The NHRC Report on Human Rights Violations after the Coup: Cabinet Urged to End Arbitrary Arrest and Detention, and Review the Enforcement Special Laws

On 18 May 2016, Thai Lawyers for Human Rights (TLHR) received a report from the National Human Rights Commission (NHRC) that contained information regarding human rights violations in Thailand. This article will outline the issues investigated and the results of the report.

Background and Areas of Investigation:

Previously, TLHR, as well as many other civil society organizations and individuals, had separately submitted complaints to urge the NHRC to investigate human rights violations following the coup. The NHRC then referred the complaint to be reviewed by the Subcommittee on Civil Rights and Political Rights. After the Subcommittee finished the investigation and submitted its review to the NHRC, the NHRC issued the report of investigation No. 1270 – 1294/2558 (2015), dated 24 November 2015. The issues in the report can be summarized in six topics as follows:

(1) Has Martial Law been enforced appropriately and in compliance with the International Covenant on Civil and Political Rights (ICCPR)?

(2) When summoning individuals under National Council for Peace and Order (NCPO) Announcements, and detaining them for up to seven days under Martial Law, has there been any act or an omission that violates human rights?

(3) During the arrest of an individual for a criminal charge or otherwise deprivation of liberty that invokes Martial Law, has there been any acts or omissions that would be considered torture and violations of human rights?

(4) Is the practice of trying civilian cases in the Military Court a breach of civil rights?

(5) During the enforcement of Martial Law that imposed restrictions on individuals’ rights to freedom of expression, academic freedom, freedom of the press, and freedom of assembly, has there been any act or omission that violates human rights?

(6) During the enforcement of Martial Law to restrict public participation in the management of natural resources and energy reform in Thailand, has there been any act or omission of act that violates human rights?

Results of the NHRC Investigation,

Based on the evidence received, the results are as follows:

(1) Has Martial Law been enforced appropriately and in compliance with the International Covenant on Civil and Political Rights (ICCPR)?

Facts from the Complainants Individuals who have been deprived of liberty reported that they did not have any knowledge of the charges against them. When they were detained, the detention facilities were concealed and their families were not informed. During this time, they were all denied their right to have access to their lawyers.

Furthermore, during the raid of their residences, authorities searched and seized their personal computers and related devices. Arrest warrants were issued and their passports revoked. Civilian cases were also subject to the Military Court’s jurisdiction in certain crimes declared by the NCPO (including offences against the monarchy, offences against national security, offences relating to violation of the NCPO Order and Announcement, and offences relating to illegal possession of war weaponry.)

In addition, at least seven of these cases included acts of torture and other cruel, inhuman or degrading treatment or punishment.

Facts from the Representative of the NCPO:

Maj Gen Wijarn Jodtaeng and Col Sanchai Buranasamrit expressed that the enforcement of Martial Law was necessary given the protracted conflicts that accumulated over the years. According to Maj Gen Wijarn and Col Sanchai, had there been no intervention it would have given rise to violence. From late October 2013 to early May 2014, the use of military weapons caused numerous casualties. Therefore, the enforcement of Martial Law was a necessary measure to prevent further violence and casualties. Even though it has drawn much outcry from the international community, it was a necessary measure for Thailand.

Officials had carried out their tasks as per the policy of the NCPO or the Commander in Chief whereby Martial Law would only be used as necessary. The priority shall be given to compromise, and the expression of opinions can be made through the Damrong Dharma Centers.

Review of the Evidence

The Subcommittee focused on three issues including (1) background of the situation prior to the enforcement of Martial Law, (2) the purpose of Martial Law, and (3) the state of emergency situation in accordance with international law.

With respect to the first issue, since 2013, the Subcommittee alluded to the political demonstrations that has been escalating and becoming more violent. These political demonstrations were anticipated to cause a significant conflict between the two parties, pro- and anti-government groups, and give rise to unrest across the country. Therefore, on 20 May 2014, Martial Law was imposed, and a Peace and Order Maintenance Command (POMC) was set up to contain the situation and bring a halt to the demonstrations. Later, on 22 May, a coup was declared and the 2007 Constitution was suspended while the Constitution of the Kingdom of Thailand (Interim), B.E. 2557 (2014) was enforced. Section 4 of the Constitution upheld the rights and freedoms of the people. On 1 April 2015, Martial Law was lifted and, on the same day, the Order of the Head of NCPO No. 3/2558 was enforced, giving excessive powers to the Head of the NCPO.

With respect to the second issue, Martial Law is legislation with the purpose to guarantee the military’s power to protect national security in desperate and necessary circumstances when such protection cannot be provided by civilian authorities. It is a special law that must be used when the country is in crisis, during which time certain rights and freedoms of the people must be limited for the purpose of national security.

With respect to the third issue, Thailand is obliged to comply with the ICCPR in protecting the rights of Thai people. The Thai government can depart from such obligations only under exceptional circumstances, where there is a substantial and imminent danger to national security and where other measures prove ineffective. It is important to note that even in such exceptional circumstances, the right to life cannot be compromised.

(2) When summoning individuals under NCPO Announcements, and detaining them for up to seven days under Martial Law, has there been any act or an omission that violates human rights?

Facts from Complainants

There are three cases where individuals who have been asked to report themselves reported complaints. These three cases involve the case of Ms. Jitra Kotchadet, Mr. Pavin Chatchavalpongphan, and a group of human rights activists. They have reported that arrest warrants have been issued against them, their passports have been revoked, they have been summoned to turn themselves in at a military barracks, and some of them have been deprived of liberty for seven days. There were also six cases where a significant number of officials, who conducted the raids, searched their places, and filed complaints against them.

Facts from the Representative of the NCPO

Regarding the detention of individuals under Martial Law, Lt Col Burin Thongprapai expressed that such detention differed from the detention per the Criminal Procedure Code, whereas the detention under Martial Law has the purpose to investigate matters that raise concerns for the NCPO. According to Martial Law, deprivation of liberty is not a punishment per se but a procedure to investigate possible crimes. Following the investigation, if the individual has committed an offence, they are informed of the charges and brought to justice under the Penal Code.

Facts from Related Agencies

A representative from the Department of Consular Affairs, Mr. Prasitporn Wetprasit, explained that there have been similar cases where the individuals who failed to report themselves to the NCPO had had their passports revoked. Upon a written notice from the Royal Thai Police stating that the Military Court issued warrants for persons not yet arrested, the Department proceeded with the revocation of passports without informing the passport holders as they had no knowledge of their whereabouts. Anyone who has their passports revoked as a result of failing to report themselves following the order of the NCPO would be able to apply for a new passport at the consular office in their country of residence only for the purpose of being able to re-enter Thailand.

(3) During the arrest of an individual for a criminal charge or otherwise deprivation of liberty that invokes Martial Law, has there been any acts or omissions that would be considered torture and violations of human rights?

Review and Emerging Facts:

TLHR has documented at least seven cases involving torture of individuals who have been deprived of their liberties under Martial Law. The Subcommittee visited Mr. Chatchawan Prabbamrung, Mr. Narongsak Plaiaram, and Mr. Kittisak Sumsri.

Mr. Chatchawan Prabbamrung testified that his hands were tied and he was blindfolded when he was brought to a military barracks. During this time, authorities threatened to kill him and his family. He was also subjected to physical torture, including electrocution and suffocation where a plastic bag was used to cover his head.

Mr. Narongsak Plaiaram testified that during his custody in a military barracks, the military officials physically abused with the intention of forcing a confession. He was denied access to his family and was handcuffed at all time. Electrocution was used to threaten him and when he was too slow in answering the questions, the officials would beat him.

Mr. Kittisak Sumsri testified that he agreed to make the confession as a result of the physical abuse inflicted on him. He was physically abused, suffocated with a plastic bag over his head, and threatened with electrocution.

Facts from the Representative of the NCPO

Maj Gen Wijarn Jodtaeng expressed that an offender can be deprived of his or her liberty for the purposes of interrogation under Martial Law, whereas the Criminal Procedure Code did not apply. This deprivation takes the form of an interview where the authorities explore individual’s connections with various groups in order to preempt any act of violence. Male and female alleged offenders are detained separately; males are held in custody in military barracks and females in a women’s military police platoon. During the interviews, no physical abuse or threats took place.

At the time of these inquiries, the persons deprived of their liberties were not alleged offenders. Since the inquiries concerned matters of national security, the presence of lawyer suggests the giving of advice to their client(s), thus the individuals may refuse to give information. Also, various operation units of the NCPO are engaged in secret intelligence work, meaning that if there is something wrong then the team leaders would be held liable.

(4) Is the practice of trying civilian cases in the Military Court a breach of civil rights?

Facts from Complainants

The Bangkok Military Court ordered closed-door trials in a lese majeste case (Article 112) where two civilians were denied bail. Both of them had been remanded by the order of the Criminal Court prior to their remand invoking the power of the Military Court, which later indicted them.

In another case, the complainant made a written statement expressing that he was charged under Article 112 of the Penal Code and the Order of the Head of the NCPO and that charges constitute a violation of his rights. The Military Court does not act independently as it operates under the Ministry of Defence. Thus, the Court is not able to deliver an impartial judgement and is unable to ensure fair administration of justice. Further, the trial process does not comply with the law and the complainants do not receive fair trial of their cases.

Moreover, the complainants were denied the right to bail, which hindered their ability to prepare a defence. The reasons given for the denial of bail included the concern that the complaints were flight risks. However, no investigations took place to establish this claim. It is clear that the individuals’ rights to open trial are not guaranteed. Therefore, subjecting the complainants and other civilians to the jurisdiction of the Military Court leads to an unfair trial.

Facts from the Representative of the Judge Advocate General’s Department (JAG)

Lt Col Putthipong Cheepsamuth explained that the judicial process in the Military Court is compatible with the Criminal Procedure Code and the trials are conducted transparently. The Military Court judges are independent and cannot be influenced by anyone. The procedure for ordering closed-door trial in the Military Court is similar to one in the Court of Justice. A closed-door trial can be ordered in a case related to an offence against public order or public morals, against national security, or if the plaintiff asks so.

The courtroom in the Military Court can only accommodate about 30 persons. A number of international agencies and foreign missions as well as media asked to attend certain trials; the Military Court has never rejected anyone from attending these trials, except for cases under Article 112 that involve references to the insulting remarks against the Thai monarchy. These measures are prescribed by the law, which the judges have to abide by. There is no specific policy on this matter.

Further, temporary release from detention is subject to the discretion of the Military Court. There is no instruction or policy issued by the Military Court to deny bail.

(5) During the enforcement of Martial Law that imposed restrictions on individuals’ rights to freedom of expression, academic freedom, freedom of the press, and freedom of assembly, has there been any act or omission that violates human rights?

a. Organizing an Academic Event

Facts from Complainants

TLHR planned to hold an event at the Foreign Correspondent Club of Thailand (FCCT) but the authorities prohibited it. Further, the authorities also issued an order to ban a public discussion on the topic of “Democratic Classroom: Chapter 2, the Decline of Dictatorships Abroad” organized by the League of Liberal Thammasat for Democracy (LLTD), and arrested the organizers without producing warrants. The organizers were also denied the right to meet with their lawyers. In addition, the Faculty of Law at Chiang Mai University (in the northern province of Chiang Mai) were planning to hold an event “Happiness and Reconciliation under the 2014 Interim Constitution,” but after they had informed the authorities of the event, the authorities asked them to postpone the forum without given further notice of when the event could be held.

Facts from the Representative of the NCPO

Maj Gen Wijarn Jodtaeng and Lt Col Burin Thongprapai said that the ban on academic events was simply a request for cooperation. It is possible to organize an academic activity at a university. However, the ban had the purpose of ensuring public order and reconciliation under exceptional circumstances. It was a necessary step to move the country forward politically, economically, and socially. Once the country is moving forward, there will be room for individuals to exercise their rights to freedom of expression, whether this expression is political or not.

The Prime Minister has expressed his views in the press many times, stating that we should not demand the right to freedom of expression now as it is possible that doing so would give rise to conflicts, obstructing the government’s Roadmap to Democracy. The military has to intervene to explain and seek understanding since some topics can be sensitive and may give rise to conflicts or hostile groups may rise up against them or simply act defiantly in the same vein. That will create problems. The NCPO does not restrict the right to organize activities. Permission can be sought from the NCPO and, after review its committee may or may not grant approval of the activity.

The NCPO will provide ways. If the activities are organized by state agencies such as University’s Faculties or the Universities, even though they may involve political topics, the NCPO shall provide ways and will grant approval. People can participate in such activities. It is not necessary for faculty members to personally engage themselves in conducting such sensitive activities, which may bring about problems.

b. Freedom of Political Expression by the Student Groups

Facts from Complainants

In the case of Dao Din group, an event was organized during the PM’s visit to Khon Kaen where student activists wore anti-coup shirts and flashed a three-finger salute. Further, other student activists organized an event to mark the coup anniversary in front of the Bangkok Art and Cultural Center on 22 May 2015. Another event in Bangkok occurred on 26 June 2015, where 14 students and activists were violently and forcefully apprehended and taken into custody.

Facts from the Accused Party, the Representative of the Royal Thai Police Refused to Clarify the Matter.

Representative from the NCPO Col Nurat Thongkaew explained that on 22 May 2015 and 26 June 2015, arrests were exclusively carried out by the police force while the military was not involved in the events. Regarding the presence of military officials at the crime scene, he could not confirm. When asked whether offenders charged with offences related freedom of expression should be tried by the Military Court, he did not provide an answer. When asked about the legality of the actions, he suggested that these questions should be addressed to the NCPO in a written form and they would be happy to respond in a letter. He reiterated NCPO’s compliance with the law and that he has studied the law thoroughly. When asked about military officials’ visits at students’ homes and the following of students prior to their arrests, he insisted that no military officials were involved in such cases. He added that it has not been proven that these persons who followed the students and visited the students’ homes were military officials.

Review and Emerging Facts

The Subcommittee on Civil Rights and Political Rights visited students to gather information regarding the above cases. This information can be summarized as follows: the students are against the coup; and the students’ acts were in accordance with the ICCPR. According to the students, judges in the Military Court failed to record important statements that they had made during the trials.

Facts and Opinions of Expert Witnesses

Assoc Prof Kittisak Prokkati of the Faculty of Law, Thammasat University, stated that the enforcement of the NCPO Announcements no. 37/2557 (2014) and no. 7/2557 (2014), and the Order of the Head of the NCPO no. 3/2558 (2015) was confusing. The promulgation of the Order of the Head of the NCPO no. 3/2558 (2015) should have been retroactive in revoking previous orders, thus the students and activists should have been tried in the Court of Justice, not the Military Court. In this case, the students have been indicted per Article 116 of the Penal Code as well. This brought the case within the jurisdiction of the Military Court. If the Military Court deems the acts of the students to be offences under Article 116 of the Penal Code, which carries more severe punishment than the political gathering offence, then the students will be tried in the Military Court. Otherwise, they will be tried in the Court of Justice.

Nevertheless, based on the intent of the orders issued by the NCPO, the defendants should be tried in the Court of Justice. However, the lack of concrete procedures allows the officials to speed up the process and grants them ample power. As a result, the officials are more likely to accuse suspects of more severe crimes. The NHRC should establish a mutual understanding with the NCPO on which acts are subject to the jurisdiction of the Military Court, to prevent confusion and protect human rights.

Mr. Saengchai Rattanasereewong, attorney and member of the Human Rights Subcommittee, commented on the arrest of students based on the allegations that they violated Article 116 of the Penal Code and the NCPO order that prohibits the gathering of five or more persons. He stated that, considering the actual circumstance in light of the two provisions, the students acted within their rights with respect to the expression of political views. As to the claim that the students had been backed by the Red Shirts or the former powers, he stated that, even if this was the case, it is the duty of the authorized officials and authorities to prove the facts before pressing charges. No action should be taken simply based on presumptions.

(6) During the enforcement of Martial Law to restrict public participation in the management of natural resources and energy reform in Thailand, has there been any act or omission of act that violates human rights?

Facts from Complainants

Regarding the arrest of Thai Energy Reform Watch members: the relatives of those who died from violent acts in 2010 and those affected by Barite mining were arrested after organizing an event. Some were allegedly held in custody in a police station cell, and others were detained without being informed of the charges against them, prosecuted under the Public Cleanliness and Order Maintenance Act B.E. 2535 (1992), or invited to negotiate and seek conciliation in ceasing protests.

Facts from the NCPO Representatives:

Maj Gen Wijarn Jodtaeng and Lt Col Burin Thongprapai explained that, given the special situation at present, the authorities have provided channels for persons with different opinions to express their comments. Expressions carried out by means of channeling activities to the street or in public, disseminating fliers, or organizing activities can give the impression that Thailand is still under conflict and allow dissenters to instigate unrest again. The authorities are therefore obliged to preempt such actions, which can result in individuals being invited for a talk to reach a mutual understanding and explore possible venues whereby they can express their opinions. Once the mutual understanding is established between the parties, individuals will not be charged. All Thai Constitutions have guaranteed the right to freedom of expression, but there are instances where the infringement of this right is permissible. The NCPO has allowed people to express their views through the filing complaints with the Damrong Tham Centers and asked that the complaints do not affect the image of authorities carrying our duties under the law. The authorities only impose a limit on some complaints deemed improper.

With respect to the Barite mining case, Col Chanwit Pinmanee stated that the mine owner and the father of the deceased were business partners but had experienced some conflict that resulted in a lawsuit. The Internal Security Operations Command (ISOC) therefore intervened simply to seek reconciliation per the policy of the Royal Thai Army. The dismissal of the case was requested by the head of the local sub-district. ISOC had no involvement. The police officers stated that they are monitoring the ongoing case and would process the case immediately.

Recommendations of the Subcommittee on Civil Rights and Political Rights

1. Regarding the enforcement of Martial Law from late October 2013 until early May 2014, it was understood that the increase in violent acts exceeded the possibility to allow the exercise of freedom of assembly. Therefore, it was acceptable that Martial Law was imposed to protect the security of the nation.

However, even after the coup on 22 May 2014, Martial Law has been used to contain protracted conflicts in an attempt to seek reconciliation, by summoning individuals to report, holding them in custody, or restricting their freedom of expression. It is clear that the enforcement of Martial Law has restricted the rights and freedoms of the people.

The Subcommittee has found that, in the aftermath of the coup, there has been no apparent threat to national security. The enforcement of Martial Law or other special laws therefore restricted the rights and freedoms of the people, was redundant, and not compliant with Thailand’s international obligations.

2. The summoning of individuals to report themselves and the enforcement of Martial Law to extend the detention up to seven days are found to be improper. Restriction of the rights of detained individuals or arbitrary detention is a violation of Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and also the Constitution of the Kingdom of Thailand B.E. 2550 (2007).

The Subcommittee has found that the deprivation of liberty has been carried out without judicial review. Political conflicts should be resolved by political means and should not strip people of their fundamental rights. Alleged offenders should be granted a fair trial and be adjudicated properly.

3. Regarding the claim that suspects in criminal cases or those held in custody have been the subject of torture, the Subcommittee has found that there was neither medical nor forensic evidence that could verify acts of torture. However, the investigation was not carried out fully given the restricted access to the evidence and the lack of cooperation of the related agencies. It should be noted that the deprivation of liberty of a person for up to seven days without disclosing the detention facility and without access to the outside world is likely to allow the use of torture.

4. As to whether the practice of trying civilians in the Military Court is a breach of the right to fair trial, the Subcommittee received a letter from the Secretariat of the National Council for Peace and Order (NCPO) no. (SLT)/38 regarding the results of the human rights violation review. In brief, the letter states that the NCPO Announcement no. 37/2557 (2014) on “the offences to be subject to the jurisdiction of the Military Court” is still relevant and necessary to protect the Thai monarchy and national security.

Nevertheless, the Subcommittee has found that Thailand is obliged to act in compliance with Article 14 of the ICCPR, which guarantees individuals the right to fair trial. In addition, it should be noted that existing universal principles regarding the military justice process and the Military Court stipulate that the Military Court should not have power to adjudicate cases against civilians.

5. As to the restrictions on the right to freedom of expression, academic freedom, press freedom, and freedom of assembly, the Subcommittee has found that such freedoms are fundamental in a democratic society and recognized by the international community. The state has the duty to promote, rather than restrict the exercise of such fundamental rights and freedoms. Moreover, existing laws are already available for the effective control of public assembly and public order. The public demonstrations should be resolved by political means in forms of dialogue and consultation. Heavy-handed measures or security laws will fall short in resolving conflicts.

6. As to public participation in the management of natural resources and energy reform in Thailand, the government continues to restrict mobilization of people based on security concerns. However, it fails to address the main problem of inequality. Without addressing this problem, it is likely that Thailand will continue to experience conflicts and unrest. Taking such measures, which violate people’s rights and freedoms, will simply exacerbate the violence within the country.

The Subcommittee submits the following policy recommendations to the Cabinet:

Recommendations of the National Human Rights Commission (NHRC)

The NHRC has reviewed the complaints and the recommendations of the Subcommittee on Civil Rights and Political Rights and arrived at a similar conclusion. The NHRC’s policy recommendations are as follows:

1. The cabinet should consider reviewing the enforcement of special laws concerning national security and the laws that extensively restrict people’s rights and freedoms. In this review, the principle of proportionality and necessity should be considered and any unwarranted infringement of fundamental rights and freedoms must be avoided.

2. The cabinet should ensure that state agencies and officials are using security laws within their purpose, follow Thailand’s international obligations, and act in accordance with principles of human rights, human dignity and in compliance with the rule of law and as a legal state.

For the sake of national reform and reconciliation, the Announcements and Orders of the NCPO that infringe fundamental rights and freedoms must be subject to a review in order to enhance the protection and promotion of human rights.

The Resolution of the NHRC

In pursuance to meeting no. 41/2558 on 23 November 2015, the NHRC decided to propose the policy recommendations to the Cabinet and instructed the Office of the National Human Rights Commission to follow up on the results.