Statement of the National Human Rights Commission of Thailand
No. 4/2020
Concerning Country Reports on Human Rights Practices 2019
of the U.S. Department of State
 

           Following the issuance of Country Reports on Human Rights Practices for 2019 by the U.S. Department of State, the National Human Rights Commission of Thailand (NHRCT) has examined the report concerning Thailand and found that it contains incorrect or unfair descriptions about the human rights situation.  In accordance with its mandate and responsibilities provided for in Section 247 (4) of the Constitution of the Kingdom of Thailand B.E. 2560 (2017) and Section 26 (4) together with Section 44 of the Organic Act on the National Human Rights Commission B.E. 2560 (2017), the NHRCT deems it appropriate to provide correct facts about the situation for dissemination to the public on the points which it found incorrect or unfair as follows:
           1. Section 1: Respect for the Integrity of the Person, Including Freedom from Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings
           1.1. A claim that there were numerous reports that the government or its agents committed arbitrary or unlawful killings. According to the Ministry of Interior’s Investigation and Legal Affairs Bureau, from October 1, 2018, to September 25, 2019, security forces--including police, military, and other agencies--killed 39 suspects during the arrest process, a more than three-fold increase over 2018. Authorities attributed the increase to the rise in violent confrontations between security personnel and armed drug traffickers in the northern part of the country, often along the Burmese border.
           The NHRCT is of the view that the reference to statistical information regarding 39 cases of arbitrary or unlawful killings in the fiscal year 2019 lacks sufficient details to lead to such a conclusion. Upon examination of the complaints submitted to the NHRCT, there are cases of suspects killed in a fight during arrest.  However, in some cases it cannot be stated clearly if the death of the suspects is the result of unlawful performance of duty as there is insufficient proof in the cases being examined.
           1.2. A claim that the constitution states, “Torture, acts of brutality, or punishment by cruel or inhumane means shall not be permitted.” Nonetheless, the Emergency Decree effectively provides immunity from prosecution to security officers for actions committed during the performance of their duties. As of September, the cabinet had renewed the Emergency Decree in the southernmost provinces every three months since 2005. Four districts were exempted from the decree: Su-ngai Kolok and Sukhirin in Narathiwat Province, Betong in Yala Province, and Mae Lan in Pattani Province.
           The NHRCT wishes to clarify that the Emergency Decree on Public Administration in the State of Emergency, B.E. 2548 (2005) provides immunity for security officers only in cases where they perform their duty in good faith.  As regards the areas exempted from the Emergency Decree, there are now five districts with such exemption as the government repealed the Emergency Decree in Si Sakhon in Narathiwat province on 11 September 2019.
           1.3 A claim that NGOs reported that authorities occasionally held men, women, and children together in police station cells, particularly in small or remote police stations, pending indictment. In IDCs, authorities occasionally placed juveniles older than 14 with adults.
           The NHRCT wishes to provide information regarding children’s detention that the Juvenile and Family Court and Its Procedure Act, B.E. 2553 (2010) together with its revisions aims to protect child offenders by prescribing various measures to avoid imprisonment and divert them from formal judicial proceedings as much as possible.  In case of children illegally entering the country, the NHRCT had put forward recommendations to the Ministry of Interior, the Immigration Bureau, and the Ministry of Social Development and Human Security that alternative measures to detention be adopted for children accompanying their parents seeking asylum so that they can live with their parents in an appropriate setting while awaiting deportation or resettlement in a third country.  Accordingly, relevant authorities have signed a memorandum of understanding to avoid placing children in immigration detention facilities and allow them to live with their mothers in shelters for children and families which are under the supervision of the Ministry of Social Development and Human Security.
           2. Section 2: Freedom of Expression and Freedom of the Press
           A claim that on July 9, Prime Minister Prayut lifted 76 orders instituted under NCPO rule, including ones that effectively prohibited criticism made with “malice” and “false information” intended to “discredit” the NCPO or the military. Press restrictions still in place include orders that give military personnel the authority to prohibit the propagation of any publication that was likely to “cause public alarm” or which “contains false information likely to cause public misunderstanding” that could potentially threaten national security; and that allow authorities to shut down media critical of the military regime.
           The NHRCT wishes to clarify that at present there are no NCPO announcements or orders authorizing security officers to prohibit the dissemination of any information or shut down any media deemed to be critical of the government as claimed in the report. Previously, there were 8 NCPO announcements and orders relating to the dissemination of information, six of which were already repealed. The remaining two, namely the NCPO announcement no. 26/2557 (2014) on online social media monitoring and the NCPO Head order no. 41/2559 (2016) on monitoring the dissemination of information to the public, had been issued under previous NCPO announcements and orders which were nullified by the NCPO Head order no. 9/2562 (2019).As a consequence, the two announcement and order mentioned above have been rendered ineffective. Currently, the operation of the media is governed by regular laws in force in normal circumstances.
           3. Section 5: Governmental Attitude Regarding International and Non-governmental Investigation of Alleged Abuses of Human Rights
           A claim that the independent National Human Rights Commission of Thailand (NHRCT) has a mission to protect human rights and to produce an annual country report. The commission received 727 complaints from January through December. Of these 446, 52 were accepted for further investigation and 22 related to alleged abuses by police. Human rights groups continued to criticize the commission for not filing lawsuits against human rights violators on its own behalf or on behalf of complainants. Internationally recognized human rights activists Angkhana Neelapaijit and Tuenjai Deetes resigned from the NHRCT on July 31, reportedly due to dissatisfaction with the commission’s internal workings that prevented commissioners from receiving complaints directly from the public and curtailed their engagement with civil society. Following two earlier resignations, their departure reduced the commission staff from its usual seven members to three. In November the presidents of the Supreme Court of Justice and of the supreme administrative court exercised their authority to temporarily appoint four commissioners, bringing the body back to its full complement of seven members. The new appointees, like the three existing commissioners, serve in an acting capacity until the government completes the process of selecting permanent members that was supposed to occur in 2017 following the promulgation of the new constitution.
            The NHRCT wishes to provide clarification on the four following points:
            Firstly, the number of complaints received by the NHRCT from January to December 2019 cited in the report are incorrect.  During such period, the NHRCT received a total of 508 complaints, all of which were carefully examined at the preliminary stage in accordance with its Regulation on the Rules and Methods for Examination of Human Rights Violations, B.E. 2561 (2018) with a view to determining whether further in-depth investigation or coordination with relevant government agencies or non-governmental organizations was needed to protect human rights.  In 2019, the NHRCT accepted 69 complaints for further in-depth investigation, which was carried out in conformity with the law and the afore-mentioned regulation. Some complaints related to matters that should be resolved by the government departments with direct duties and power to do so, while others do not fall under the duties and power of the NHRCT or are within the mandate of other independent organs.
           Secondly, on the claim in the report that the NHRCT fails to file a lawsuit against a human rights violator on its own behalf or on behalf of the complainant, the NHRCT wishes to clarify that the power to file a lawsuit was provided for in the Constitution of the Kingdom of Thailand B.E. 2550 (2007), but not in the Constitution of the Kingdom of Thailand B.E. 2560 (2017) nor in the Organic Act on the National Human Rights Commission B.E. 2560 (2017).  However, the NHRCT may file a complaint on behalf of an injured person in the event where the violation of human rights constitutes a criminal offense and the victim is not in a position to make a complaint on his or her own behalf in accordance with Section 37 of the Organic Act.
           Thirdly, on the claim in the report that two commissioners resigned on 31 July 2020 reportedly due to dissatisfaction with the NHRCT’s internal working method, preventing commissioners from receiving complaints directly from the public and from engaging with the civil society, the NHRCT wishes to clarify that according to section 13 (2) of the Regulation on the Rules and Methods for Examination of Human Rights Violations, B.E. 2561 (2018) a petition may be submitted to any of the commissioners. It is thus impossible to hinder a commissioner from receiving a complaint directly.  As regards its work with the civil society, the NHRCT engage with various sectors in its work in line with the objective stipulated in Section 33, Paragraph 2, of the Organic Act on the National Human Rights Commission B.E. 2560 (2017), which states that in performing its duties under the Act, the NHRCT has the power to promote cooperation and coordination among governmental agencies, private organizations, and civil societies. On the work with civil society within the framework of a sub-committee, Section 29 of the Organic Act provides that the NHRCT may appoint a sub-committee to find facts or conduct studies on its behalf if needs be, bearing in mind the efficiency and cost-effectiveness of such undertaking.
           The resignation of the two afore-mentioned commissioners was effective on 31 July 2019, at 9:30 hours, the time for the start of NHRCT’s meeting on human rights protection and human rights protectionstandard conducted every Wednesday at 9:30 hours. On the day of resignation of the two commissioners, there were numerous issues on the meeting’s agenda. The resignation had left the NHRCT with only three commissioners, which is less than half of the total members of the NHRCT or four commissioners.The meeting thus could not proceed to provide human rights protection for the people and had been suspended for 92 days. Prior to the resignation, the NHRCT had been able to hold meetings regularly to perform its duties of promoting and protecting human rights on a number of issues.
           Fourthly, with regard to the appointment of temporary commissioners, the NHRCT wishes to clarify that the procedure of such appointment is in conformity with Section 60, Paragraph 3, together with Section 22 of the Organic Act on the National Human Rights Commission B.E. 2560 (2017).  The appointment shall be done when there is less than half of the total number of the commissioners.  On 1 November 2019, the Presidents of the Supreme Court of Justice and of the Supreme Administrative Court jointly appointed four temporary commissioners, enabling the NHRCT to continue performance of its duties in promoting and protecting human rights.
           On the selection of the new NHRCT members, the NHRCT wishes to clarify that the selection process started right after the Organic Act on the National Human Rights Commission B.E. 2560 (2017) came into effect on 13 December 2017. The NHRCT is responsible for issuing a regulation onregistration and selection among themselves of non-governmental organizations in the field of human rights and professional councils in accordance with Section 11, Paragraph 3, of the Organic Act in order to obtain their representatives to the Committee for selecting suitable candidates for appointmentas human rights commissioners in the initial period.This process had to be completed within 90 days in accordance with Section 60 (1)-(3) of the Organic Act. Thereafter, it is the duty of the Selection Committee to prepare a list of suitable persons for appointmentas commissioners and submit it to the Senate for approval. The actions related to the selection process undertaken by the NHRCT as mandated by the law are as follows:
           1) The NHRCTprepared a draft regulation on registration and selection among themselves of non-governmental organizations in the field of human rights and professional councils in accordance with Section 11, Paragraph 3, which was completed on 9 January 2018.This was done within the period of 30 days after the date when the Constitution of the Kingdom of Thailand B.E. 2560 (2017) came into force as specified in Section 61 (1). The regulation was effective on 19 January 2018.
           2) Following the coming into force of the regulation mentioned in (1) above, the Office of the National Human Rights Commission of Thailand made public announcement of such regulation and proceeded with the registration of non-governmental organizations under Section 11 (4) and of professional councils under Section 11 (5) in accordance with Section 61 (2) of the Organic Act to enable them to select among themselves persons to be represented on  the Selection Committee, which is mandated to propose a list of suitable candidates for appointment as commissioners in the initial period. 
           3) On 13 March 2018, the Office of the NHRCT held a meeting for representatives of non-governmental organizations in the field of human rights and of professional councils relating to medicine and public health and to mass media to select among themselves persons to serve as members of the Selection Committee in proposing a list of suitable persons for appointmentas commissioners in the initial period in accordance with Section 11 and 61 (3) of the Organic Act. Upon conclusion of the meeting, the Office of the NHRCT notified on 13 March 2018 the result of the selection among non-governmental organizations and professional councils to the Secretariat of the Senate, in its capacity as secretary of the Selection Committee, for further proceedings.
           On 17 May 2018, the Selection Committee started the selection process which has continued up until the present. The Senate has by far approved 4 suitable persons for appointment as commissioners. One proposed candidate is awaiting approval from the Senate while the names for the other two commissioners are yet to be proposed by the Selection Committee.
           Thus, the selection process of NHRCT permanent members is not within the power of the Government as claimed in the report.
           4. Section 6: Discrimination, Social Abuses, and Trafficking in Persons
           4.1 A claim that NGOs asserted rape was a serious problem and welcomed an amendment to the Penal Code enacted in May that struck down an earlier provision allowing sexual-assault offenders younger than age 18 to avoid prosecution by marrying their victim. The amendment replaces the marital option with a new procedure in which youth offenders can avoid prosecution only after successfully completing a rehabilitation program administered by the youth and family court. NGOs expressed concern, however, that the amendment narrowed the definition of rape to acts in which male sex organs were used to physically violate victims, thereby leaving victims assaulted by perpetrators using other body parts or inanimate objects without legal remedies.
           The NHRCT wishes to make clarification on the two following points:
           Firstly, regarding the claim that sexual assault offenders younger than age 18 can avoid prosecution after successfully completing a rehabilitation program, the NHRCT wishes to clarify that Section 277 of the Criminal Code as amended in May 2562 (2019) does not exempt an offender in a child rape case from the punishment. However, in case of consensual sex between children, the court has the discretion to opt for a child’s welfare protection measure for both the offender and the victim pursuant to the child protection law, taking into account such relevant factors as age, personal record, behavior, education and upbringing, the relationship between the children or other factors deemed appropriate for the benefit of the child victim. In addition, Thailand has a specific law for preventing premarital sex, namely the Prevention and Solution of Adolescent Pregnancy Act, B.E. 2559 (2016) with provisions guaranteeing the rights of an adolescent to information and knowledge, to reproductive health services, and to social welfare for a pregnant adolescent and her family.
           Secondly, regarding the concern that the amendment narrowed down the definition of rape by excluding sexual assault committed by using other body parts or inanimate objects, the NHRCT wishes to clarify that the assault in such manner is defined as an offense of indecency under Section 278, paragraph 2, with the penalty equivalent to that for rape under Section 276 and Section 277 of the Criminal Code as amended in May 2562 (2019).
           4.2 A claim that NGOs and the United Nations reported transgender persons faced discrimination in various sectors, including in the military conscription process, while in detention, and because of strict policies in place at most schools and universities which require students to wear uniforms that align with their biological gender. If university or school uniform codes are not followed, students may be denied graduation documents, have their grades deducted, or both.
           ​Regarding the uniform issue, the NHRCT wishes to inform that it has made recommendations to educational institutions and relevant government agencies to review compliance of the rules and regulations concerning the uniforms that students are required to wear during classes, examinations, and graduation ceremony with the Gender Equality Act B.E. 2558 (2015). The NHRCT pointed out that wearing a uniform appropriately according to a student’s sexual orientation and in accordance with the university’s uniform regulations does not affect other students attending the same class or sitting for an examination, and that the university’s regulations compelling students to wear graduation gowns only according to their biological sex limit the expression of their gender identity without justified reasons on the basis of protection for welfare, safety or religious practices. So far, some universities have accepted and taken actions in line with the NHRCT’s recommendations. Additionally, on 2 March 2020 the chairperson of the Committee for the Promotion of Gender Equality reportedly declared the policy of promoting gender equality in society during the signing ceremony of the “Statement of Intent on the Promotion of Gender Equality and Elimination of Unfair Gender Discrimination,” attended by more than 25 government agencies, private sectors, and educational institutions. Such policy includes the recognition of dressing according to one’s gender identity or sexual orientation.
           4.3 A claim that sexual harassment is illegal in both the public and private sectors. The law specifies maximum fines of THB 20,000 ($666) for those convicted of sexual harassment, while abuse categorized as an indecent act may result in a maximum 15 years’ imprisonment and a maximum fine of THB 30,000 ($1,000). The law governing the civil service also prohibits sexual harassment and stipulates five levels of punishment: probation, docked wages, salary reduction, suspension, and termination. NGOs claimed the legal definition of harassment was vague and prosecution of harassment claims difficult, leading to ineffective enforcement of the law.
           Regarding the claim that sexual harassment is vaguely definedin the law, the NHRCT wishes to clarify that in February 2015, Section 397 of the Criminal Code was amended to institute legal punishment for an act of sexual harassment which is defined as an act of bullying, maltreating, intimidating or causing humiliation or annoyance, including when such act is committed in a public place or in the presence of a third party, or bears the characteristics which may be seen as sexual molestation, and by taking advantage of the offender's superior power in his status as commander, employer, or other superior figures over the victim.Furthermore, the Regulation of the Civil Service Commission (CSC) on Sexual Violation or Harassment B.E. 2553 (2010) issued under the Civil Service Act B.E. 2551 (2008) provides for the definition of an act deemed to be sexual harassment quite sufficiently, i.e. an act of physical contact, use of word, gesture, expression or communication by any other means of a sexual nature, including other unwelcome or annoying behaviors of such nature to any person. In order to provide more clarity in practice, on 21 April 2020 the Cabinet approved a set of measures for improving the efficiency of preventing sexual abuse or harassment in the workplace by instructing relevant government agencies to resolve the problems immediately whenever they occur, provide protection to victims and witnesses and report on the implementation of such measures on an annual basis.

The National Human Rights Commission of Thailand
1 September 2020

11/09/2020