strained. It can only take cases to the crim­i­nal court where the vic­tims are un­able to do so, while in re­gard to the other courts, it has to act through the good aus­pices of the na­tional om­buds­man. On a more salu­tary note, un­der the new or­ganic law, there is now a stip­u­la­tion guar­an­tee­ing the com­mis­sion’s im­mu­nity from lit­i­ga­tion.

The se­lec­tion of the seven new com­mis­sion­ers is pend­ing. Yet, there re­mains an in­trigu­ing ques­tion. Will the com­mis­sion’s sta­tus be up­graded soon?

Ul­ti­mately, it is not the form which counts but the sub­stance which mat­ters, es­pe­cially through the lens of both hu­man rights and democ­racy.

Vitit Muntarbhorn is a Pro­fes­sor Emer­i­tus at the Fac­ulty of Law, Chu­la­longkorn Univer­sity. He was for­merly a UN Spe­cial Rap­por­teur, UN In­de­pen­dent Ex­pert and mem­ber of UN Com­mis­sions of In­quiry on hu­man rights. He is the au­thor of ‘Unity in Con­nec­tiv­ity? Evolv­ing Hu­man Rights Mech­a­nisms in the Asean Re­gion’.

The pow­ers of the cur­rent com­mis­sion to take cases to court have been con­strained.

APICHART JINAKUL

Amnesty In­ter­na­tional re­leased a re­port that in­di­cates the wors­en­ing hu­man rights sit­u­a­tion in Thai­land.

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