Oct 7, 2019 | News
The apparent suicide attempt of a judge in southern Thailand highlights the need for urgent reform of the judiciary to improve its independence from political interference, the ICJ said today.
Judge Khanakorn Pianchana, Vice Presiding Judge of the Yala Provincial Court in Thailand’s restive southern region, reportedly shot himself in the chest following his delivery of a verdict on 4 October in a case in which he alleged political interference in his judicial functions. Judge Khanakorn is currently hospitalized in critical condition.
“This unfortunate incident again shows the need for sustained reforms of law enforcement and particularly of the independence of the judiciary in Thailand,” said Frederick Rawski, ICJ’s Asia director.
Judge Khanakorn had alleged in a 25-page note that he was ordered in confidence to rewrite his ruling exonerating five suspects of murder charges – a decision he had allegedly reached on the basis of lack of sufficient evidence. The five have had been detained and interrogated under special security laws in force in the Southern Border Provinces of Thailand.
Under Thai law, if a superior judicial officer disagrees with a ruling of any judge, he or she must express such disagreement in writing and is forbidden from speaking to a judge in confidence to reverse the ruling.
“The ICJ has worked for years with the judiciary in southern Thailand to improve the administration of justice, especially by addressing problems such as the improper admission of evidence and problematic evidence-gathering by security forces countering armed groups,” Rawski said. “This case again shows how misuse of emergency decrees in southern Thailand has aggravated the political pressure exerted on judges.”
Today, the case was submitted to the Office of the Judicial Commission for its consideration. The Commission, chaired by the President of the Supreme Court, comprises of qualified members who are judicial officers of each level of the Court. Consequently, the Commission passed a resolution to set up a Sub-Committee comprises three of its members to investigate into the allegations.
Particularly because Judge Khanakorn’s claim involves several senior judges in active services, the Sub-Committee set up by the Commission to investigate the allegations must therefore be independent institutionally and functionally, at all stages of the investigation. Their mandate should be broadened to look into whether there is wider pattern and practice of interference beyond this case.
Background
Judge Khanakorn presided over a trial involving the alleged murder of five people in Yala province in 2018. Following the killing, authorities arrested five suspects who were charged with murder, secret association, conspiracy and gun-related offences. If convicted, three out of five defendants could be sentenced to death.
The five suspects were reportedly detained and interrogated under much-criticized special security laws which remain in force in the Southern Border Provinces of Thailand – i.e Martial Law and Emergency Decree. The ICJ has repeatedly criticized how the Martial Law confers upon military authorities the powers to arrest and detain any person without a warrant for up to seven days for interrogation and questioning and does not require detainees to be brought before a court at any stage of their detention. The ICJ has also repeatedly analyzed and criticized the Emergency Decree, which breaches international law and standards, by allowing authorities to detain suspects, with the leave of the Court, for up to 30 days. The law does not require a detainee to be physically brought before the Court during this period.
Information submitted to the court as evidence in this case had reportedly been obtained from the suspects during detention periods prescribed under Martial Law and the Emergency Decree. Judge Khanakorn noted in his statement that he was of the view that any information obtained during this period should not be admissible because rights protections had not been afforded to the suspects who had been detained under security laws, as they are provided to suspects in other criminal trials. This position had reportedly led to the disagreements between the judge and his supervisor over the case ruling.
The ICJ has repeatedly expressed concern on the use as evidence of information obtained during interrogation under emergency laws in criminal proceedings of security-related cases, in the form of witness statements or inquiry reports from interrogation officials. The ICJ has called on Thailand to review existing standards in all special security laws and relevant articles in the Criminal Procedure Code regarding the admissibility of evidence that are not compatible with international fair trial standards.
Judge Khanakorn also described in his statement that certain evidence needed to have been ruled inadmissible as it had not been collected by competent authorities but by volunteers who were not competent or specialized in evidence collection.
Judge Khanakorn further asserted that interference in his judicial functions had also occurred in 2018 when he had been under pressure to reduce the sentence of three military officers who had been found to have shot villagers to death.
The right to a fair hearing in judicial proceedings before an independent and impartial court or tribunal is guaranteed in several human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), which Thailand is a party. The right is also enshrined in section 188 of the 2017 Constitution of Thailand.
International standards also reaffirm that judicial independence requires not only the independence of the judiciary as an institution from the other branches of government; it also requires judges being independent from each other. Such freedom from undue influence that might come from other judges is guaranteed in several internationally accepted standards, including Principle 1.4 of the Bangalore Principles of Judicial Conduct and its Commentary; article 3 of the Universal Charter of the Judge; and article 2 of the Basic Principles on the Independence of the Judiciary.
Further reading:
International principles on the independence and accountability of judges, lawyers and prosecutors – Practitioners’ guide, no. 1
Thailand: ICJ co-hosts lawyers’ meeting on admissibility of evidence in the national security context
Thailand : legal memorandum – hearsay evidence and international fair trial standards
Thailand : implementation of Thailand´s emergency decree
Contact:
Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Download:
Thailand-Suicide of Judge-News-2019-THA (Thai version, in PDF)
Sep 4, 2019 | News
From 2 to 3 September 2019, the ICJ co-hosted a workshop in Bangkok for justice sector authorities from Thailand on ‘Human Rights Compliant Criminal Investigation and Investigative Interviewing’. The event focused on international law and standards regarding investigative interviewing of victims, witnesses and suspects in criminal cases.
The workshop was co-hosted with Thailand’s Ministry of Justice and the Norwegian Centre of Human Rights, University of Oslo.
The participants included 50 criminal investigators, public prosecutors, representatives of the Ministry of Justice’s Department of Special Investigation (DSI), the Internal Security Operations Command, Ministry of Defense’s Judge Advocate General’s Office, the National Anti-Corruption Commission, the Office of the Narcotics Control Board and the Royal Police Cadet Academy.
A primary objective of the workshop was to promote and explain the principle that interviews which are conducted in compliance with human rights standards produce much more effective results without resort to torture, ill-treatment or coercion. The workshop also addressed the problem of a ‘confession culture’ and looked into how unlawful interrogations threatened the quality and legitimacy of justice sector officials and bodies in meting criminal justice. Participants also conducted discussions and participated in group activities on human memory, investigative management and the conducting of interviews grounded in fundamental principles of international human rights law.
Speakers at the Workshop included:
- Aim-orn Siangyai, Deputy Director General of Thailand’s Rights and Liberties Protection Department, Ministry of Justice;
- Frederick Rawski, Asia Pacific Regional Director, ICJ;
- Gisle Kvanvig, Programme Director for ASEAN/Vietnam, Norwegian Center for Human Rights;
- Asbjørn Rachlew and Dr. Ivar A. Fahsing, experienced investigators from the Norwegian Police Department;
- Lilian M. Stein, Professor at the Psychology Postgraduate Department, Pontifical Catholic University of Rio Grande do Sul; and
- Mary Schollum, a criminologist and lead drafter of the Universal Guidelines on Investigative Interviewing.
Background
This workshop is part of the ICJ’s ongoing efforts to ensure the domestic implementation of international law and standards in crime investigation.
Previous ICJ workshops on the above topic have included:
Regional Workshops
National Workshops
Sep 4, 2019 | News
The announcement that the remains of Pholachi “Billy” Rakchongcharoen, a Karen rights activist, have been located, brings a sad end to years of uncertainty for his family, said the ICJ and Amnesty International today.
This development should lead to a renewed focus on identifying the perpetrator(s) of his apparent enforced disappearance and bringing them to justice.
On 3 September 2019, the Thai Ministry of Justice’s Department of Special Investigations (DSI) announced it had located bone fragments, which they had identified as likely belonging to Billy inside an oil tank submerged in water near a suspension bridge inside Kaeng Krachan National Park in Phetchaburi province.
“The DSI should redouble its efforts to identify the perpetrator(s) of Billy’s killing and bring them to justice,” said Frederick Rawski, Asia Regional Director of the ICJ. “If, based on an assessment of the evidence, it is found that Billy was the victim of enforced disappearance, then the perpetrators, including those with command responsibility, should be charged with the appropriate, serious offences in accordance with Thailand’s obligations under international law – not only with lesser crimes that do not reflect the gravity of the offense.”
Billy was last seen on 17 April 2014 in the custody of Kaeng Krachan National Park officials.
“This case highlights the serious risks activists and human rights defenders face in Thailand, including assaults, enforced disappearance and killings,” said Nicholas Bequelin, Amnesty International’s interim Regional Director of Southeast Asia and the Pacific. “It underscores the long-overdue need for the Thai government to make enforced disappearance a crime under national law. A failure to do so results in the lack of an independent, impartial and effective mechanism to investigate the cases, exacerbating the current climate of impunity.”
The DSI stated that the recovered bones contain DNA inherited from Billy’s mother, which suggests they belong to a person who was related to her. However, the DSI declined to disclose the name of any suspect(s) and requested more time to investigate the case and examine the remains.
Background
Thailand is a state party to the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Freedom from enforced disappearance is protected under both these treaties, as enforced disappearance will always constitute violations of some or more of the following rights: the right to life; freedom from torture and other cruel, inhuman, or degrading treatment or punishment; the right to liberty; and the right to recognition as a person under the law. These are in addition to violations of the rights of members of the disappeared person’s family through suffering deliberately inflicted on them through the imposition on them of uncertainty about their love one’s fate and whereabouts.
Thailand has also signed, but not yet ratified, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). The ICPPED affirms the absolute right not to be subject to enforced disappearance and places an obligation on states to investigate acts of enforced disappearance, to make it a criminal offence punishable by appropriate penalties that take into account its “extreme seriousness” and to take necessary measures to bring those responsible to justice.
The Government has stated it will not ratify the Convention until its provisions are incorporated in domestic law. However, efforts to pass the Draft Prevention and Suppression of Torture and Enforced Disappearance Act (draft Act) stalled after it was dropped by the National Legislative Assembly (NLA) prior to the 2019 national election. The draft Act is currently pending the consideration of the President of the National Assembly. Under international law of treaties, as signatory to the ICPPED, still is bound to desist from any acts which would defeat its object and purpose.
Thailand has a binding obligation under international law to conduct prompt, effective and thorough, independent and impartial, and transparent investigations into all suspected cases of unlawful death and enforced disappearance.
According to the ICPPED and the revised Minnesota Protocol (2016), which contains the international standards on the conduct of investigations into unlawful death and enforced disappearance – and which Thailand launched in May 2017 – records that investigations “must seek to identify not only direct perpetrators but also all others who were responsible for the death, including, for example, officials in the chain of command who were complicit in the death.” (para 26)
Download
Thailand-Discovery of Billy remains-news-webstory-2019-THA (full story in PDF)
Further reading
Thailand: special investigation into apparent enforced disappearance of “Billy” welcome, but much more is needed
Thailand: ICJ submits recommendations on draft law on torture and enforced disappearance amendments
Justice for Billy: Time for Thailand to Account for Activist’s Disappearance
Contact
For ICJ: Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Sep 2, 2019 | News
On 30 August 2019, on the occasion of the International Day of the Disappeared, the ICJ co-hosted an art exhibition, a closed-door round table discussion and a public forum titled “Enforced Disappearance and the Absence of a Law” to commemorate individuals who were subject to apparent enforced disappearance and whose fates remains unknown.
The closed-door round table discussion provided an opportunity for victims’ voices to be heard on challenges faced in gaining access to justice and redress. Relatives spoke about the challenges they face, mostly about the poor progress of investigations into the allegations of enforced disappearance against their relatives.
Sanhawan Srisod, the ICJ’s Legal Adviser, during the closed-door round table discussion, gave a briefing about the latest developments on the Draft Prevention and Suppression of Torture and Enforced Disappearance Act. The legislation had been dropped by the National Legislative Assembly (NLA) prior to the 2019 national elections, but is currently before the President of the National Assembly, pending his consideration to bring it before the House of Representative.
The public forum focused on the development and progress of the investigations into enforced disappearances and evaluated the progress in developing legislation in Thailand to address this critical issue.
During the public forum, Sanhawan Srisod highlighted that the Draft Act would, if adopted, fail to bring the law into full compliance with Thailand’s international human rights obligations. The key concerns include:
- Incomplete definitions of the crimes of enforced disappearance;
- The continuous nature of the crime of enforced disappearance that was not recognized in the Draft Act;
- Inadequacy of provisions on the command responsibility;
- Possibility that the military court may have power to try and adjudicate enforced disappearance cases; and
- Insufficient safeguards against enforced disappearances.
Background
Thailand has signed but has yet to ratify the International Convention for the Protection of All Persons from Enforced Disappearance.
According to their 2018 annual report, the UN Working Group on Enforced or Involuntary Disappearances has recorded 86 outstanding cases of alleged enforced disappearance in Thailand.
The Thai government, through the recently set up Committee Managing Complaints for Torture and Enforced Disappearance Cases, says it is currently conducting investigations in connection with this list.
Closed-door round table discussion session included the following speakers: Ms. Phinnapha Phrueksaphan, wife of Mr. Porlajee Billy Rakchongcharoen; Ms. Angkhana Neelapaijit, wife of Mr. Somchai Neelapaijit; Ms. Pranee Danwattananusorn, wife of Mr. Surachai Danwattananusorn; Mr. Adisorn Pho-Arn, son of Mr. Thanong Pho-Arn; Ms. Kanya Theerawut, mother of Mr. Siam Theerawut; Ms. Suphab Kamlae, wife of Mr. Den Kamlae; Mr. Prasert Laosophapan, brother of Mr. Kamon Laosophapan; Ms. Shui-Meng Ng, wife of Mr. Sombath Somphone from Lao PDR; Mr. Truong Son Nguyen, Regional Campaigner, Amnesty International Vietnam; Representatives, indigenous Lahu Community, Chiang Mai province; and Ms. Sanhawan Srisod, Legal Adviser, International Commission of Jurists
Public forum session included the following speakers: Ms. Shui-Meng Ng, representative of Asian Federation Against Involuntary Disappearances; Ms. Angkhana Neelapaijit, wife of Mr. Somchai Neelapaijit; Ms. Phinnapha Phrueksaphan, wife of Mr. Porlajee Billy Rakchongcharoen; Mr. Angsukate Wisutwattanasak, Director of Security Cases Department 1, Department of Special Investigation (DSI); Ms. Nongporn Roongpetchwong, Human Rights Expert, Rights and Liberties Protection Department, Ministry of Justice; and Ms. Sanhawan Srisod, Legal Adviser, International Commission of Jurists. The opening session included remarks from Mr. Giuseppe Busini, Deputy Head of Mission of the Delegation of the European Union to Thailand, and Mr. Surapong Kongchantuk, President of the Cross-Cultural Foundation. The closing session included remarks from Mr. Badar Farrukh, Human Rights Officer, OHCHR Regional Representative for South East Asia.
See Also:
Summary of the ICJ analysis of the Draft Act (PDF)
Thailand: ICJ submits recommendations on draft law on torture and enforced disappearance amendments
Jul 21, 2019 | News
Today, the ICJ hosted a discussion on Thailand’s legal frameworks on corporate accountability for outbound investments in Chiang Mai, Thailand. The forum was co-organized with Earth Rights International.
Lawyers, members of civil society organizations and academics from Cambodia, Laos, Myanmar, and Thailand attended the discussion.
Participants discussed:
- corporate civil, criminal and administrative liability and in particular, the applicable laws governing the prosecution and adjudication of human rights abuses committed by Thai corporations and gaps in Thailand’s legal frameworks. The meeting also looked into recommendations to strengthen Thailand’s domestic laws to increase access to justice for victims of human rights abuses committed by Thai corporations in the context of their business activities abroad, particularly on issues such as: limited liability of shareholders and the “corporate veil” in relation to the responsibilities of Thai corporations, the complexity of laws governing joint ventures, and challenges in bringing state-owned enterprises to justice;
- jurisdiction of Thai courts in civil, criminal and administrative cases where de facto and de jure foreign subsidiaries of a Thai corporation were involved in wrongful acts or omissions abroad, and problems posed by statutes of limitation;
- tools for preventing human rights abuses by corporations such as Human Rights Due Diligence (HRDD), Transboundary environmental impact assessments (EIA), Corporate Social Responsibility (CSR) measures, and the Duty of Care principle under tort law; and
- the role of other related actors to prevent and mitigate human rights risks, including the National Human Rights Commission of Thailand (NHRCT), National Contact Points (NCPs), financial institutions and securities institutions, and provided recommendations to strengthen mandates of such organizations which would allow them to provide better protection for individuals and communities who may be affected by outbound investments.
This discussion will provide the foundation for further work and analysis by the ICJ regarding Thailand’s legal frameworks on corporate accountability for outbound investments. It will also provide the basis for ICJ strategic advocacy at the national level.
