The Thai Constitution and Human Rights
Human rights during times of turmoil
VITIT MUNTARBHORN
December 10 is a special day for at least two reasons. It is Thailand’s Constitution Day and also the anniversary of the Universal Declaration of Human Rights, the “Magna Carta” (Great Charter) of human rights adopted by the United Nations in 1948.
While some may claim that we should be celebrating the 60th birthday of that seminal document this week, others may prefer to call for its commemoration, given the turmoil surrounding the implementation of human rights in many countries.
Much has been achieved globally and nationally in the six decades since the Universal Declaration. Pursuant to the declaration, the world has concretised human rights standards and related monitoring of their implementation through a variety of human rights treaties. There are now nine UN-backed core human rights treaties covering issues such as civil and political rights; economic, social and cultural rights; racial discrimination; women’s rights; child rights; torture; migrant workers; persons with disabilities; and enforced disappearance.
These are complemented by various additional treaties (Protocols) enabling victims to seek redress from the human rights bodies set up by these treaties, such as the Human Rights Committee under the International Covenant on Civil and Political Rights, where the local remedies are inadequate.
On another front, the struggle against impunity has led to the rise of various international criminal courts to punish persons responsible for genocide, crimes against humanity and war crimes, for lack of remedies at the national level. The International Criminal Court is now functioning fully, and there are parallel courts covering various key situations, such as former Yugoslavia, Rwanda and Cambodia.
The UN has also adopted the notion of the responsibility to protect (R2P), calling for States to protect their population from various egregious human rights violations, failing which the UN should act more assertively.
In 2007, the UN adopted another key document which adds value to the increasing emphasis on group rights (peoples/communities), in addition to the rights of individuals highlighted by the nine treaties above. The UN Declaration on the Rights of Indigenous Peoples was born, recognising that “indigenous peoples have the right to self determination”. A recurrent question is this: who are the indigenous and does the right mentioned enable them to secede (break away from the main State)?
The 2007 Declaration does not define the notion of “indigenous,” but generally it is taken to mean the “first peoples” who inhabited the land, for example “Aborigines”. It opens the door to self-identification; groups can self-identify as indigenous, and this has bearing on the history and the cultural patterns/identities of the peoples in the country where they are found.
There is also some confusion concerning whether indigenous peoples are the same as “minorities”. The answer is that they are not the same; indigenous peoples may be in the majority in a country rather than the minority. The Declaration adds that this instrument does not authorise action leading to the break-up of States.
At the national level, the implementation of human rights in keeping with international standards has been witnessed by the reform of many laws and practices antithetical to human rights. Several countries have abolished laws which previously allowed the State to impose capital punishment on persons under 18 years of age. Many countries have adopted laws to curb violence against women. Numerous human rights institutions, particularly in the form of National Human Rights Commissions and Ombudspersons, have come into existence.
Many States have opened the door to a wide range of human rights actors, including civil society and the media, to become more involved in the promotion and protection of human rights. UN agencies working at the national level are also supposed to mainstream human rights in their work.
Despite the above developments, the world is still witnessing a wide array of violations, often linked with the laxity of implementation, lack of democracy, the spread of violence, and the spectre of war facing several countries.
These are aggravated by development deficits and environmental catastrophes, with global warming casting a great shadow on the human race as a whole.
With regard to Thailand, a welcome fact is that the country is now a party to seven of the core human rights treaties mentioned (with the exception of the treaty on migrant workers’ rights and the issue of enforced disappearance). A new publication on the Universal Declaration produced by the UN in cooperation with Thailand’s National Human Rights Commission, is being launched this week as a testament to the voices of people in Thailand on how they view human rights and their implementation, particularly from the angle of justice and human dignity.
At the national level, intriguingly the country has already lived through 18 constitutions, with increasing verbal commitment to human rights in the more recent charters. It is worth recalling that the Universal Declaration of Human Rights has had a direct impact on Thailand’s constitutions from the very start. The section on “rights” in these constitutions has been heavily influenced by the Universal Declaration, although with some key differences.
While the Declaration advocates the notion of “asylum,” thus providing an avenue for the rights of refugees, Thailand has not included this notion expressly in its constitutions. Moreover, the section on “rights” in the Thai constitution guarantees the rights of “Thais,” rather than the rights of all persons irrespective of national and other origins – the latter being the international premise for non-discrimination, a key human rights principle. However, other laws, such as the Child Protection Act, entrench the notion of non-discrimination in the Thai legal system.
Given that in the past many of the country’s constitutions were overturned by coups d’etat, it is often the other laws – such as the Criminal Code and Criminal Procedure Code – which have provided the mainstay, a surer footing, for human rights protection, especially in regard to the administration of justice. Various adjustments to these laws during the past year have improved safeguards for persons affected by the justice system. For instance, women victims are now to be interviewed by trained women law enforcers. The age of criminal responsibility at which young persons will be accountable under the criminal law was recently raised from seven years of age to 10 years of age (although the latter is still too low).
Yet, the crux is the implementation of human rights at the national and local levels, and over the past year, the relationship between human rights and related limitations in times of turmoil has been most volatile.
First, there is the key challenge of the linkage between human rights and democracy. That nexus implies that the rights of the majority must be respected, while not overlooking the rights of minorities. While democracy involves more than the electoral process based on rule by the majority, rule by the majority is internationally the rule and not the exception.
The position adopted by some sectors of society that the majority should be sidelined because they are seen as less educated, from a lower economic stratum and/or from a different geographic area, is contrary to human rights law and international practice.
Second, what is the content of the right to freedom of association/assembly (“to demonstrate”) and what are the limits to be imposed in times of turmoil?
While some rights such as the right not to be tortured are absolute and cannot be constrained under any circumstances, other rights, including the right to freedom of association/assembly, can be subjected to various limitations.
The international human rights framework indicates that the right to demonstrate must be exercised peacefully and it can be constrained on the basis of the law (and not arbitrarily), when it is necessary to do so, the limitations being proportional to the risk, to be tested against the backdrop of what is permissible in a democratic society.
These parameters indicate that while people have a right to be on the streets to demonstrate, they are not entitled to take over key facilities, such as airports, which are the lifeline of the local and international communities.
However, if law enforcers are to act against these people, use of force is to be a matter of last resort and it has to be truly necessary and proportional to the circumstances.
Third, there is a variety of state-related security laws which are invoked here in times of turmoil. Do they comply with international standards and do they conflict with human rights?
These laws include the Criminal Code, the Martial Law Act, the National Emergency Decree and the more recent National Security Act. Several of these laws need to be reviewed to ensure their compliance with international standards.
For instance, when a state of emergency is declared, it is necessary for the authorities to report this situation through the UN to the member States of the International Covenant on Civil and Political Rights, to ensure transparency and balance. This has not yet been done in the case of this country, even though the state of emergency has been announced on various occasions.
Also those national laws should not and cannot condone in principle or practice breaches of human rights, such as freedom from torture and cruel treatment, and the injunction against abductions (“enforced disappearance”).
December 10 thus provides a key opportunity for much needed soul-searching in relation to our values, knowledge-base, attitude and behaviour and our commitment to democracy, peace and human rights. It is not a day for self-congratulation or despair. Rather, it is a moment to reflect and self-reflect not only physically but also spiritually. Perhaps, a moment of respite, even in troubled times.
Vitit Muntarbhorn is a Professor at the Faculty of Law, Chulalongkorn University. He has helped the UN in a variety of capacities, including as an expert, consultant and Special Rapporteur.
MARUAH Singapore 