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 encourage 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