Calls for justification after bill against torture withdrawn

The decision by the junta’s lawmakers to drop consideration of a bill on torture and enforced disappearance is largely seen as a major setback by civil society organisations and victims’ families who are calling for answers and justifications. 
 
On 28 February, the National Legislative Assembly (NLA) decided to drop consideration of the bill on torture and enforced disappearance which had been submitted in May 2016, almost a decade after Thailand ratified the UN Convention against Torture in 2007.  Thailand signed the Convention on the Protection of all Persons from Enforced Disappearance in 2012 but has not yet ratified it.  
 
Spokesperson of the United Nations Office of the High Commission for Human Rights (OHCHR) Ravina Shamdasani reacted by characterising the decision not to enact the bill as “a devastating blow to the families of those who have disappeared”. 
 
“I think the problem is that many people, including the legal experts, have not yet understood what the definition [of enforced disappearance] is and what the effects and consequences of these serious human rights violations are. This is the root cause of the problem,” said a victim of enforced disappearance who wished not to reveal her identity.
 
“The legal experts in parliament always claim that we already have everything. … But from the victim families’ point of view, it’s not enough, because in criminal law, there is no crime called enforced disappearance,” she told Prachatai. 
 
In 2015, the United Nations Working Group on Enforced or Involuntary Disappearances reported 82 unresolved cases of enforced disappearance in Thailand between 1980 and 2015. Thai authorities often fail to investigate allegations and sometimes even file charges against those who report cases.
 
On 8 June 2016, ISOC Region 4 filed charges against Pornpen Khongkachonkiet, Somchai Homla-or and Anchana Heemmina under Article 328 of the Thai Penal Code and Article 14(1) of the 2007 Computer Crimes Act. They were charged for their involvement in publishing a report detailing 54 cases of torture allegedly perpetrated between 2014 and 2015 during the conflict in southern Thailand. ISOC-4 indicated that 36 of the cases reported of persons are unfounded. The remaining 18 cases are 
 
On Tuesday 7 March, ISOC withdrew the defamation complaints against them. After discussions between representatives of ISOC-4, Cross Cultural Foundation, Ministry of Justice and observers of the OHCHR, it was agreed to set up a committee with the military to verify allegations of torture in the Deep South and to develop mechanisms to prevent human rights abuses in the region. 
 
Prachatai talked with Pornpen and Somchai about the consequences of dropping the bill.
 
 
(From left to right) Pornpen Khongkachonkiet, Somchai Homla-or and Anchana Heemmina
 
Last year, the cabinet endorsed a bill on enforced disappearance and torture weeks before attending the second Universal Periodic Review (UPR) session. Do you think this was in order to avoid pressure from the international community? 
 
Pornpen: The draft Bill has been a work in progress after the Convention Against Torture (CAT) Committee review in 2014. Of course, international pressure for Thailand to comply with international human rights standards is always there since we could not work very much inside the country. I could see also that at this time, the international pressure on criminalising torture and enforced disappearance still remains the same but I don’t why the dropping of the consideration of the draft bill happened just before the ICCPR review which it is a surprise. I thought that they would probably adopt it for the ICCPR.
 
Do you have any idea about why the junta dropped the bill?
 
Somchai: I believe that the Ministry of Justice really want to implement the CAT law and they want to push forward this bill to go through the NLA. But the bill was knocked backed by members of the NLA. I believe that if the government, I mean the cabinet, is really honest, sincere with the moral obligation under CAT, the government should make an effort to demand that the NLA approve the bill. To this extent, I think that it’s true that, within the NLA, there are some disagreements on this bill because most of the members of the NLA are military personnel and police. And, the torture cases in Thailand are mainly committed by these two security branches. 
 
But we don’t really know what are the reasons given by them to not accept the bill. So we need explanations from them. The process of rejection or acceptance should be transparent, because these laws, apart from the obligation under international law, also affect Thai people that [who] may become the victims of torture and enforced disappearance. 
 
Pornpen: It was given by one of the members of the NLA that they dropped the bill because there has not yet been consultation with the concerned agencies. However, the National Council for Peace and Security (NCPO) has already passed many laws without any consultation. And now they are using this argument to say that this law has not yet been widely consulted, which is not true. 
 
Somchai: The drafting committee organised by the Ministry of Justice, is composed of representatives from different agencies - the police, the military, the Ministry of Defence and other bodies. They approved this bill, so the government agencies cannot say that this bill has not been consulted.
 
Do you think it is easier under a civilian regime than under a military one to pass this kind of law? 
 
Pornpen: It depends what are the issues.
 
Somchai: For me, even under a military or an elected government, the military and the police still have much power. 
 
Many civil society and non governmental agencies unsuccessfully tried to lobby the government to pass the bill on enforced disappearance and torture. To you, what could be the other methods to push forward the bill? 
 
Somchai: We need a justification from the government, the NLA and the MoJ. Anyhow, we will keep on pushing, demanding the government to [pass] the law, to [fulfil] the obligation under the CAT. But, what we will do, we don’t know yet because we need more information and explanation from them. 
 
Pornpen: We may have to mobilise academics or public support including the voice of the victims, but it has been difficult because the media was not very much interested about the substance and the importance of this law. So, we have to work a lot to get momentum from the public, including the victims of these groups, that at risk population who have been facing torture, disappearance and abusive power from state officers which has been very difficult to mobilise because they are very far away from power. 
 
So we need to do more work, including academics, some lawyers, some university professors because this draft bill was also drafted by some key lawyers in famous universities. And it has been consulted by them. [Somchai] is a member of that committee [which drafted the bill] under the Ministry of Justice. He attended a lot of meetings, many times, already submitted the draft to many agencies, including the Corrections Department, Attorney-General, police, the army, the lawyers of the military.
 
Somchai: Yes, seminars were conducted many times. So, I don’t know what is the reason for NLA members not to accept this bill.
 
Pornpen: It must be someone who ordered its rejection.
 
Somchai: Actually, [NLA members] can amend, revise the bill because once the bill is approved, they have to set up a committee, a “whip” committee, and [during] that period they may revise some provisions or even organise hearings. But I don’t think that saying that the bill has never been consulted is really the reason not to accept the draft bill.
 
You will jointly set up committee with the military to verify allegations of torture in the Deep South. Do you think it will be harder to work under such committee?
 
Somchai: First of all, I would like to thank human rights organisations, activists and international community for supporting us and demanding the government to drop the case.  Without these special [demands], I don’t believe the case would be ended. Anyhow, the government has the obligation, the duty to promote and to protect human rights. We don’t have the power to do that. 
 
What we can do is to monitor, to suggest the government agencies to do their job. Their job should punish torture. According to our law, torture is not acceptable and is a crime also. It would be good if civil society, the Human Rights Commission can come together with the government agencies in the promotion and protection of human rights, including to prevent torture, especially in the South. 
 
Anyhow, for this kind of cooperation, I want to say that NGOs are not an enemy of the state. We have some experience in working together for some time. So, I believe that for the purpose of the promotion and protection of human rights and the prevention of torture, we can work together with [the government] because this is the obligation of the state already. Anyhow, we need to talk in more detail, about how to make this intention [to work together] to be realised and effective. In the past, when we complained or raised the issue of torture, or extrajudicial killings, they set up a committee to investigate the case.
 
Pornpen: [Committees are set up] by a civilian body in the Deep South, not the military.
 
Somchai: It comprises representatives from NGOs, communities to investigate the case. When [the Committee] found that this is a mistake, the use of excessive force or action with bad intention of government officers or security officers, they remedy or provide some help to the victims or the families of the victims. Many cases happened like this. Anyhow, the point that we haven’t overcome yet is to bring the perpetrators to justice. We hope that by working together, we should go through these errors made in the past. Let’s say that no perpetrators have been brought to justice. 
 
According to what you just said, what is at stake here is to bring perpetrators to justice. How is that possible now that the bill has been dropped? 
 
Somchai: If the bill on torture becomes a law, I believe that we will have more tools. The state and the people will have more tools to solve the problems of torture. But, even though we don’t have that law yet, to some extent, we can use the existing law because torture is illegal under Thai criminal law. And the government officers who commit the act of torture are subject to disciplinary action also. The government, according to the law, has to compensate the victims or the families of the victims. So this depends on the political view and the policy of the government. If they really have the intention or the will to solve this problem, they can do it, even without [a specific] torture law.
 
But, do you think it is even possible to work with the military who are usually accused as the perpetrators of torture themselves to document and prevent torture and other abuses of human rights?
 
Somchai: If they really have the intention to do that, they can do.
 
Pornpen: Torture is not a policy as they always say. So, if they find someone under their control who have done something wrong, it has been an issue where some perpetrators have been brought to justice due to very clear evidence - people died - people have had compensation from a civil lawsuit. But, from a political view, they think that prosecution would be prevention but now they are more on the protection of their own people so that is difficult. We have to break that too.
 
Somchai: [If we have the law], It would be easier to push forward to monitor, or to demand that government agencies comply with the law because the law will require the obligation of the government for the prevention of torture. They must have some measures to prevent torture. It is open for the participation of the victims in process of investigation, or civil society to do their work. Even though, without that law, if they want to, they can do it to a certain level, in the prevention of torture. They said that they will solve this problem. So, time will prove it and let’s see if they will do it or not.
 
Pornpen: And at the same time, we will also continue to document cases and demand for policy change or even some reforms. Because there are some problems within the law, in martial law and the Emergency Decree. They don’t have a regulation so it’s up to the officers to know what to do exactly and they did it on their own. And it’s a violation of the basic rights of the victims.
 
Somchai: And they said they need more cooperation and technical assistance from the office of the OHCHR.