VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW ASSIGNMENT NATIONAL HUMAN RIGHTS COMMISSION OF THAILAND Group members: Nguyen Mai Chi Nguyen Thuy Duong Le Thi Hang Ha Nguyen Thi Que Pham Thi Thao Nguyen Thi Huyen Trang Hà Nội - 2013 2 I. NATIONAL HUMAN RIGHTS COMMISSION (NHRC) OF THAILAND 1.1 The establishment and development - Establishment The establishment of National Human rights Institutions (NHRIs) generates the hope for a possible way to address human rights concerns domestically. In Thailand, the National Human Rights Commission of Thailand (NHRC) was created under the 1997 Constitution as a mechanism to facilitate compliance with the human rights norms guaranteed by the Constitution, legislation, and other international human rights treaties to which Thailand is a party. The NHRC went into operation in mid-2001. It has a broad mandate from investigating human rights violations and making recommendation regarding remedial actions to the dissemination of human rights knowledge. - The development The Human Rights Protection Act 1999 sets an institutional framework for the NHRC. The NHRC consisted of a chairperson and ten other members appointed by the King on the advice of the Senate. This selection and appointment process for NHRC was changed under the 2007 Constitution, with judiciary playing crucial role. The NHRC, as it stood under the 1997 Constitution, was purely recommendatory body. The drafters of the 2007 Constitution were well aware of these weaknesses; therefore, deciding to give them more teeth. Now, the NHRC can bring legal proceedings on behalf of the victims and in its own name. Further, the NHRC, under the 2007 Constitution, has standing to request judicial review of any legislation, rule, or administrative act that it sees detrimental to human rights. The NHRC under Chairman Saneh Chamalik (2001-2009) was comprised of highly respectful and courageous individuals with knowledge and experience in the field of human rights. They had been openly critical of human rights violations by state officials. They made interventions on a number of critical issues and are willing to confront with the government. According to Asian Center for Human Rights, their works was commendable in terms of systematically raising human rights awareness and monitoring human rights violations. Throughout the first 6 years of the Saneh Commission, the NHRC investigated more than 3000 cases but the government only took one case into consideration and sent it to the Parliament. The new commission, elected in May 2009, is expected to actively use of these new powers granted under new Constitution in order to strictly protect human rights and prevent violating behavior, and fulfill its mandate. 3 1.2. Organizational Structure http://www.nhrc.or.th/2012/wb/en/contentpage.php?id=9&menu_id=1&groupID=5 According to the section 256 of the Constitution of the Kingdom of Thailand (2007), the National Human Rights Commission of Thailand (NHRCT) consists of a President and six members. They are appointed by the King with the advice of the Senate. The qualifications, prohibitions, selection, election, removal and determination of the remuneration of commissioners are provided by law. The person who could become member of NHRCT must have apparent knowledge and experiences in protecting and promoting rights of people regard to the participation of representatives from private organizations in the field of Human rights. 4 The members of NHRCT will hold office for a term of 6 years and serve for only one term. This means, they could only become members of NHRCT once in their life. 1 Chairperson and 6 commissioners of NHRCT (2009 – 2015) - Amara Pongsapich : Chairperson - Dr. Taejing Siripanich, M.D : Commissioner - Dr. Niran Pitakwarchara, M.D: Commissioner - Mr. Parinya Sirisarakarn : Commissioner - Mr. Paiboon Varahapaintoon : Commissioner - POL. GEN. Wanchai Srinualnad : Commissioner - Ms. Visa Benjamano: Commissioner NHRCT is an independent organization with its agency, personnel administration, budget and carry on its activities as provided by law. In sums, NHRCT is an independent organization with a President and six members appointed by the King with the advice of the Senate. NHRCT works separately to protect and promote Human rights in Thailand. It matches with the Paris Principle in which request that every nations should have their own national institutions for the promotion and protection of human rights. Because States are consider to the duty-bearers to respect, protect and promote human rights. Establishing an independent organ working in the field of human rights and strengthening this organ is necessary. 1.3. Powers and duties Article 257 of Thailand’s Constitution (2007), NHRCT has the powers and duties as follows: - To examine and report the commission or omission of acts which violate human rights or which do not comply with obligations under international treaties to which Thailand is a party, and propose appropriate remedial measures to the person or agency committing or omitting such acts for taking action. In the case where it appears that no action has been taken as proposed, the Commission shall report to the National Assembly for further proceeding; - To submit the case together with opinions to the Constitutional Court in the case where the Commission agrees with the complainant that the provisions of any law are detrimental to human rights and beg the question of the constitutionality as provided by the organic law on rules and procedure of the Constitutional Court; - To submit the case together with opinions to the Administrative Courts in the case where the Commission agrees with the complainant that any rule, order or administrative act is detrimental to human rights and begs the question of the constitutionality and legality as provided by the law on establishment of Administrative Courts and Administrative Court Procedure; 5 - To bring the case to the Courts of Justice for the injured person upon request of such person if it deems appropriate for the resolution of human rights violation problem as a whole as provided by law; - To propose to the National Assembly and the Council of Ministers policies and recommendations with regard to the revision of laws, rules or regulations for the promotion and protection of human rights; - To promote education, researches and the dissemination of knowledge on human rights; - To promote co-operation and co-ordination among government agencies, private organizations and other organizations in the field of human rights; - To prepare an annual report for the appraisal of situations in the sphere of human rights in the country and submit it to the National Assembly; - To do other powers and duties as provided by law. In the performance of duties of the National Human Rights Commission, regard shall be had to interests of the country and the public. The National Human Rights Commission has the power to demand relevant documents or evidence from any person or summon any person to give statements of fact including other powers for the purpose of performing its duties as provided by law. 1.4. Procedure for considering complaints - The petition needs to contain the name and address of the petitioner or his/her representative, facts and circumstances, signature. The petition needs to be submitted to the Commission, or submitted to any member of the Commission or through a private human rights organization. A petition can also be submitted verbally. The Commission notifies the petitioner or his/her representative that the complaint has been received no longer than 3 days after its arrival. - After assessing that the complaint falls under the powers and duties of the Commission, the Commission will notify the alleged violator and ask them to respond. - When the response period has lapsed, the Commission will give the parties and opportunity to provide details and present evidence. The parties have the right to bring lawyers or their counsel to the examination proceedings. The Commission may appoint one or more sub-committees to carry out investigations and make factual inquiries. - The Commission then prepares a detailed report, containing all facts, the legal duties and methods for their performance as well as the period for implementation. - If the Commission deems mediation is possible, it can mediate between the parties to reach an agreement for compromise and resolution of the human rights violation. If the parties agree to compromise, the Commission will consider whether this agreement is within the scope of human rights protection, and will prepare a written agreement for the parties and settle the matter. 6 If the Commission finds that there a human rights violation, it shall prepare a report of its examination, specifying the details of the violation, the reasons for its opinion and remedial measures to resolve the violation. This report shall clearly set forth the legal duties and methods of performance of the violator, including the period for implementation of the measures. If the Commission finds that there is no human rights abuse, but that there is an unjust practice from which the aggrieved person deserves a remedy, the Commission may set forth remedial guidelines. - Enforcement: If the mediation agreement is not respected by one of the parties the Commission is allowed to revoke it and proceed with the examination process. If the Commission mandates the performance of certain actions to the violator, and he/she does not comply with them within the time limit specified, the Commission is required to report to the Prime Minister of Thailand who has the right to take action. As a last instance, the Commission can turn to the National Assembly, in case the Minister does not take action. The National Assembly then has the right to require the implementation with whatever measures it deems necessary. Comments: In general, though most functions of Thailand’s NHRC according to this provision complies with Paris Principal on duties of national human right institution, it is easy to realize some shortcomings: - The internationally cooperating duty with UN and other human right institutions is not mentioned. - There is no provision regulating the drafting and consulting duty on human right national report. - The regulation which provides that NHRC has to consider the interest of community and state when implementing its functions can have negative effects on NHRC’s independence. NHRC will be easily influenced by the government and act arbitrarily. 1.4. Relation of Thailand’s NHRC with other institutions - Relation with domestic bodies: • Thailand’s NHRC reports annually to parliament and makes recommendation for government agencies. If the parties concerned ignore its recommendations, it can refer the matters to the Prime Minister to order implementation. In case where the government fails to comply with the NHRC’s recommendation, all NHRC can do is to report to Parliament and leave it to the public to exert pressure. However, this recourse to the Parliament became meaningless during the Thaksin Shinawatra administration as his Thai Rak Thai party had absolute majority in the Parliament. • The NHRC coordinates with the Office of the Parliamentary Ombudsman, to avoid duplication of work. • Thailand’s NHRC cooperate with the military. - Relation with other NHRCs 7 During the 4th Consultative Meeting of the National Human Rights Institutions (NHRIs) of Indonesia, Malaysia, Philippines, and Thailand in January 2008 in Manila, Philippines, they agreed to adopt ASEAN NHRI Forum – a regular forum which fosters collaboration among those on measures to respond to human rights issues of common concern or with inter-border implications; international terrorism; trafficking in persons; migrant workers; economic, social and cultural rights and the right to development; and human rights education. Becoming a member of SEANF enables Thailand’s NHRC to participate more actively in the sub-regional human rights activities. 1.5. Comments - Strong points • Being the highest and the most active institution in protecting and promoting human rights not only in domestic scope but also in the international level. • Playing an important role in putting the human rights provisions in the various declarations into concrete action. • Has done almost all mandate in accordance with the provisions in Paris Principles. • Has taken some positions that challenged the government in support of community rights. Furthermore, NHRC has made recommendations to government agencies - Weak points • The selection process of the current Commissioners already has bad effect on the independence of the NHRC which prevent the NHRC from being influenced by executive or judicial government bodies. The Commission’s members were appointed, rather than elected, thus raising questions on its accountability, impartiality and transparency. The selection process under the 2007 Constitution (the power to select was handed to the Speaker of the House of Representatives, the leader of the Opposition Party and five active judges from different courts) is found not being as fair as the 1997 Constitution’s process (media organizations, political parties and other sectors in the society can take part in). It is said that this process does result to the current situation in which most of the members of the commission are former government officials • While the 2007 Constitution gave the commission more power to prevent human rights violations compared with the NHRC Act, such as the ability to file complaints on behalf of the victims to the Administrative Court and recommend that the Constitutional Court review laws that oppose to human rights, the body has done very little in the past years. The NHRC has shown a marked lack of interest in many cases involving political prisoners, such as the case of Amphon Tangnoppakul, known in Thailand as Akong, who was sentenced to 20 years in jail for allegedly sending four text messages 8 deemed insulting to the Thai monarchy, failed to alert the NHRC of the serious human rights violations. Akong died in prison on cancer May, 2012. In case the NHRC did make recommendations to government agencies, they were largely ignored. For example, NHRC had made recommendations to the government related to cases of torture in the three southern provinces, in which the NHRC urged the authorities to investigate and bring responsible people to justice, but which had been ignored by the government • During the first batch of the Commission, reports and fact finding missions were made public and accessible through websites. Under the current commission, the reports are rarely made public. The reports on the website consist mainly of old reports by previous commissioners. To this date, the NHRC has continued to delay the publication of its fact-finding report on the April–May 2010 crackdown after 37 months have passed. And it is said that the report of NHRC about Thailand human right situation is largely meaningless since the opposition uses the report to attack the government and the government uses it to praise itself. 1.6. Recommendations: - The selection process of the commissioners should change back to the way it was under the 1997 Constitution which brings in the involvement of diverse sectors of society and is not dominated by the judiciary as it is at this moment. If this is included in the plan, the commission might be able to bring back its relevancy once again as an agency that truly works to promote and protect human rights. - The NHRC should undertake its mandate free from intimidation, and with sufficient resources allocated for the purpose. Moreover, NHRC should be granted sufficient power to press the government to implement its recommendation or they can initiate action based on those recommendations themselves. - In order to guarantee those duties, the government should periodically review the role and progress of NHRC in protecting human rights in Thailand and if necessary further enhance its mandate and provide additional resources. - The NHRC’s report which provide a fair and transparent view on human right situation in Thailand have to be updated annually and make public II. OMBUDSMAN 2.1. The establishment and development In the past in Thailand, all incurred troubles between citizens with the officials were solved by the King. Then the ruling power was transferred from the administrative branch to people by deploying special legislative institute to investigate people’s grievances and complaints. The term Ombudsman used to be mentioned in the draft Constitution provided by the Constitutional Drafting Assembly in 1975 but it was deleted by the Legislative Branch. After many social movements and public concerns, political development and reform established a concept of ‘check and balance’ in administrative and political systems, the ‘most democratic constitution considered’ was promulgated in 1997, and the Ombudsman Organic Law was enacted 2 years after that. 9 On 1 st April 2000 the King granted the first Royal appointment of the Ombudsman to Mr. Pichet Soontornpipit. The whole process of development and establishment of the Ombudsman has been fulfilled after 25 years of political evolution. Currently, Mrs. Panit Nitithanprapas is working as Chief Ombudsman and other Ombudsman is Prof. Siracha Charoenpanij. In August 2007, a new constitution was announced after being drafted and hold a referendum. Apart from considering and investigating circumstances and providing justice to people who have been treated unfairly by all types of civil servants or State employees, the Constitution of 2007 has marked major additional roles of the Ombudsman to oversee the ethical practice of politicians, government officials or state officials as well as to establish Code of Ethics to be followed by all agencies. The second role is to follow up and provide recommendations in compliance with the Constitution as well as matter for consideration in support of Constitutional amendment. 2.2 Organizational Structure http://www.theioi.org/downloads-ioi/1k6gq/Organization%20Structure.jpg 2.3. Authorities With some main case handling methods such as: Site surveys and visits directly, Mediation through meetings, Settlement by telephone and Document and official correspondence, the Thai Ombudsman fulfills its authorities which were described in Sections 244, 245, 279 & 280 of Thai Constitution of 2007 and concretized in the Organic Act On Ombudsmen of 2009. The authorities of Thai Ombudsman can be sum up as follows: - Powers and duties: 10 [...]... of NHRC and the Ombudsman in constitution These two institutions play a very important role in protecting human rights as well as promoting the development of human rights in Thailand 11 REFERENCES 1 Nguyen Dang Dung-Vu Cong Giao-La Khanh Tung, Text Book – Human Rights theory and laws, Hanoi National University Publishing House (2011) 2 ANNI Report on the Performance and Establishment of National Human. .. seems not to be a complete national human rights institution yet, because its functions and operations lack of cooperating and linking with international human rights instruments as well as United Nations or other organizations in United Nations system III CONCLUSION Comparing with other countries in Asean, Thailand is one of the countries which are more progressive in human rights issues It can be shown... http://www.theioi.org 8 http://www.lawteacher.net/constitutional-law/essays /national- human- rightscommission -of- thailand- constitutional-law-essay.php 9 http://seanf.asia/index.php/about-us/1-the-asean -national- human- rightsinstitutions-nhri-forum 10 http://www.asiapacificforum.net/news/asean-nhris-call-for-engagement-withregional -rights- body.html 12 ... Publishing House (2011) 2 ANNI Report on the Performance and Establishment of National Human Rights Institutions in Asia - The Asian NGO Network on National Human Rights Institutions (ANNI) Compiled and Printed by Asian Forum for Human Rights and Development (FORUM-ASIA) (2011) 3 Constitution of the Kingdom of Thailand (2007) 4 Organic Act on Ombudsmen, B.E 2552 (2009) 5 The Paris Principles 6 http://www.ombudsman.go.th... support of Constitutional amendment • To act against breach of ethics by holders of political positions and State officials • To prepare an annual report completed with performance, opinion, and recommendations, and submit to the parliament - Limitation of Powers • Ombudsman has no sanction power • Ombudsman could only make recommendation • In case of agency does not comply with recommendation, the Ombudsman... under consideration in a court of law or cases in which the court has issued a final ruling • Complaints relating to personnel management or disciplinary action • Complaints in which the complainant does not comply with the specified rules i.e anonymous, no address 2.4 Comments The Thai Ombudsman is one of the important institutions promoting and protecting human rights in Thailand It is given a quiet... complaints relating to faults of a civil servant, member or employee of a government agency, state enterprise, or local government even the statutory agencies and the Courts • To refer the Constitution-violation cases to either Constitutional Court or an Administrative Court, provide recommendations to protect the provisions of Constitution and matter for consideration in support of Constitutional amendment . http://www.nhrc.or.th/2012/wb/en/contentpage.php?id=9&menu_id=1&groupID=5 According to the section 256 of the Constitution of the Kingdom of Thailand (2007), the National Human Rights Commission of Thailand (NHRCT) consists of a President and six members. They. by law. In the performance of duties of the National Human Rights Commission, regard shall be had to interests of the country and the public. The National Human Rights Commission has the power. Trang Hà Nội - 2013 2 I. NATIONAL HUMAN RIGHTS COMMISSION (NHRC) OF THAILAND 1.1 The establishment and development - Establishment The establishment of National Human rights Institutions (NHRIs)