An Open Letter from the Asian Human Rights Commission to six Special Procedures of the UN Human Rights Council
Working Group on Arbitrary Detention
Special Rapporteur on the Independence of Judges and Lawyers
Special Rapporteur on Torture
Special Rapporteur on Human Rights Defenders
Special Rapporteur on Freedom of Opinion
Special Rapporteur on Freedom of Peaceful Assembly
Office of the UN High Commissioner for Human Rights
Palais des Nations
CH-1211 Geneva, Switzerland
Dear Special Rapporteurs and Working Group Members
THAILAND: Military courts to process civilians violate international law
You will be aware that on 20 May 2014 the commander-in-chief of the Royal Thai Armed Forces, General Prayuth Chan-ocha declared martial law on the justification to prevent political violence in Bangkok. Subsequently, on 22 May 2014 he conducted a coup d’etat, forcing an elected government from office. Military personnel occupied the offices of public broadcasters, and the junta began to issue announcements instructing people to report to it or be arrested. He has since formed a government with himself as head and placed all ministries under military control. Martial law remains in effect across the entire country.
The Asian Human Rights Commission submits that no “time of public emergency which threatens the life of the nation” exists in Thailand to justify the introduction of martial law or the military coup, and therefore no grounds exist under article 4(1) of the International Covenant on Civil and Political Rights for Thailand to derogate from its obligations as a State Party. Although the country has been experiencing political unrest, this unrest is protracted, and nothing in the current circumstances justified the introduction of these measures. Furthermore, the unrest is in large part a consequence of the last military coup, in 2006.
Notwithstanding, under Announcement No. 37/2557 , of 25 May 2014, the junta made clear its intention to establish military courts to process people accused of certain categories of offences. In particular, it listed offences of lese majesty, offences concerning internal security, and any offences deemed to be contrary to the orders of junta. In Announcement No. 38/2557, it added that persons brought before military courts with cases pending against them from the ordinary criminal courts could have those cases dealt with simultaneously. Translations of both announcements are attached for your information.
Governments in Thailand, including those under military juntas, have not used military courts to process civilians since October 1976. Therefore, this announcement is a giant leap backwards for human rights in Thailand. Although so far no civilian has, to public knowledge, yet been brought before a military court, that the junta has indicated that it will use military courts is sufficient grounds for action by the international human rights community.
The law for the establishment of military courts is the Constitution of Military Courts Act B.E. 2498 . We wish to draw to your attention the salient sections of the Act, with observations on violations under the Covenant on Civil and Political Rights relevant to your mandates.
AUTHORITY & PROCESS: Under sections 4 and 5 of the Act, all matters pertaining to the courts are under the purview of the Minister for Defence. Under section 45, examination of matters in the courts is under military procedure, unless no relevant procedure exists in which case the courts may have recourse to the Criminal Procedure Code.
OBSERVATION 1. The first point to note about the instrument for establishment of military courts is that while it has a legal form, it places military courts outside the legal system. The accused persons brought to military courts are not accused criminals: they are accused of being political enemies of the state. The bases for accusations against them are primarily that they have held or expressed opinions contrary to those of the junta, have organised public gatherings, or have associated in ways that the junta deems to be contrary to the public interest. Therefore, the establishment of the courts is in violation of articles 19, 20 and 21 of the Covenant, regarding rights to freedom of opinion and expression, freedom of assembly and freedom of association.
The announcement of the junta that it will use military tribunals has as its purpose the intimidation of persons who might act or speak out against it, since to do so constitutes a political offence. It is a political offence because it is not a specific offence any law, but rather, against the junta itself, for if it were an offence under ordinary criminal law it could be left to the ordinary courts to hear.
In this regard, in its early announcements, the junta explicitly listed university academics, journalists, human rights defenders and others as wanted for questioning (see Announcement Nos. 1, 2, 3, 5, 6, 12, 13, 14, 15, 16, 18, 19, 23, 25, 29, 31, 31, 34, 35,36, 42, 43, 44/2557 ). The effect of these announcements is to put on notice both those persons called and the general public that the persons listed are latent or explicit public enemies. Some persons called have gone when called, others have refused and have been arrested; some have fled abroad. Among the second category, the junta has indicated that it does intend to bring a minister in the former government, Mr. Chaturon Chaisang, before a military court for his refusal to comply with one of these orders
EXTRAORDINARY TIMES: The Act divides the functioning of military courts into two periods: ordinary and extraordinary. A time of martial law is, under section 36, an extraordinary period, and in this period, military courts can consider all cases relating to violations of martial law or other cases as the commander-in-chief assigns to them, as in Announcement No. 37/2557. In this period, under section 61 of the Act an accused has no grounds for appeal. The determination of the military court is final.
OBSERVATION 2. The denial of avenues for appeal speaks to the political character of the military courts. The purpose of these courts is not in fact to try people for crimes. Actually, no trial is to be conducted at all. Rather, the courts constitute a form of administrative processing of political enemies. Their purpose is to rationalise the detention and imprisonment of accused persons: to ensure that paperwork exists to justify what are essentially arbitrary actions taken by the military on its own prerogative.
The denial of a right to appeal constitutes a violation of article 2(3)(a) of the Covenant, whereby the government of Thailand has undertaken “to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity”. The bringing of a civilian before a military court in the manner set out in the Act constitutes a violation of the person’s fundamental rights under the Covenant, against which the person has no means of seeking redress.
DETENTION: Under section 46 of the Act, The commander-in-chief of the armed forces can order that a person being brought before a military court be detained for a period of up to 90 days.
OBSERVATION 3. This provision constitutes a violation of article 9(1) of the Covenant, that no one “shall be subjected to arbitrary arrest or detention”, read with articles 9(2)(3)(4), that anyone arrested is to be informed of the reasons for arrest, shall be brought to a judge, shall not ordinarily be detained pending trial, and shall be entitled to challenge the reasons for detention in court. Under the arrangements for military courts, none of these provisions apply.
In this regard, we note that persons currently being released from detention in response to announcements made for them to report are being forced under to sign pledges that they will not exercise fundamental human rights to free expression or assembly, or leave country without permission of the junta (See Announcement No. 39/2557 ). The pledges reinforce the essentially arbitrary character of the process of detention, since they refer to no law and are issued under the exclusive authority of the junta.
CONFESSION: Although the Act enables defendants to have lawyers present (section 55), under section 59, if the defendant confesses to the offence or expresses no desire to attend the court, the examination can proceed without the defendant present.
OBSERVATION 4. Coupled with the period of 90-days detention, the effect of section 59 is to encourage the use of torture or other cruel, inhuman or degrading treatment or punishment to extract a confession or have the defendant acknowledge that he or she has no desire to attend court. Under the current circumstances, the formal provision of a lawyer is practically meaningless, as accused persons can be held in undisclosed locations or in military facilities that even if known are inaccessible to civilians. Therefore, the introduction of military courts under martial law opens the door wide to violation of article 7 of the Covenant, that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.
The government of Thailand is fully aware of this fact. For evidence, we need look no further than the Concluding Observations on the Initial Report of Thailand of the UN Committee Against Torture, at its meeting of 16 May 2014 (CAT/C/SR.1239), less than a week before the military coup.
The Committee expressed concern about the “absence of a definition of torture and the absence of an offence of torture” in Thailand (par. 9), “about the continued allegations of the widespread practice of torture and ill-treatment of detainees, including as a means to extract confessions, by the military, police, and prison officials” (par. 10), and “at the climate of de facto impunity for acts of torture prevalent in the State party in view of the lack of prompt and impartial investigation of allegations of torture and ill-treatment committed by law enforcement personnel… delays in investigation of cases of torture… discrepancies between the numerous allegations of torture and ill-treatment by State officers and the very low number of the complaints brought to the authorities… [and] the almost total absence of criminal sanctions against responsible officers” (par. 15).
In sum, even in ordinary times, soldiers, police and paramilitary personnel in Thailand commit torture with impunity, and specifically, in order to extract confessions. The introduction of martial law and the announcement of military courts have massively expanded the space in which military and police torturers operate, with the prospects of prosecution being nil. In fact, the logic of the Act is to encourage the use torture and other methods to not have an accused appear in a military court, since through this method the processing of political enemies will be expedited.
We further draw your attention to the Committee’s expressed concern in paragraph 12 of its observations at the use of special laws that “provide for enlarged executive powers of administrative detention without adequate judicial supervision, and weaken fundamental safeguards for persons deprived of their liberty”, including under martial law provisions, and specifically, that under these measures,
“Safeguards against torture which are provided in law and regulations are allegedly not respected in practice, and that, in particular, detainees are often denied the right to contact and be visited by family members promptly after their deprivation of liberty; and that some necessary safeguards such as the right to contact a lawyer and to be examined by an independent doctor promptly upon deprivation of liberty are not guaranteed in law or provided in practice.
“The special laws, in particular section 7 of the Martial Law and section 17 of the Emergency Decree, explicitly limit the accountability of officials enforcing the state of emergency by granting immunity from prosecution for serious human rights violation, including acts of torture, in violation of the provisions of the Convention”
The consistent experience in Thailand has been that where special laws have been used, people affected by the laws have encountered a corresponding increase in cases of arbitrary detention, torture and denial of due process rights. Nothing in the present circumstances offers reassurances that the same will not occur through the establishment of military courts under martial law.
In conclusion, although every country in the world has provisions for times of exigency, in particular in the event of war, no situation exists to justify the establishment of these courts in Thailand at this time. The country’s ongoing political unrest notwithstanding, it is beholden on the civilian authorities to deal with that unrest in accordance with ordinary procedures.
In view of the above facts, the Asian Human Rights Commission urges you through your respective mandates to raise these matters with the Government of Thailand, such that the announcement for the establishment of military courts is revoked, and all cases of alleged offences handled as criminal offences in accordance with the ordinary law.
The AHRC also asks that you call for the restoration of civilian government in Thailand as quickly as possible, and expresses its view that the period of at least one year that the junta has indicated it intends to stay in power is not only completely unacceptable and profoundly damaging from the point of view of democracy, but also will be disastrous for human rights in Thailand across the board.
Asian Human Rights Commission, Hong Kong
Office of the High Commissioner for Human Rights, Regional Office, Bangkok
Permanent Mission of Thailand to the United Nations, Geneva