A recent seminar on May 24 hosted by the Ministry of Justice together with international organisations highlighted various stepping stones in the struggle against torture and enforced disappearances in Thailand. There was detailed discussion of the draft national law on the issue. There was also analysis of Thailand's most recent report on its implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT), which was an eye-opener for the public.
With regard to the draft law, the committee set up by the National Assembly has done constructive work in trying to incorporate the key principles of the CAT, to which Thailand is a party, and the Convention against Enforced Disappearances which Thailand has signed but not yet ratified. If the law passes vetting by the Senate, it will facilitate not only action against these crimes but also enable Thailand to ratify the latter convention so as to make it legally binding on the country.
A key stepping stone is that the draft law provides a definition of both torture and enforced disappearances to ensure their criminalisation. Until this law, there was no definition of torture to guide police agencies, even though it is illegal under the 20th constitution (section 28) as well as under the Criminal Code.
Basically, the definition now covers intentional acts committed by state authorities or their agents inflicting severe physical and or mental harm with a view to four violations: to force confessions; to punish the person subjected to the torture; intimidate that person; and or discriminate against them. Thus, the prohibition is not limited to cases of forced confession but encompasses other crimes such as intimidation and discrimination related to severe harm.
On a related front, there is no stipulated crime of enforced disappearance under Thai law and the authorities have tended to demand proof of the death of the victim to proceed with criminal proceedings where people are abducted or "disappeared" by law enforcers. The new law offers a definition which covers intentional acts by authorities and their agents where they deprive a person of liberty, such as through abduction, and refuse to reveal or hide the whereabouts or fate of the person.
There is no need to prove that the victim has died. Interestingly, the draft law offers also a definition of "cruel, inhuman or degrading treatment" which covers a humiliating act and or pain and suffering caused intentionally by authorities. An example of the latter is strip-searching or other invasive acts.
The draft law prohibits those crimes absolutely and by implication, national security related laws such as martial law and the 2005 Emergency Decree, cannot be invoked to justify those crimes.
It also prevents push-backs of people to areas where they might be subjected to torture, thus integrating explicitly the international principle of "non refoulement" (no push-back to dangers) into the Thai legal system. The law extends the jurisdiction of Thai courts to adjudicate upon such crimes even when they take place outside Thailand, thus validating "universal jurisdiction" in the process.
There is explicit mention of "who is the victim" to make claims against the wrongdoers. The notion of "victim" now covers not only the person subjected to the malpractices mentioned but also their immediate family, such as the spouse and children. This will enable the latter to take action more easily.
With regard to enforced disappearances, the international principle is that the prescription period, or the limited time when the case is considered to begin for the purpose of prosecution, does not begin until the whereabouts of the victim is known.
In practice, therefore, the prescription period for taking action against those who commit crimes against victims of enforced disappearances from the 1992 Bloody May incidents or other cases, such as Somchai Neelapaijit, the lawyer who "was disappeared" due official action, has not yet begun. The draft law also sets out a long period for taking action after the prescription period begins, namely 40 years, in addition to severe sanctions.
Law enforcers interviewing a detained person will have to video any questioning of the person. Information acquired through forced confessions is inadmissible in the judicial process, except for the purpose of action against those responsible for the crime. Cases are to be dealt with on a priority basis under the Department of Special Investigations, leading to the special section of the Criminal Court which deals with corruption.
A key challenge is whether the Senate will enable the draft to pass in its current form, as many of the members were appointed as a consequence of the 2014 coup and are conservative in their approach, more attached to national security rather than international standards.
This interlinks with lessons learned from Thailand's most recent report on the CAT which was published by the UN in 2021. While it is more detailed than the previous report, it has a tendency to discuss the happenings in the official prison system under the Ministry of Interior rather than the practices which take place outside that system.
Most importantly, there is the question whether various national security laws, such as the Emergency Decree and related system, open the door to malpractices, such as torture. That decree, for example, gives the authorities the power to detain people outside the prison system. This is particularly pertinent to what happens in the various military camps and or the various incidents "on the way".
There is also an anomalous situation where although an "accused" person has the right to access a lawyer, a "suspect" who is not yet officially accused by the authorities, but is detained by the authorities, has no guaranteed access to a lawyer. This loophole has been particularly acute in southern Thailand where national security laws are applied by uniformed authorities, often in opaque settings, with great impact on the local population.
Ultimately, the scorecard in the country will depend on whether it can overcome the pervasive impunity, with a clear message from the top, and ensure that justice is done and is seen to be done.
Vitit Muntarbhorn, is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He has helped the UN as Special Rapporteur, Independent Expert and member of the UN Commission of Inquiry on human rights.
