10 Key points of Draft Bill on Anti-Torture and Enforced Disappearance (The House Legal Committee Version)

Unofficial Translation (31 July 2020) Submitted by the House Committee on Legal Affairs, Justice, and Human Rights The Bill on Prevention and Suppression of Torture Act and Enforced Disappearance Act B.E. ….. Whereas it is expedient to have a law on prevention and suppression of torture act and enforced disappearance act.

Title
Section 1: This Act is called “Prevention and Suppression of Torture Act and Enforced Disappearance Act B.E. …

Effective Date
Section 2: This Act shall come into force after the expiration of one hundred and twenty days from the date of its publication in the Royal Gazette.

Conflict of Laws
Section 3: All laws, rules, regulations, notifications, and orders in so far as they have been provided in this Act, or are contrary to or inconsistent with the provisions of this Act, shall be replaced by this Act; except the case that any law particularly safeguards the protection of right and liberty in life and body of the people greater than the stipulation in this Act, such law shall be enforced.

Terms
Section 4: In this Act;
Torture Act” means any act by any mean which cause severe pain or suffering, whether physical or mental inflicted on any person

(1) obtaining information or a confession from a person or a third person; or
(2) punishing a person for an act that person or a third person has committed or is suspected of having committed; or
(3) intimidating or coercing a person or a third person; or
(4) for any reason based on discrimination of any kind.

It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

“Cruel, inhuman or degrading Act” means any act by any mean which causes injury to the other person in body or mind or devalue human dignity of anyone that is not a torture act. It does not include injury arising only from, inherent in or incidental to lawful sanctions.

“Deprive of Liberties” includes the arrest, the custody, the detention, the abduction, the holding, the imprisonment, the confinement, the summons, or the invitation to individuals for inquiry or interrogation or any other similar act of deprivation of the liberty in body.

“Enforced Disappearance” means the detention or any other form of act, by the public officials or by persons or groups of persons acting with the authorization, support or acquiescence of public officials, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, or other similar act.

“Public official” means a person holding political position, a government official or a local officer holding a permanent position or salary, an officer or a person performing work in a state enterprise or a state agency, a local administrator and a member of a local council who is not a person holding political position, an official under the law on local administrative procedures, and shall include a member of a committee, a subcommittee, an employee of a government agency, a state enterprise or a state agency, and a person or a group of persons who exercises power or entrusted to exercise state administrative power in the conduct of a particular act under the law, whether established in the official service, a state enterprise or other state undertaking.

“Injured person” means an individual who loses his/her life or suffers physical or mental harm as a result of torture and other cruel, inhuman or degrading treatment or punishment or enforced disappearance. It shall include both de jure and de facto husband, wife, life partner, parents, descendant, and dependent.

“Committee” means the Committee for the Prevention and Suppression of Torture Act and Enforced Disappearance Act.

Minister Overseeing this Act
Section 5: The Minister of Justice shall have charge and controle for the execution of this Act and have the power to issue rules and notifications for execution of this Act.

Such rules and notifications shall come into force upon their publication in the Royal Gazette.

Chapter 1 The Committee on Prevention and Suppression of Torture Act and Enforced Disappearance Act

Composition of the Committee
Section 6: There shall a committee called “The Committee for the Prevention and Suppression of Torture Act and Enforced Disappearance Act” consists of the Minister of Justice as Chairperson and ten committees appointed by the Prime Minister as nominated by the Selection Committee:

(1) Two persons with evident knowledge and experience regarding protection of rights and liberties in life and body from torture act, cruel, inhuman or degrading act, or enforced disappearance act.

(2) Two injured persons or representatives of the injured persons of torture act, cruel, inhuman or degrading act, or enforced disappearance act.

(3) Two representatives from non-profit civil society working on protection of the rights and liberties in life and body of person from torture act, cruel, inhuman or degrading act, or enforced disappearance act.

(4) representatives of the injured persons of torture, and other cruel, inhuman or degrading treatment or punishment and enforced disappearance, selected from among themselves to two

(6) qualified persons appointed by the cabinet based on knowledge, expertise and experience having renowned works: one in evidence analysis, one in forensic medicine and one in psychology as committee members.

(4) qualified persons based on knowledge, expertise and experience having renowned works in law and forensic evidence.

Under paragraph one, the Director-General of the Department of Rights and Liberties Protection shall be a committee member and a secretary. The Director general of the Department of Rights and Liberties Protection shall appoint not more than two government officials of the Department of Rights and Liberties Protection to be assistants to the secretary.

Participation of the representatives from human rights private organizations shall be taken into consideration of selection of the committe.

Qualifications and Prohibitions of the Committee Members
Section 7: The committee members under Section 7 shall have following qualifications and not having following prohibitions:

(1) being of Thai nationality:
(2) not being bankrupt or having been dishonestly bankrupt;
(3) not being incompetent or quosi-incompetent persons;
(4) not being a person holding political position; not being a member of the local council, a local administration official, or an executive of a political party:
(5) not being suspended or discharged from the government service;
(6) not having been expelled, dismissed or removed from a state agency or a state enterprise on the ground of disciplinary action;
(7) not having been sentenced by a final judgment to imprisonment including a final judgment but suspension of the determination of punishment or awaiting for imposition of sentence; except for an offence committed through negligence, a defamation offence or a petty offence;
(8) not having been ordered by a judgement or an order of the Court that his or her assets shall vest in the state on the grounds of unusual wealth or unusual increase of assets or assets gained from committing offence under money laundering law; and
(9) not having been investigated and concluded by the National Commission of Human Rights as committing human rights violation.

Section 8: There shall be a Selection Committee. In each selection, the committee consists of:

(1) President of the House of Representatives as Chairperson:
(2) Attorney General;
(3) Representatives from private human rights organizations having juristic person status under Thai law and have a direct mandate to promote and protect human rights, without having political or profit-seeking purposes from its operation, selected from among themselves to five;
(4) One representative from all political parties represented by its members in the house of representatives, selected from among themselves to nine: four from the government coalition and five from the opposition;
(5) Representatives of media professional: newspaper, radio and television broadcasting, selected from among themselves to three;
(6) Secretary-General of the House of Representatives as Secretary:

The Selection Committee has a duty to select ten qualified persons, with their consent to be the comittee in accordance to Section 6. In selection, gender-responsive participation shall be taken into consideration in nomination to the Chairman of the House of Representatives, together with document or evidence justifying qualification and not having prohibitions under Section 7, within sixty days from the day enabling a selection. In order to propose to the Prime Minister for appointment, the committee shall resolve for nomination, with a vote of not less than two-thirds of the total number of existing members of the selection committee

Term of the Committee Members
Section 9: The committee members under Section 6 shall hold office for a term of four years but for a consecutive period of not more than two terms.

The committee members who vacate the office shall remain in office to perform duties until the newly appointed committee members take office but not more than one hundred and eighty days since vacating the office.
Vacation of Office

Section 10: In addition to the vacation of office upon the expiration of term, the committee members under Section 6 (1) (2) (3) and (4) vacates office upon:

(1) death;
(2) resignation;
(3) being disqualified or being under any of the prohibitions under Section 7, and
(4) being removed from office on the ground of misbehaviour, irresponsibility or dishonest or lack of ability, by the votes of two-thirds of the committee’s resolution.

Vacancy of the Committees
Section 11: In the case where positions of the committee members become vacant under Section 6 (1) (2) (3) and (4) before the expiration of term, there shall be an appointment to fill the vacancy within sixty days, except remaining term of the committee members is less than ninety days.

The committee members who are appointed to fill in vacancy shall have their terms equivalent to the remaining terms in such positions.
During the vacancy, the remaining committee members shall continue performing the duty.

The Committee’s Meeting
Section 12: The Committee shall hold a meeting once a month.

At a sitting of the committee, not less than one-half of the total number of existing members is required to constitute a quorum.

In absence of the chairperson, if the chairperson does not attend the meeting or unable to perform the duty, the vice chairperson shall be the president. If both chairperson and vice chairperson do not attend the meeting or unable to perform the duty, the committee members attending the meeting shall designate one committee member to be the chairperson.

In performing its duty, the chairperson or any committee member having direct or indirect conflict of interest in the issue considered by the committee, the chairperson or such committee member shall notify the committee. The committee shall take into consideration whether such committee member should be in the meeting and be able to pass a resolution in that particular issue, as regulated by the committee.

A ruling in a sitting of the committee shall be made by a majority of votes. In casting a vote, each committee member has one vote. In case of an equality of votes, the chairperson shall have an additional vote to make a final decision.

Power and Duty of the Committee
Section 13: The committee shall have following duties and powers:

(1) provide an opinion to the cabinet to reform law, rule, regulation or other measure, as necessary according to this Act;

(2) formulate policy, action plan and measures to prevent and suppress torture act, cruel, inhuman or degrading act, or enforced disappearance act; and raise awareness with the public official regarding importance of human dignity and prevention of torture act, cruel, inhuman or degrading act, or enforced disappearance act.

(3) formulate policy and measures for physical and mental rehabilitation and remedy for the injured person covering all aspects, including restitution, adequate compensation, physical and mental treatment and rehabilitation as complete as possible;

(4) regulate criteria and method in providing assistance and remedy to the injured person both financially and mentally added to long-term medical rehabilitation, subjected to approval of the Ministry of Finance;

(5) provide measure to prevent repetition of violation and preventive measure prohibiting concealment of detention and witness protection measure to a whistle-blower who provides case information regarding offences under this Act.

(6) follow-up and examine a complaint about torture act, cruel, inhuman or degrading actor enforced disappearance act: support and assist the injured person by providing advice regarding legal matter, a lawyer, a medical examination for the benefits of the case, case progress, physical and mental rehabilitation and nonrepetition of violation;

(7) monitor, facilitate and coordinate with relevant agencies to ensure prompt and fair investigation, including a request to change an inquiry official for the benefits of justice including authoritzed to request cessation of torture act under this Act and petition for a habeas corpus under the Crimnal Procedure Code:

(8) Notify the government agency or the public official or the individual to report, clarify, provide relevant information or documentary evidence concerning offences under this Act, for benefits in prevention and suppression of torture act and enforced disappearance act:

(9) conduct unannounced visits to relevant agency or detention facilities, and provide recommendations to an agency in charge, for benefits in executing this Act:

(10) monitor and follow-up on torture act, cruel, inhuman or degrading act, or enforced disappearance act in spite of absence of complaint and able to receive a complaint from an anonymous

(11) gather statistical information and produce a report and an annual report concerning torture act, cruel, inhuman or degrading acts and enforced disappearance act and present recommendation to the cabinet and the parliament including disseminate to the public;

(12) appoint the advisor, the subcommittee or the official to perform duties as designated by the committee;

(13) regulate a regulation or a notification on expenditures in duties, as approved by Ministry of Finance;

(14) regulate a regulation in executing this Act; and

(15) other operations as stipulated by law shall be power and duty of the Committee on Prevention and Suppression of Totrture Act and Enforced Disappearance Act.

Power and Duty of the Office
Section 14: The Rights and Liberties Protection Department shall perform as secretary of the committee and shall have following power and duty;
(1) proceed administrative works to support and facilitate the work of the committee, the subcommittee, the advisor or the officer appointed by the Selection Committee,
(2) study, collect and analyze data relating to the work of the committee;
(3) disseminate academic knowledge concerning torture act, cruel, inhuman or degrading act or enforced disappearance act to the public and the public official;
(4) co-ordinate with the government, state agency, private sector and the public for benefits in the committee’s execution; and
(5) proceed other operations as assigned by the committee or the subcommittee.

Section 15: In execution of this Act, the commitee, the subcommitee and the official appointed by the committee are the officials under the Criminal Code.

Duty to Protect Rights and Liberties in Life and Body
Chapter II Prevention and Suppression of Torture Act and Enforced Disappearance Act
Part 2 Suppression of Torture Act and Enforced Disappearance Act