January 9, 2025
BANGKOK – An auspicious gesture from Thailand in 2007 was its agreement to be bound by the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, otherwise known as the CAT. Recently, Thailand’s record on this front was vetted for the second time by the Committee Against Torture, which monitors implementation of the convention, and a package of anti-torture recommendations landed on Thailand’s doorsteps at the beginning of December 2024.
In this package, the committee welcomed a number of positive developments from the country, in particular the passage of the national law against torture and enforced disappearances in 2022. However, there is much that is amiss, and a raft of needed measures vary from the need to improve laws and procedures to the call to resolve key cases, as well as strengthen monitoring mechanisms and remedies to help victims and their families.
At the outset, the committee found that the definitions of torture and enforced disappearances in the new Thai law were not broad enough.
Under the CAT, torture is understood to cover the infliction of serious physical and mental harm on a person by government authorities and their agents in connection with four elements: to extract a confession, to punish, to intimidate and/or to discriminate against a person.
The committee found that the Thai definition was based on actual knowledge on the part of the authorities, while the preferred definition should cover situations where authorities should know about the malpractice.
The same applies to the definition in the Thai law on the issue of enforced disappearance, which covers situations where authorities deprive a person or persons of their liberty and deny or hide their whereabouts. The current definition in Thai law is too narrow.
Another key area of concern pertains to various procedures which are substandard in the eyes of international law as embodied in the CAT. When a person is arrested under the two key emergency laws in Thailand, namely the Martial Law Act (1914) and the Emergency Decree (2005), they can be detained for up to 37 days without access to the courts.
The committee recommended that instead, the old Criminal Procedure Code of Thailand should be followed: arrested persons must be taken to court within 48 hours.
Importantly, in Thai law, there is a limited period (prescription period) for taking action to prosecute for torture, enforced disappearances and related crimes that varies between 10 and 20 years. The committee advised adamantly that there should be no prescription period at all for such crimes.
The committee heavily criticized a range of national laws in Thailand for resultant injustices. In particular, the Emergency Decree was singled out as limiting access by “persons helping the authorities” to families and lawyers. Section 12 of the decree also unjustly allows authorities to detain people in unofficial places, beyond the radar of the official system embodied by the prison system.
The committee also raised the issue of impunity sanctioned by emergency laws. Under the Emergency Decree, for example, access to the administrative courts to ask for redress is prohibited. The committee went further by singling out for needed reform section 226/1 of the Criminal Procedure Code, which allows the courts to make use of forced confessions. In the eyes of the CAT, such confessions are illegal.
The committee also called for a moratorium from Thailand so as not to apply the death penalty and advocated the need for a law against corporal punishment, as well as improvement in the law on domestic violence. It underlined a preferably stronger presence of the country’s National Human Rights Commission to monitor prisons and ensure impartial and effective investigations of abuses. The committee then raised the need to amend the law on compensation for victims of injustices to ensure that it covers cases of torture and enforced disappearances comprehensively.
In reality, the Committee Against Torture is somewhat different from other UN committees under UN human rights conventions, since it is very explicit about various cases needing attention. It lists prominent cases by name for attention, for example the Tak Bai case, where over 80 people died at the hands of uniformed officials, mainly due to suffocation from being crammed in various vehicles. No one has been found guilty of these crimes.
The time limit for prosecuting the culprits under Thai law expired recently, and the committee’s advice to discard the prescription period is clearly targeting the aberrations surrounding this case.
Another area of concern today is “transnational repression”, whereby a state, usually in conjunction with a neighboring state, intimidates its nationals in the second country where they have sought refuge or live. The committee explicitly raised the case of Vietnam’s Montagnards who sought refuge in Thailand a while ago.
Such a person is regarded as a “person of concern” by the Office of the UN High Commissioner for Refugees, or the equivalent of a refugee, and should not be sent back to their country of origin where there may be a danger to the person’s safety. Regrettably, not only have such persons of concern been arrested, but they are also now threatened with extradition to their country of origin.
Given that Thailand will become a member of the UN Human Rights Council in 2025, it should act in an exemplary manner and desist from human rights transgressions.
On a related front, a number of Cambodian refugees were sent back to their country very recently, in breach of Thailand’s anti-torture law and the CAT. They are now in prison in their country of origin as part of that transnational repression, exploited for political expediency.
Policymakers at the apex of the system, please take note and rectify expeditiously and effectively.