Obstacles to prisoner complaints in Hong Kong, Thailand and Malaysia

Audrey Wolffs, Researcher, Asian Legal Resource Centre

The right to an effective remedy under article 2 of the International Covenant on Civil and Political Rights (ICCPR) applies to all persons, irrespective of whether they are at liberty or in jail. However, for prisoners to exercise this right requires that special channels be made available to them by the institutions responsible for their detention. Although most countries in Asia have created avenues for prisoner complaints, in practice there are many obstacles facing inmates seeking to complain. To illustrate, this paper compares procedures in Hong Kong, Thailand and Malaysia. Each is examined first in terms of its compliance with international standards, and secondly in terms of what happens when a prisoner wants to complain.

Compliance with international standards

The international treaties most relevant to rights of prisoners are the ICCPR and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention). The Universal Declaration of Human Rights (UDHR) sets certain general standards. The Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles) and the Basic Principles for the Treatment of Prisoners (Basic Principles) establish guidelines for the management of prisoners.

Hong Kong

Hong Kong is bound both to the Torture Convention and ICCPR. In general, it complies with these laws to the minimum extent necessary, and prisoners in Hong Kong suffer from a number of serious difficulties. One problem in recent years has been overcrowding. Where two prisoners are forced to sleep in a cell built for one, there is unnecessary tension that can threaten personal security. Another problem is that the Correctional Services Department strictly limits prisoner communication with the outside world. Under Prison Rule 48, only two visits are permitted each month, with no more than three visitors at a time, not exceeding 30 minutes. Although in practice two further visits may be permitted, such limited contact with the outside certainly does not contribute to prisoner rehabilitation. Visitors are also required to wait lengthy periods before getting access, and are never sure if they will be allowed in, because they do not know how many visitors the prisoner has already received. Additionally, prisoners have no right to use telephones. They may request permission, but must give a legitimate reason. Prison officers have the authority to decide whether or not the reason is ‘legitimate’. Therefore, the prisoner is dependent on the officers’ goodwill. Foreign prisoners, who rarely – if ever – receive visitors, are particularly affected by this unreasonable restriction on contact with family and loved ones.

Thailand

Thailand has ratified the ICCPR but not the Torture Convention. The ICCPR also prohibits torture under article 7, however, prisons in Thailand do not comply with this provision, or with the guidelines in the UDHR and other documents. In fact, torture is a part of daily life in Thai prisons.[1] Inmates are abused both by prison guards and other inmates.[2] They are routinely beaten and kicked for alleged violations of petty rules. For instance, if a prison officer passes a prisoner, the prisoner has to bow his head. If he does not, he will be hit with a wooden baton. After that, he has to thank the officer.[3] Due to overcrowding and shortages of prison staff – the prisoner to officer ratio is currently as low as 25 to one [4] – some prisoners are employed to discipline other inmates, in violation of rule 28.1 of the Standard Minimum Rules. These trusties are entitled to privileges denied other inmates. They have the power to search prisoners and their belongings in the absence of a guard, and are allowed to carry sticks and beat other inmates, thereby creating tension in the yards.[5]

Restraints and solitary confinement are routinely used as punishment in Thailand’s prisons. Prisoners accused of quarreling or shouting are forced to wear leg chains weighing more than 20 kilograms, in violation of rule 33 of the Standard Minimum Rules, which stipulates that instruments of restraint shall not be used for punishment. This shackling in heavy leg irons is imposed on all death row prisoners in Bang Kwang Prison, although it is not permitted under domestic law.[6] Besides shackling, solitary confinement is frequently imposed. Before being confined, the prisoner is forced to sign a paper stating that he accepts the punishment. He is then put into a dark room for three months, although the duration is typically extended beyond this time, and most prisoners finish the punishment with some type of skin disease.[7]

The general conditions in Thai prisons also are of such a low standard that it is hard to see how the authorities could argue that they are treating prisoners with humanity, as required by article 10 of the ICCPR. The food and water is of such low quality that it clearly violates rule 20 of the Standard Minimum Rules, stipulating that adequate food of nutritional value and drinking water be provided. To survive, prisoners have family or friends bring them food; perhaps around only 30 per cent actually eat the prison rations.[8] Prisoners who can get money but not help from outside pay officers to buy things for them; the officers keep 20 per cent of the money for themselves.[9] Prisoners can also lease or buy space. In one prison, for instance, ordinarily around 25 prisoners are crammed into dormitories of four by six metres.[10] But as a prisoner explained, “We lease a dormitory with ten persons that normally accommodates about 24. Four times a year we go to a particular officer and give him an envellope with the money.”[11] Inmates can also buy medicines from prison medical staff at highly inflated prices. As medical care is negligible – the Central Prison Hospital receives less than US per patient per year[12] – many prisoners without means die from curable diseases.

Malaysia

Not only has Malaysia ratified neither the ICCPR nor the Torture Convention, it also fails to comply with international guidelines, and has domestic laws that contradict global human rights standards. It divides prisoners between those detained under the Internal Security Act (ISA) and those who are not. ISA prisoners can be detained for two years without trial, and this period may be extended. They are also subject to different rules while in detention, including denial of access to a lawyer in the first 60 days of detention. To date the Human Rights Commission of Malaysia (Suhakam) has concentrated its efforts on conditions for these prisoners, however evidence suggests that all prisoners in Malaysian jails face serious human rights violations, such as overcrowding, malnutrition and a lack of medical care. Unfortunately, as Suhakam is the only independent body permitted access to prisons in Malaysia – and, as discussed below, its activities are tightly restricted – reliable and detailed reports on conditions are difficult to obtain.

What happens when a prisoner wants to complain?

Hong Kong

On paper, Hong Kong has many channels for prisoner complaints, including the Ombudsman, Complaints Investigation Unit, officers on duty, and Justices of the Peace (JPs). The last is the main avenue for complaints, and JPs have a special mandate to monitor prison conditions. The Prison Rules and JP Ordinance permit JPs to talk privately with prisoners, make surprise visits, and investigate by themselves. However, JPs are generally unfamiliar with prisons, and fail to exercise their authority. On average, official JPs (holders of public office) visit prisons only three times per year, while non-official JPs visit less than twice per year. These visits are also not likely to be to the same prisons, and therefore they fail to monitor implementation of recommendations made with regards to prisoner complaints, and fail to deepen their knowledge about conditions in general and individual cases in particular.

Prison officials in Hong Kong also have ample techniques to ensure that inmates are unable to lodge complaints. They sometimes conduct mandatory drug testing when a JP visits.[13] Alternatively, they may simply lock a prisoner away during that time.[14]Prisoners also fear retaliation after making a complaint: “Afterwards they give you a very hard time”, remarked one.[15] The Prison Rules are sufficiently ambiguous that officers can punish inmates for unspecified violations. Under Prison Rule 61.p, “Every prisoner shall be guilty of an offence against prison discipline if he… In any way offends good order and discipline.” This nebulous regulation allows for punishments (under Prison Rule 63) that include separate confinement, forfeiture of privileges, deprivation of earnings or transfer to another facility, including from a lower security prison to a higher security prison.[16] Prison officers can also readily crack down on activities that are technically prohibited but ordinarily tolerated, such as gambling or selling of meals.[17]

Under any circumstances, the chances that complaints will be substantiated are virtually none. Once a JP has recorded a complaint, it is taken up by the Complaints Investigation Unit, which is an internal non-independent channel. Most complaints cannot be proven because of a ‘lack of evidence’. Naturally, prison officers protect each other, and prisoners are afraid to come forward in support of other prisoners for the reasons indicated above.

Thailand

For prisoners in Thailand, the only mechanism available to complain through is the newly established National Human Rights Commission (NHRC). The NHRC is empowered to receive complaints from prisoners and make recommendations to the government. However, commissioners do not routinely visit prisons and talk to inmates. The government also is not obliged to follow the recommendations, and has also recently attacked the NHRC for implied criticism of a “shoot to kill” policy regarding alleged drug dealers, threatening at least one of its members with impeachment.[18] Finally, even if the NHRC had the resources to monitor prisons around the country – which it does not – as it has no real authority to enforce its findings it is hard to see how inmates in Thailand have any avenue for effective complaints.

Apart from the practical difficulties of even getting a complaint to the ineffective NHRC, prisoners are certain to face retaliation from prison officers if they try to complain. Guards have many methods at their disposal to silence their charges, some of which were described above. In addition, complaints may simply lead to the imposition of stricter regulations, rather than improved conditions.

Malaysia

Like Thailand, in Malaysia the human rights commission, Suhakam, is the sole mechanism available to prisoners seeking to make a complaint, and like Thailand, massive political pressure renders it all but useless. Although commissioners are empowered to conduct investigations and make recommendations, the state tightly controls them at every step. Commissioners may be denied access to prisoners.[19] They are not permitted to talk in private, in violation of principle 29 of the Body of Principles.[20] In addition, recommendations made by Suhakam are not taken seriously, and not even discussed by the Parliament, to which they are submitted annually.[21] The government also controls commissioners by limiting appointments to two years, and dismissing outspoken commissioners at will. Last year three were dismissed, although they had simply performed their duties according to law. The new appointees were ex-civil servants with little or no background in human rights.[22] In practical terms then, there exists no avenue for complaints by prisoners in Malaysia, be they detained under the ISA or otherwise.

Conclusion

Prisoners, like other persons, have a right to an effective remedy for violations of their human rights. Hong Kong, Thailand and Malaysia all have mechanisms on paper to monitor prisons and permit complaints. However, none of these are effective, and in Thailand and Malaysia are actively obstructed by political interests.

In Hong Kong, the possibility for an effective remedy in keeping with article 2 of the ICCPR exists in principle, but not in practice. Of the three mechanisms reviewed, it would be the easiest to reform in the short term: there is no reason that there should be political opposition to improvements in the way JPs monitor prisons. For instance, a small number of JPs with relevant backgrounds could be selected to investigate and act upon complaints from prisons exclusively. Improvements to the way that the JPs are operating would involve minimal, if any, extra expense.

The population of Thailand and international community alike are aware of the subhuman conditions in jails there, but the government has faced no pressure to improve them. The massive systemic problems in Thai jails will take considerable effort to resolve, and the simple writing into law of the NHRC in no way offers an effective remedy in accordance with article 2. Clearly, the government has no interest in ensuring the rights of inmates are protected. International efforts at getting it to reform also have been limited and ineffectual. The initiative for reform must come from the people of Thailand, however to date most do not seem to sympathize with the prisoners. Without a growing interest in the welfare of these persons among the general public, there is not likely to be progress on this issue.

Whereas prisoners in Thailand are at least on paper afforded some protections, those in Malaysia have virtually none. Malaysia has ratified neither of the international treaties governing treatment of prisoners, and the ISA is contrary to international standards. Suhakam also cannot operate independently, and like the NHRC in Thailand does not amount to an avenue for an effective remedy. To date, campaigns to outlaw the ISA and undertake other related reforms in Malaysia have been unsuccessful, and the government has used the police force and judiciary like arms of the executive, to enforce arbitrary policies and intimidate opponents, rather than see them operate according to rule of law principles.

The manner in which Hong Kong, Thailand and Malaysia alike manage prisoner complaints is informative. Whereas at first glance each is to a varying degree concerned to ensure that inmates’ human rights are protected, in fact in none of the three countries does an effective remedy for rights violations exist for prisoners. That this is the case throws into doubt the true intentions of the said governments: each, and particularly the latter two, appears more concerned with window-dressing to satisfy rudimentary examination by the international community, rather than genuine protection of human rights. The standard set by article 2 of the ICCPR is not simply whether or not a means for remedies exists, but whether or not it is effective: regrettably, by this standard Hong Kong, Thailand and Malaysia have all failed.

End Notes

1. Human Rights Watch, ‘Prisons’, [http://www.hrw.org/wr2k2/prisons.html] (17 December 2002). [Back to content]
2. Amnesty International, ‘Widespread abuses in the administration of justice – 11 June 2002’, [http://www.web.amnesty.org/aidoc/aidoc_pdf.nsf/index/ASA390032002ENGLISH/$File/ASA3900302.pdf] (27 December 2002). [Back to content]
3. Prisoner interview by author. [Back to content]
4. Department of Corrections, ‘GUTS Baton: New Weapon for Thai Correctional Staff’, [http://www.correct.go.th/news/new-eng5.htm] (3 July 2003). [Back to content]
5. Prisoner letter. [Back to content]
6. Amnesty International, ‘Widespread abuses’. [Back to content]
7. Human Rights Internet, ‘Thailand’, [http://www.hri.ca/fortherecord1999/documentation/commission/e-cn4-1999-61e.htm] (28 December 2002). [Back to content]
8. Prisoner interview by author. [Back to content]
9. Prisoner interview by author. [Back to content]
10. Prisoner interview by author. [Back to content]
11. Prisoner interview by author. [Back to content]
12. Amnesty International, ‘Widespread abuses’. [Back to content]
13. Hong Kong Human Rights Monitor, ‘Recommendations: Reforming the Justice of the Peace system – 16 April 2000’, [http://www.hkhrm.org.hk/english/reports/2000jpreform.html] (1 February 2003). [Back to content]
14. Prisoner interview by author. [Back to content]
15. Prisoner interview by author. [Back to content]
16. Prisoner interview by author. [Back to content]
17. Prisoner interview by author. [Back to content]
18. See further, Nick Cheesman, ‘Murder as public policy in Thailand’, article 2, vol. 2, no. 3, June 2003, pp. 36–7. [Back to content]
19. Aliran Executive Committee, ‘An Affront to Parliament’, Aliran Monthly, vol. 21, no. 3, 27 April 2001. [Back to content]
20. Human Rights Commission of Malaysia–SUHAKAM–Annual report 2001. [Back to content]
21. On 19 June 2002, Parliament rejected two motions to debate human rights issues arising from Suhakam’s Annual Report 2001, submitted to Parliament. Aliran, ‘We will be vigilant, NGOs end 100 days of disengagement with Suhakam – 2 August 2002’, [www.aliran.com/monthly/2002/8a.html] (17 March 2003). [Back to content]
22. Aliran, ‘No engagement with Suhakam for 100 days’, [http://www.aliran.com/monthly/2002/4j.html] (20 March 2003). [Back to content]