“The prohibition of torture is absolute and impermissible in all circumstances”,

affirmed Professor Emeritus Vitit Muntarbhorn, the Independent Expert on the Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity (SOGI) who spoke at “Torture Bill, Still No Justice”. The event to mark June the 26th as the International Day in Support of Victims of Torture was organized by Amnesty International Thailand, the International Commission of Jurists (ICJ), Cross Cultural Foundation (CrCF) and the Association for the Prevention of Torture (APT) and the Canadian Embassy.

In 2007, Thailand signed and ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). However Thai law still lacks clear definition and this affects its interpretation in legal cases. Legal investigations face difficulties when the perpetrators are state agents, and thus, the victims cannot access justice. Even though, there have been efforts pushing for a passage of the Prevention and Suppression of Torture and Enforced Disappearance Act but in the end, the National Legislative Assembly (NLA) dropped the proposal. Since then, there has been no more discussions about the draft law.

Professor Emeritus Vitit Muntarbhorn said "Torture has always been practiced as long as there were humans. But in the last decades especially since the second world war, when millions of people were killed and tortured, human beings have learned a harsh lesson from that war. At the end of the second world war, the United Nations was set up in order to uphold the principles of the rights to life and the rights to be free from torture. These rights are absolute and extremely important. It is sad that in many cases, people who tried to help torture victims become victims of torture themselves. For example, the lawyer Mr. Somchai Neelapaijit who was eventually forced disappeared, was at the time of his disappearance working to assist those who were tortured and killed."

 

“In our country, there are many loopholes for torture, such as the use of the Emergency Decree on Public Administration in State of Emergency which allows individuals to be held in unofficial places of detention which puts them at greater risks of torture. The Martial Law Act also allows longer detention which increases the risks of torture. Therefore, good principles whereby everyone is placed under the due justice process will protect everyone including the officials themselves.

 

]The best way is to bring those individuals to the court of justice which will help protect the state agents from being accused of committing torture. Prevention of torture goes hand in hand with the right to the court of justice.”

Targeting the bad guys instead of moving them to new posts elsewhere

Although Thailand ratified the CAT which provides a clear definition of torture, the Thai Criminal Code and Constitution have provisions against torture but fail to give clear definition of torture.

“The challenge lies in the investigation process because it involves authorities both in the positive and negative ways. This makes it very difficult to identity the perpetrators and therefore, impunity is common. It is unlikely that the perpetrators get punished, especially when they are state agents from particular agencies. Instead, the more common practice is to transfer them to other jobs in other locations.

Victims, their families and the victims’ representatives be it their lawyers or NGO’s, all face enormous obstacles in accessing justice. We need to give more consideration to the prohibition of torture as an absolute right.”

Prof. Emeritus Vitit listed what he would like to see;

1.) I would like to cheer on, without any further delay, the passage of the draft bill which covers both the issues of torture and involuntary and enforced disappearance as defined in international law.

2.) Within our domestic domain, we need to improve the law and rules that create loopholes such as the Emergency Decree, the Martial Law Act as well as other orders which lead to the lack of transparency as well as impunity.

3.) If there were any violations of rights, it should not result in the transfer of those officials to other jobs. The policy in dealing with perpetrators should be very clear.

4.) Facilitate regular communication between the victims and their families. Make it easier for their families to visit them.

5.) Attacks on human rights defenders have to stop. Respect human rights activists who are making the situation more transparent which in turn should make the job of the authorities easier.

“I understand that the international communities are aware of charges filed against human rights defenders in Thailand. This has to end because it goes against human rights principles. We should uphold the international legal standard by ensuring all actors are accountable and impartial and by stopping officials who are perpetrators themselves. The future direction is greater awareness of rights and justice which should guide all authorities to act within the law and refrain from abusing their power. These are the challenges we are all facing,” said Prof. Emeritus Vitit Muntarbhorn.

Tears of victims

When the law is unclear, the victim suffer multiple damages both physically and mentally. Mr. Issma-air Teh is the president of Pattani Human Rights Network (HAP) and the victim of torture. In 2008, when he was a student, he was arrested without charges under the Martial Law Act. He was detained longer than the period allowed by law. There were also evidences that he was physically harmed. The Administrative Court gave the verdict that the army section 1 paid him compensation.

“Even after the verdict of the Administrative Court to pay compensation on civil terms, I cannot file criminal charges because I could not identity the abusers since they blind-folded me and tortured me in the dark room. I remember the name of that state office and its location. Only later, I learned that if we had the anti-torture bill, we would have been able to file charges against those who are high up and in charge of that office."

“Victims of physical torture are likely to be fearful and feel threatened by possible further intimidations. After I filed charges, state agents came to the house and threatened me and my parents. They also went to the office to offer financial compensation to settle the matter. This shows that the state does not admit what it has done.” Issma-air voiced his concerns.

Another family of one of the torture victims, Mr. Somsak Chuenjit, the father of Mr. Rittirong Chuenjit who was arrested because he looked like the thief who mugged passerbys for their golden necklace. But once the real thief was arrested, we tried to file for torture case during the police interrogation.

Somsak disclosed that they faced endless obstacles when the authorities refused to file charges following their complaints on three separate occasions. They sent our case to the Office of Public Sector Anti-Corruption Commission (PACC) which took about 2 years to investigate before the case was dropped because the lack of evidence. The case eventually went to court and was considered a criminal case charging [the police] with illegal detention, physical injuries and intimidations. The cases are charged in this manner because we do not have the Anti-torture bill.

“My son was the only one from the family who was a torture victim but his situation affects the whole family. It is as if the fire from hell burned the whole family down. Committing torture in order to force confessions out of innocent citizens brings laurels and benefits to the authorities concerned while victims and their families suffer for the rest of their lives. Whether the victims of torture really committed the said crimes or not, the authorities still have no rights to torture them or violate them in any way. Each person has the right to human dignity”, Mr. Somsak said.

As long as people accept violence, this kind of violation will stay on in our society.

“Thai society still accepts violence and torture, especially in the case of drugs and insurgency. People would say go for it, torture them.” We need to raise the awareness of the society that torture is criminal.”

Mr. Somchai Homlaor, the Senior Legal Adviser of the Cross Cultural Foundation was the next speaker. He said the acts of torture and involuntary and forced disappearance are criminal acts carried out by state agents. This makes it difficult to file legal charges against them. The higher the authorities involved are, the more difficult it is to address these cases. Although Thailand ratified the CAT, it is not being implemented. In Thailand there are no laws to ensure state agents comply with the provision of the CAT.

“I have been a member of the drafting committee for the anti-torture bill. I saw that the National Legislative Assembly (NLA) has been passing several bills each day. However, the NLA rejected this draft bill and sent it back to the Ministry of Justice without giving any reasons for this decision. I maybe wrong but I observed this act as a tactic to delay the passage of the bill. It maybe because this bill refers to the fact that government officials in charge are also responsible for torture. They don’t stop the torture or are complicit with the state agents who commit this crime. According to the draft bill, if found guilty, the government officials in charge should receive at least half the sentence handed down to those who actually torture the victims,” Somchai said.

If the torture is done systematically and the involuntary and forced disappearance take place in a large scale, the case will be considered and charged as a crime against humanity. When you give responsibilities to the top officials, it is the best preventive measure because they will strictly monitor that there is no torture in their units/departments.

“Thai and international human rights organizations are working together to push for the passage of this bill. But in order to resolve this issue, we must go beyond the legal aspect. We need to build a culture that refuses violence because violence only leads to more violence. Most people who commit violent crimes have faced violence committed by others against them in the past. As society does not reject impunity, these violent people live on in our society. Opposing violence is important and needs to be done in all communities. This will give a lasting effect for our future generations,” Somchai concluded.

Calling on the Thai government to honour on its commitments

In their recent joint statement, Amnesty International and the International Commission of Jurists (ICJ) called on the Thai government to honour its commitments to prevent and eliminate torture as was expressed by the government at previous international forum.

These commitments include the victims’ right to access justice and to be free from intimidation. They also include carrying out an independent transparent and impartial investigation into the acts of torture by state agents, bringing perpetrators before civilian courts, and allowing the International Anti-torture Commission to monitor detention centers. All these commitments can be achieved when the Anti-torture Bill becomes law.

On the same day, the Ministry of Justice confirmed that it has received the draft bill for revision. The revision is required to meet the international standards and to adhere to Article 77 of the new constitution enacted in April before it can be presented to the cabinet once more. A meeting will be held in August to work on the revision.

This is an important issue that hopefully will not end up in silence.