Open the reasons for the ICC-NHRI proposed to downgrade the Thai NHRCT

โดย

31 December, 2014

145

Extract from http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/SCA%20OCTOBER%202014%20FINAL%20REPORT%20-%20ENGLISH.pdf page 32-35

3.10 Thailand: National Human Rights Commission of Thailand (NHRCT) Recommendation:

The SCA recommends that the NHRCT be downgraded to B status. In accordance with Article 18.1 of the ICC statute, a recommendation to downgrade does not take effect for a period of one year. This allows an opportunity for the NHRCT to provide the documentary evidence necessary to establish its continued conformity with the Paris Principles. The SCA notes that the NHRCT maintains an A status for the one-year period.

The SCA notes:

1. Selection and appointment

The SCA has previously expressed serious concerns about the selection process for Commissioners. In particular, the SCA noted that:

There is no requirement to advertise vacancies on the NHRCT;
The selection committee established by Section 8(1) of the enabling law is composed of officials from a very small number of public institutions, with no clear representation, or a requirement for consultation with key stakeholder groups or civil society;
There is no provision for broad consultation and / or participation, in the application, screening and selection process;
There do not appear to be clear and detailed criteria upon which to assess the merit of eligible applicants.

In its response, the NHRCT had acknowledged concerns about the lack of participation in the selection process and indicated that it is advocating that the General Meeting of the Supreme Court of Justice and the General Meeting of the Arbitrators of the Supreme Administrative Court select two members from civil society. The SCA is of the view that this proposal alone is not sufficient to address the SCA’s concerns and does not establish a transparent and participatory selection process that promotes merit-based selection.

The SCA encourages the NHRCT to continue to advocate for the formalization of a comprehensive selection process in relevant laws, regulations or binding administrative guidelines, and for its subsequent application in practice. Such changes should address the issues raised above.

The SCA refers to Paris Principle B.1 and to its General Observation 1.8 on ‘Selection and appointment of the decision-making body of NHRIs’.

2. Functional immunity and independence

The SCA had previously expressed concerns about whether members of the NHRCT are immune from prosecution for actions taken in good faith in the course of their official duties.

The NHRCT provided information to suggest that provisions in a number of laws may provide immunity from prosecution. These laws included the Public Law, the Penal Code, Section 59, Paragraph 1, and Section 329; the NHRCT Act, 1999, Section 33, the Civil Code, Section 420; the Act on Liability for Wrongful Act of Official, B.E. 2539 (1996), Section 5.

The SCA is concerned that the NHRCT is forced to rely on a variety of provisions in various laws to ensure its functional immunity and independence.

The SCA has previously expressed concerns that external parties may seek to influence the independent operation of a NHRI by initiating, or by threatening to initiate legal proceedings against a member. For this reason, and given the unique role of NHRIs, the SCA is of the view that NHRI legislation should include a clear and unequivocal provision to protect members from legal liability for acts undertaken in good faith in their official capacity. Such a provision promotes:

Security of tenure;
The NHRIs ability to engage in critical analysis and commentary on human rights issues free from interference;
The independence of the senior leadership; and
public confidence in national human rights institutions.

The SCA encourages the NHRCT to advocate for the inclusion of provisions in its founding legislation that clearly establish functional immunity by protecting members from legal liability for actions undertaken in good faith in the course of their official duties.

The SCA refers to Paris Principal B.3 and to its General Observation 2.3 on ‘Guarantee of functional immunity’.

3. Addressing human rights issues in a timely manner

The SCA has previously expressed concerns that the NHRCT has not been addressing serious human rights violations in a timely manner.

In 2010, violent demonstrations and civil unrest resulted in a significant number of deaths and injuries as a result of alleged violations of human rights by In 2010, violent demonstrations and civil unrest resulted in a significant number of deaths and injuries as a result of alleged violations of human rights by law enforcement agencies. Despite the serious nature of these violations, the NHRCT took three years to complete and publish a report into the alleged human rights violations that occurred in 2010.

In late 2013, further demonstrations also resulted in a significant number of deaths and injuries. The NHRCT provided the SCA with a summary of actions taken in response to the ongoing unrest. While these show that the NHRCT is operating in extremely difficult circumstances and has taken some steps to improve its monitoring operations, the SCA notes that the NHRCT is yet to complete and publish a report into alleged serious human rights violations that occurred in 2013.

The SCA notes that in the situation of a coup d’état or a state of emergency, NHRIs are expected to conduct themselves with a heightened level of vigilance and independence, and to promote and ensure respect for human rights, democratic principles and the strengthening of the rule of law in all circumstances and without exception. Their actions may include monitoring, documenting, issuing public statements and releasing regular and detailed reports on human rights violations through the media in a timely manner. Furthermore, an NHRI should also undertake rigorous and systematic follow up activities and advocate for the consideration and implementation of its findings and recommendations in order to ensure the protection of those whose rights have been violated. These actions, in particular the release of public reports, serve to combat impunity for human rights violations.

The SCA refers to Paris Principles A.3 and C.c as well as to its General Observations 1.6. ‘Recommendations by NHRIs’, and 2.6 ‘NHRIs during the situation of a coup d’état or a state of emergency’.

4. Independence and neutrality

The SCA had previously raised concerns that staff members of the NHRCT were displaying publicly their political affiliations whilst undertaking official functions. In response, the NHRCT indicated that it had “encouraged” staff to perform their duties impartially and in a manner consistent with the NHRCT’s Code of Conduct.

The SCA is of the view that displaying one’s personal political affiliation whilst at work clearly impacts adversely on the real and perceived independence, impartiality and accessibility of an NHRI, particularly when the country is undergoing a period of political unrest. At such times, victims of human rights violations may find it difficult to approach the NHRCT if it is clear that some staff are politically affiliated with the alleged perpetrators. The SCA therefore stresses that the NHRCT has a responsibility to ‘ensure’ rather than ‘encourage’ its staff to work impartially.

The SCA notes that in the situation of a coup d’état or a state of emergency, it is expected that a National Human Rights Institution will conduct itself with a heightened level of vigilance and independence, and in strict accordance with its mandate.

The SCA refers to Paris Principles A.3 and to its General Observation 2.6 ‘NHRIs during the situation of a coup d’état or a state of emergency’.

5. Legislative process

The SCA notes that the NHRCT is actively involved in the current constitutional reforms and that it intends to re-submit a proposal to amend its enabling law. The on-going legislative process provides an opportunity for the NHRCT to advocate for full legislative compliance with the Paris Principles. The SCA encourages the NHRCT to address all issues raised above, including through amendments to the draft constitution

and its enabling law. The SCA refers to Paris Principle A.2 and to its General Observation 1.1 on ‘Establishment of NHRIs’. The NHRCT is encouraged to seek advice and assistance from the OHCHR and the Asia Pacific Forum of NHRIs.