An interview with Senior Researcher at Human Rights Watch. What has Thailand lost in the suppression of the pro-democracy protests at a time when superpowers like the USA and EU have started to pose more questions about Thai politics?
The state’s response to the people’s protests for political and monarchy reform has become more and more extreme, as seen in images of hundreds of police arresting people making cloth banners, the increased use of Section 112 with an even broader interpretation, and the irregular detention in locations outside the area where the incident happened, like Border Patrol Police (BPP) Region 1 headquarters, Pathum Thani, or arresting people without letting anyone immediately know of their fate as in the case with Sirichai ‘New TU’ Natueng or and 'Art' Thotsathep, a volunteer guard.
This increasing violence no doubt has not been overlooked, and neither has the awakening of the Thai people in a way that has never happened before. In the opinion of Sunai Phasuk, Thailand Senior Researcher at Human Rights Watch and a long-time observer of the human rights situation in Thailand, Thailand is playing the hypocrite and this will have a great impact on Thailand’s options in the near future.
Prachatai: How do you see the increase of Section 112 prosecutions in Thailand?
Sunai: If we look at things from the time of Prayut’s announcement in the middle of November 2020 to now, mid-January 2021, the number of cases has increased rapidly. The intensity has also increased. In the first week, I remember it being at 11-12 cases. But now there are 54 cases – this is a really large increase, very quickly, very intensely. We may see this as the state’s reaction towards a challenge that has arisen from the pro-democracy protests which are tied more and more to the issue of the monarchy, away from the original main issues of Prayut’s resignation, a new constitution, an end to threats and monarchy reform.
Sunai Phasuk (Source: File Photo)
But as time went on, Prayut clearly announced that he will not resign, the government clearly announced that they will not resign, the people’s version of the draft constitution was rejected, the threats did not stop. Then for an issue to move forward on, there is only monarchy reform left. To say that the monarchy needs reform, an explanation of its problems is necessary, but when they do explain, they get prosecuted, they get charges filed against them, they get arrested.
It can be seen that in the past, the measures the state took, no matter of it was a persistent, direct dispersal of protests or legal measures such as accusations of illegal assembly, or accusations of violating the Emergency Decree, they could not stop the protests. All that is left is the strong medicine in Thai law, and that is Section 112, a law with severe punishment and likely to have a psychological effect. It is also a response to the fact that the monarchy was challenged, and so a law related to the monarchy was used in retaliation.
The many cases that have occurred, the arrests that have occurred, the increased aggression, they are like the last measures the state has tried to use. But if I am to evaluate whether they will work, I don’t think so, because then the challenge will only get raised to another level. From just making speeches at rallies, they then make cloth banners instead, and hang dummy corpses. Nothing like this has ever happened before.
In the past, talking about the monarchy required caution, people spoke in secret, but now it’s like it can be talked about in the open. The government has tried to put a brake on this but it ends up that the more they try to put a brake on it, the more it gets challenged.
Are you worried that the state’s operations will escalate to illegal methods?
This was something we were afraid would happen at the end of last year, but right after the new year we saw it happening. The cases of New at Khlong Luang Police Station and Art at Bangkaew Police Station are warning signals which show us that illegal methods are being used.
It may not be a long-term method, but at least at the time when we did not know of New’s whereabouts, while the police still refused to admit where they had taken him to, it is enforced disappearance. In simple words, they blatantly lied to New’s friends who went to the police station. They were livestreaming, and the police still said that they took him here and took him there.
It was the same in Art’s case. They arrested him but would not say it was an arrest. They just said they invited him for a meal, which wasn’t so. These are all signals that authorities seem to have raised the level of their legal measures to the ceiling. The officials’ side considers Section 112 as the ceiling for the monarchy, and so they started to show signals that they are ready to go outside the path of the law, was as in the case of New and Art. This is a very, very scary signal.
At the international level, what are the attitudes towards enforced disappearances?
The first point is Thailand is counted as a country that has many cases of enforced disappearances by the UN (United Nations) Working Group. These cases are not considered to have been resolved effectively. We cannot say what has been the fate of those that have disappeared, if they were dead or alive, what were the events that occurred, who was the offender – let’s not even start about bringing the guilty to account.
The second point is the fact that Thailand signed the convention against enforced disappearance [International Convention for the Protection of all Persons from Enforced Disappearance] reflects the intention to not let this problem happen, but when we look back to the first point, we don’t see that any of the problems were ever resolved.
An important point is that expressing the intention to complete the process is only valid when a domestic law is promulgated and ratified. In case of enforced disappearances, Thai domestic law, i.e. criminal law, still has no law specifically on enforced disappearances, no penalties are set out, so the ratification process with the UN is still incomplete. Expressing the intention to do this then just looks like empty talk, and the actions don’t match.
The issue of enforced disappearances is considered to be a crime committed by the state, but in the case of Thailand, the old cases couldn’t be solved, the law still hasn’t been amended, the UN ratification is still incomplete.
Officers still use risky methods to give rise to unending enforced disappearances, starting from arbitrary arrest and detention, detention in places that are not formal places of detention, i.e. not in police stations or prisons, but in military camps and safehouses. The largest number are in the three southern provinces, followed by the use the anti-drugs laws, where officers can exercise the ability to detain people in safehouses.
Next is the case of this emergency situation. When the NCPO became the government, there were many cases of people being taken for detention in several places without saying where. Then when it comes to this more recent situation, the severe emergency situation authorised officials to detain people at the BPP Region 1 headquarters or military camps.
After the severe emergency situation was revoked, there were still cases like New TU where he was abducted and Khlong Luang police did not say where he was for many hours and even gave misleading information that he was at the BPP. There is that problem of abducting a person and not saying where they are. During the time that that are not talking, it is enforced disappearance.
The case of Art at Bangkaew Police Station is similar. He was abducted without them telling anyone where. That was also enforced disappearance.
Has there been any show of concern from the international community on enforced disappearance?
The UN Working Group has received complaints regularly and the number of cases with the Working Group continues to increase, so they communicated back to the Thai government. Simply put, they asked how things were going, but the answer was nothing concrete that can indicate a serious solution to the issue.
There were some cases in the southern border provinces where there were negotiations with the victim’s families to have them withdraw their complaints to reduce the numbers, but that is not a solution. It did not answer who did what to give rise to the enforced disappearances. They merely applied pressure to have them withdraw the complaints.
Now there are newer cases like that of Wanchalearm (Satsaksit) last year when he disappeared and ended up disappeared for a long time, or the cases of temporary disappearance of Art or New. All these reflect an approach to operational practice by officials in a policy that is problematic but has never yet been given up.
After Thailand underwent examination at the United Nations Human Rights Council or the UPR [Universal Periodic Review] last time, a working committee was established headed by the Ministry of Justice. The committee works on following up and investigating cases of enforced disappearance (and torture) cases but it has not done any substantial follow-up on any case since it has been established. Whoever wants to file an appeal can file it.
The issue is then just left there. The working committee is just like a figurehead, a paper tiger, with no concrete achievement. No law has ever come out. The government’s draft (prevention of torture and enforced disappearance) that is in the government-controlled parliament is also not up to international standards. The parallel people’s sector bill is better, but I don’t see any chances of the people’s version beating the bill that the government has proposed.
Originally, the National Legislative Assembly (NLA) was going to consider the Prevention and Suppression of Torture and Enforced Disappearances Act (amended) on 7 March 2019 after it had been rejected and sent to the Council of State to be amended, but this item was taken off the agenda . Time ran out until the general election.
The latest movement on this bill is that the government’s bill and the people’s bill are waiting to be considered in parliament but have yet to be put on the agenda (information as of 22 Jan 2021).
If there is an enforced disappearance, how much can international mechanisms help?
International mechanisms are like a secondary channel. Enforced disappearance is considered to be a crime and severe violation of human rights because it directly affects a person’s life.
Responses to enforced disappearances or suspicions of enforced disappearance must be urgent. The important timeframe is the first 24 hours after an alert, but international mechanisms will not be fast enough in this respect, so we give importance to Thailand having a law that will stipulate enforced disappearance as an offence, set a penalty, have a clear definition, and have an agency with a clear responsibility on this issue.
But since there are no domestic mechanisms, we have to rely on ourselves. In the past when it seemed like someone was going to be disappeared, their family and friends would report to human rights organisations in the country, inform the mass media and help each other search, but that is not an official mechanism or channel.
International mechanisms that exist are in the form of reports by the UN’s Working Group on Enforced Disappearance, and the periodic investigations by the UNHRC. This year, Thailand needs to explain again why we still cannot answer the questions from the last round, what is the direction, including how to explain the new incidents.
Another aspect is countries which are important to Thailand, friendly nations which are important to Thailand and countries which place importance on human rights will have a channel to express concern or bring up human rights as conditions to maintain relations such as free trade negotiations, or lifting the level of relations.
Making agreements may come with an attached condition that serious problems of human rights, especially enforced disappearance which is very serious at the international level, can be used as a condition to further or halt negotiations, Whether it helps or not, it can be used as a condition in negotiations.
Universal Periodic Review (UPR), a procedure for reviewing the human rights situation, is a mechanism for investigating the human rights situation by the UNHRC, which hosts a regular evaluation of the human rights situation in various countries with other concerned human rights organisations every 4 years.
Thailand was last evaluated in 2015 and participated in the human rights situation review in 2016. There was consideration of the issues of the expansion of military authority in maintaining domestic peace and order, torture, lèse-majesté cases, the death penalty, enforced disappearances, martial law, the situation in the southern border provinces, etc.
As a result of the trend that situations of enforced disappearance may be being created, how alert should society be about enforced disappearances?
Society should be very alert because it concerns people’s lives. What we call the important window is the first 24 hours. That is why various human rights organisations, when we receive information of enforced disappearances, we respond right away.
We have to think that a person’s life is in danger. There must be an immediate response and while responding, we need to check that the accuracy of the information is reliable and has not been accepted blindly, but we must respond right away, we must not be relaxed.
In the case of setups, it does happen. Thailand is not the only place. This probably is not the first or last time. But it did not cause human rights organisations to reduce the priority in responding to enforced disappearance appeals. We still respond to enforced disappearance appeals as the most urgent issue and we have to help in the search until something happens.
How do international circles view the use of Section 112 in Thailand?
In the case of Section 112, the international community has been interested for a long time, actually, since the time of the Thaksin government as well, when Section 112 was used as a political tool with the effect of instilling fear, and depriving people of the right to freedom of expression in giving their opinions.
The penalty under Section 112 is considered to be more severe than necessary. In the past it has been like a one-sided accusation – once accused, there is almost no chance of escaping punishment.
Internationally, for laws like Section 112, the UN Special Rapporteurs have provided many comments on it not being in line with democracy which places importance on freedom of expression, holding individuals, including a king, to account. They have always had this stance.
And then during the NCPO era when the situation got a lot worse, their interest was raised a level. There were talks about additional issues concerning the use of Section 112. If you look at the text, it raises great concerns in terms of human rights, but in the NCPO era, new lines were drawn by overinterpreting the text to file charges, make arrests, and prosecute people. People who were arrested and prosecuted during the NCPO’s era were dealt with through problematic methods of arrest, like arbitrary arrests. People were taken to military camps. Things like that followed.
The things that happened led to a more intense investigation in the UPR. The result was that Thailand was criticised a lot. This led to a decision. If we refer to Prayut’s words in public that there was a policy from the palace to avoid the use of Section 112, then this may be understood as a response to the criticism which led to the serious condemnation of Thailand on the international stage on the use of Section 112, which then led to the decision to tell the government and its other organs to avoid using this Section. So Section 112 was not used in charges, prosecutions and rulings for almost 3 years.
But it doesn’t mean that talking negatively about the monarchy was possible in these 3 years. It was still a crime, only that another Section was used instead. Cases that had been filed as violations of Section 112, once they got to court or were with the public prosecutor, they then turned into violations of Section 116 or the Computer Crime Act instead. But then in November 2020, Prayut again announced openly that they will return to using Section 112 again. Then, cases that had got to court were judged under Section 112.
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In parallel with prosecutions, we see a great many arrests and prosecutions. When compared to 2019 when HRW asked the police about Section 112 charges filed in about a hundred cases, but with no action taken, now it seems like the dam is broken. Once Prayut announced in November 2020 that Section 112 was back, it is now all flooding out. There are widespread arrests and prosecutions.
The Office of the Secretary-General of the United Nations expresses its concern from time to time on the expression and use of rights and freedoms of the Thai people which are suppressed through measures that use force and do not use force. They are all being tracked by the international community.
Another thing, before Joe Biden became President of the US, we saw a very important phenomenon. Senior Democrat senators made a joint motion on the situation in Thailand, something that has never happened before. Now its status is still a draft because there is yet to be a senate meeting. They are wait for the new president to hold one.
I believe this motion is likely to pass. It shows that America itself, starting from its legislature, has an interest in the human rights situation and democracy in Thailand, and Biden himself and the Secretary of State previously sent signals that they place importance on the values of human rights and democracy. America should return to being interested in the problems that have arisen in Thailand, more than during the time of Trump, who did not care about this.
Another friendly power is the EU. Now, there are meetings both in the European parliament and the parliaments of the EU’s main member states, like Germany, which has spoken more often about Thailand’s situation and in more depth and detail.
What are your opinions and suggestions on the role of the National Human Rights Commission (NHRC) in this kind of situation?
Actually, the NHRC should long ago have had a larger role than this. In the past we saw the NHRC’s role for a very short time period which was before the increased level concerning the monarchy. At that time, I went into the field and met an NHRC official observing the protest. When the state forces used violence or arrests, the NHRC would respond. This was a good thing for that short period of time.
But when the issue turned to the monarchy, the NHRC seems to have retreated. From their old position of following from far away, now they seem to have retreated. They disappeared again. It is disappointing.
We want to see the NHRC do their duty according to their mandate, which is human rights. No matter what the issue is, it must be given attention. Now it is like the turning of the tide in the NHRC. The old set of commissioners in fact finished their term of office a long time ago but it kept being extended. The selection process of the new commissioners has also been completed, and the only thing left is when the new commissioners will really start work.
When they really start working, they will have very many problems to solve because they will be taking their posts when the human rights situation is strained at all levels in national politics, local issues, resource issues; issues of business and human rights also have problems, even issues in social and cultural rights. That is why the question for the incoming commissioners is how much will they be able to respond to these accumulated problems that have been long overdue.
We must not forget that the NHRC, up until today, has been graded as not being up to standard by UN’s international mechanism. This is the NHRC which has entered into a state that is not up to international standards in its selection process, the qualifications of its commissioners and its neutrality in performing its duties.
Let’s not forget that the NHRC carries out its duties within two legal frameworks, which are the constitution and the NHRC Act which destroys the NHRC’s independence by specifying that the NHRC has a role as a government mouthpiece, in holding a brief for the government if it gets criticised by other countries or anyone else.
It's the NHRC which works under a structure that is not neutral, with problems like having many issues to deal with, its own qualifications not being up to it, and a legal framework that limits its freedom in what it does. No one hopes that the NHRC will do much without some improvement, and large-scale systematic reform of the NHRC must go as far as amending the constitution because the constitution stipulates duties for the NHRC which are not neutral, so it requires a constitutional amendment. If we stay as we are, the NHRC will continue to be bad, or even get worse.
How must the NHRC start to reach international standards?
If the constitution is not amended, if there is no amendment to the NHRC Act, its grade will not improve. If we look at the NHRC selection process for the new set of commissioners about to take up their responsibilities, it was a selection process under a problematic framework. The new set of commissioners will be considered as being underqualified.
Additionally, if we look at behaviour of the NHRC in the past, each of the new set of incoming commissioners, while they had other positions, are known to have been blowing whistles in the People's Democratic Reform Committee mob. That is why there will be the same questions as the time the NHRC was downgraded, when they were also yellow shirts. There will be questions about its neutrality.
It becomes a really large problem. We have to go back and amend the constitution, amend the NHRC Act, then select the NHRC again. Then there will be enough chance for the NHRC to have its status lifted to international standards again.
In this current situation, when the NHRC participates in UN mechanisms, it only has the status of an observer, i.e. they sit and watch, and sit and listen, but they have no right to propose issues, express opinions or say anything.
As of 22 Jan 2020, the Thai NHRC has a grade of B (on a range of A to C) which means it operates by only some of the Paris Principles (the Paris Principles set out the duties of national human rights institutions).
The Sub-Committee on Accreditation (SCA) under the collaborative framework of the Global Alliance for National Human Rights Institutions (GANHRI) has postponed the status evaluation of the Thai NHRC for 18 months after the NHRC requested to change its status from B to A in June 2018.