Technical Note on the National Human Rights Commission of Thailand in the draft 2015 constitution

Office of the United Nations High Commissioner for Human Rights Regional
Office for South-East Asia

Technical Note on the National Human Rights Commission of Thailand
in the draft 2015 constitution

This Technical Note contributes to the on-going constitution drafting
process in Thailand, specifically with regard to the sections related to
the National Human Rights Commission of Thailand (NHRCT). The latest draft
constitution proposes to merge the NHRCT with the Office of the Ombudsman.
In response, the Technical Note first summarizes the significance of the
work of National Human Rights Institutions (NHRIs), as recognized at the
international level. The Note then argues against the proposed merger and
urges for compliance of the selection process of the commissioners with the
Paris Principles. The Note concludes with recommendations to the
Constitution Drafting Committee, the National Reform Council, the Cabinet
and the National Council for Peace and Order.

I. Roles and Significance of National Human Rights Institutions

NHRIs, are independent institutions entrenched in the Constitution and/or
established by law to promote and protect all human rights at national
level.

In 1993, the UN General Assembly adopted a set of principles relating to
the status of NHRIs (known as the Paris Principles). The Paris Principles
serve as the minimum standard that NHRIs are required to meet. There are
six key criteria: (1) clearly defined and broad mandates for the promotion
and protection of human rights, (2) autonomy from the government, (3)
independence guaranteed by legislation or the constitution, (4) pluralism
(including membership that includes representatives from civil society),
(5) adequate resources and (6) powers of investigation (this is not a
requirement and is optional). In the same year, at the World Conference on
Human Rights in Vienna, NHRIs that comply with the Paris Principles were
recognized as key actors in the promotion and protection of human rights
and the Conference called for the establishment and enhancement of such
NHRIs.

The International Coordinating Committee on National Institutions for the
Promotion and Protection of Human Rights (ICC) was also established in
1993. The mandate of the ICC includes bringing the legal framework and
operation of NHRIs in line with the Paris Principles, encouraging
cooperation between NHRIs and the international human rights system and
promoting information sharing among NHRIs. The ICC Sub-committee on
accreditation reviews NHRIs’ founding laws and legislative background as
well as their operation in practice to assess their compliance with the
Paris Principles with a view to accrediting them at the international level
with the following categories:

“A” status: NHRIs that comply with the Paris Principles. They are ICC
members They are also able to participate in, take the floor and submit
documentation to the UN Human Rights Council, including during the UPR.

“B” status: NHRIs that partially comply with the Paris Principles. They
are ICC observers They do not get access to, take the floor at or submit
documentation to the UN Human Rights Council although they are allowed,
as anyone is, to submit stakeholders’ reports for Universal Periodic
Review.

“C”: is no status . These are institutions that have been reviewed and
have been assessed as nott in compliance with the Paris Principles.

The National Human Rights Commission of Thailand was first accredited “A”
status in 2004. However, the ICC has been raising a number of concerns
about the NHRCT’s structure and functions, including the selection process
since it was modified under the 2007 Constitution. Since such concerns
remained unaddressed, the ICC recommended in October 2014 that the NHRCT be
downgraded to “B” status after a one-year grace period during which the
NHRCT can submit supporting documents to show that concerns raised by the
ICC have been addressed.

II. Merger of the NHRCT and the Ombudsman risks weakening the NHRI in
Thailand

In January 2015, as part of the on-going drafting process of a new
constitution of Thailand, the Constitution Drafting Committee proposed to
merge the NHRCT with the Office of the Ombudsman. The draft provided to
OHCHR by the Constitution Drafting Committee provides that the “Human
Rights Ombudsmen” will consist of 11 individuals who have “apparent
integrity and knowledge and experience in the protection of rights and
liberties of the people, the administration of State’s affairs or
activities of common interests of the public”. Given the challenges faced
by the current NHRCT and the differences in mandates and functions of an
NHRI and an Ombudsman Office, the proposed merger raises concerns that it
will result in further weakening of the NHRI in Thailand.

Challenges faced by the current NHRCT
The current NHRCT has been criticized for not effectively discharging its
functions. In the November 2008 report, the ICC raised concerns that the
NHRCT’s recommendations to the relevant authorities had not been
implemented and that such Commissions need to follow-up on recommendations
in their reports and publicize how the government is implementing its
recommendations. More recently, the ICC has strongly criticized the NHRCT
for not addressing human rights violations in a timely manner. Clarifying
the appropriate role of such bodies, the ICC questioned the NHRCT’s delays
in investigating and issuing reports on the political violence in 2010 and
2013 and stressed that “[i]n fulfilling its protection mandate, a National
Institution must not only monitor, investigate and report on the human
rights situation in the country, it should also undertake rigorous and
systematic follow up activities to promote and advocate for … the
protection of those whose rights were found to have been violated.” While
acknowledging the difficult environment in which the NHRCT operates, the
ICC raised strong concerns that the NHRCT was yet to issue a report on the
political violence in 2013.

The ICC has also noted shortcomings in the structure of the current NHRCT
that might have led to its operative ineffectiveness. For example, the ICC
noted that the NHRCT Secretariat’s permanent staff members are seconded
from various ministries. Currently, the most senior staff of the NHRCT
Secretariat can be filled only by civil servants, closing its doors to
external candidates. This provision clearly contravenes the ICC’s General
Observation that “[w]here a National Institution’s staff members are
seconded from the public service, and in particular where this includes
those at the highest level in the National Institution, it brings into
question the capacity of the National Institution to function
independently.” The ICC further stressed that the recruitment of staff
through an open, transparent and merit-based selection process is critical
for the effectiveness of the NHRCT. Similarly, the ICC noted that the NHRCT
did not have a regional or local office outside of Bangkok, and recommended
a permanent presence in the regions of Thailand to enhance its
accessibility. Establishing presences in the regions is encouraged under
the Paris Principles. The ICC notes that ensuring accessibility to the
NHRCT is important for vulnerable sections of society, who are often in
geographically remote areas. It is also critical that these regional
presences receive adequate funding to function effectively.

Different mandates, legal basis and working methods between the NHRCT and
the Ombudsman
Given the challenges already faced by the NHRCT, there are concerns that
the merging of the NHRCT and the Ombudsman’s Office to form the “Human
Rights Ombudsman” could further weaken the effectiveness of the NHRI since
the functions and working methodologies of the two institutions are
different. Under the 2007 Constitution, the office of the Ombudsman and the
NHRCT had different functions and different legal bases for their
operations. The primary task of the Ombudsman is to investigate
performances of or omissions to perform duties according to law by
government officials and agencies. The 2007 Constitution also provides that
the primary task of the NHRCT is “to examine and report the commission or
omission of acts which violate human rights or which do not comply with
obligations under international treaties to which Thailand is a party, and
propose appropriate remedial measures to persons or agencies committing or
omitting such acts for taking action.”

While the constitution and relevant administrative laws are the only bases
of the Ombudsman’s work, the foundational guidelines for the NHRCT’s work
are derived from additional frameworks beyond the constitution, including
international human rights standards and other international declarations
and principles. The Paris Principles provide that an NHRI should have as
broad a mandate as possible, including promoting and ensuring the
harmonization of national practice with international human rights
instruments. Similarly, while the Ombudsman focuses on the conduct of
government officials, the NHRCT’s mandate is and should be broader. The ICC
specifically provides that an NHRI’s mandate should “extent to the acts and
omissions of both the public and private sectors.”

The NHRCT and the Ombudsman also have different working methods. Notably,
under the 2007 Constitution, the office of the Ombudsman is required to
investigate “complaints”. Contrarily, the NHRCT must “examine and report
the commission or omission of acts which violate human rights…” without any
explicit requirement of a complaint to be filed, indicating its power to
take sua motu action. In this regard, the NHRCT also possesses the power
“to demand relevant documents or evidence from any person or summon any
person to give statements of fact” under the 2007 Constitution. This power
which had not been given to the Ombudsman under the 2007 Constitution is
notably absent in relation to the proposed “Human Rights Ombudsman.” The
Paris Principles require NHRIs to “maintain consultation with the other
bodies, whether jurisdictional or otherwise, responsible for the promotion
and protection of human rights.” The Principles also recognize the roles of
non-governmental organizations and encourages developing relations with
them.

Concerns with the current draft constitution to merge the NHRCT and the
Ombudsman
While section [2/5/4]2 of the current draft constitution contains tasks of
both the two institutions summarized above, it does not clarify how the
“Human Rights Ombudsmen” will discharge these primary tasks fairly. It
provides that “[t]he Human Rights Ombudsmen shall allocate the duties and
responsibilities…among themselves clearly and distinctively,” but it does
not provide how they are to do so, especially given the very different
legal bases and working methods of NHRIs and the classical Ombudsman. The
absence of the power to subpoena also raises concerns in that it would
further limit the body’s capacity to conduct effective fact-finding. In
short, given the challenges that the NHRCT currently faces and its
structural issues on one hand and substantive differences between the
mandates and working methods of the NHRCT and the office of the Ombudsman
on the other hand, merging both bodies risks exacerbating already existing
problems and further dilute the functions of the NHRCT.

At the global level, the ICC has accredited 106 NHRIs over recent decades.
Among them, the model of an independent commission, like the NHRCT, is the
most common. In the ASEAN sub-region, the formula of having the NHRI