Seminar on Human Rights Based Access to Justice: A Challenge to Police and Justice Reform in ASEAN
On 9 September 2019, from 9:30 am to 5:00 pm, the Institute for Justice Reform (IJR), together with eight other academic institutions and civil society organizations, jointly organized the Seminar Workshop on Human-Rights-Based Access to Justice: A Challenge to Police and Justice Reform in ASEAN at Novotel Bangkok Platinum Pratunam Hotel. Dr. Vichien Tansirikongkhon, Associate Professor of Institute for Justice Reform, led the workshop’s opening by giving his remarks to the participants from a wide range of occupational backgrounds including law enforcement officers, human rights activists, and diplomats.
Mr. Boonthan T. Verawongse, Secretary-General of the Campaign Committee for Human Rights (CCHR) and member of the Coordinating Committee for the IJR, then introduced the keynote speaker, Mr. Somchai Homlaor who is a renowned human rights defender in Thailand. His activism dated back during the period leading up to the student-led popular uprising against the military dictatorship of Field Marshal Thanom Kittikachorn on 14 October 1972. He is currently the Chairman of the Human Rights and Development Foundation (HRDF) and serves as an advisor to the Cross-Cultural Foundation and the Institute for Justice Reform. He was also the first Secretary-General of FORUM-ASIA.
Mr. Somchai Homlaor began his speech by sharing a personal anecdote. Twenty years ago, he and his friends started an initiative to invite human rights defenders across South-East Asia, especially East Timor which was going through a crucial political transition at the time, to Bangkok and provide a platform for them to discuss and exchange knowledge about their human rights situations. The Thai security sector, however, harassed and forced them to host the discussion in the outskirts of Bangkok. “I feel heavy-hearted as the history is now repeating itself as the same situation is recurring for the upcoming ASEAN People Forum,” said Mr. Somchai.
Mr. Somchai added, “On a positive side, Thai human rights defenders have made several progressive steps in advancing human rights in our country. Thailand is now a State party to many international human rights conventions including the UN Convention Against Torture or CAT. Most of our domestic laws do not overtly violate any international human rights principles, even though they may contain legal provisions that are slightly different from international legal texts. However, our government has been refraining from committing to two key international instruments, that is, the Rome Statute and the International Convention against Enforced Disappearance. The Thai government has signed the latter and the Cabinet approved its ratification; nevertheless, no further action has been taken to ratify it.”
The Thai government’s unwillingness to commit to these international human rights principles results in several mass violations that were committed or continue to be committed in the country. Mr. Somchai gave some examples of such violations as follows:
(1.) War on Drugs: During the War on Drugs in 2003, there was a saying “Drug offenders only have two options in their lives – they can either go to jail or to the temple (as a dead body to be cremated).” Only within three months, at least 2,500 died due to extrajudicial killings committed by state officers. Nevertheless, not a single perpetrator has been prosecuted.
(2.) The armed violence in the Southern Border Provinces (SBPs): After the 2004 gun robbery in Narathiwat province, the Thai military arrested some individuals suspected of being involved in the incident. A demonstration ensued in front of the Tak Bai district police station and the authorities cracked down on the protest, killing six protesters. Later, more than a thousand protesters were taken to an army camp in Pattani province by military trucks. 78 of them died during transportation due to suffocation. Shockingly, not a single government official involved in the crackdown faced any disciplinary or legal actions.
(3.) Enforced disappearance: Many human rights defenders (HRDs) in Thailand have been subjected to enforced disappearance because of their human rights work. This includes the case of Mr. Somchai Neelapaijit, a human rights lawyer who filed a lawsuit against the Thai military for allegedly torturing national security suspects, and the case of Billy Porlajee Rakchongcharoen, a prominent indigenous Karen activist in Kaeng Krachan National Park who has recently been found brutally murdered inside the premise of Kaeng Krachan National Park. In these cases, no perpetrator has been brought to justice.
(4.) Torture and ill-treatment: Although Thailand is a State party to the CAT, there have been more than a hundred reports of torture against suspects in national security matters inside military camps in the SBPs. Thailand does not have a domestic law criminalizing torture, but there are legal provisions in the Criminal Code, such as the prohibition of arbitrary detention (Article 310), which may be used to prosecute the torturers. Still, again, not a single perpetrator has faced disciplinary actions or criminal lawsuits.
Furthermore, many victims of torture fall victim to judicial harassments for speaking out about their experiences. Instead of being plaintiffs who bring a lawsuit against the state official who committed torture, they became defendants for allegedly filing a ‘false’ police report or committing libel.
(5.) Transnational migrants: There are more than 2,500,000 – 3,000,000 transnational migrants in Thailand. Most of them are subjected to hazardous working conditions. When they try to speak out and call for justice, their employers used the law as a weapon to silence them. This tactic of suppression of freedom is called Strategic Lawsuit Against Public Participation (SLAPP).
(6.) SLAPP: Similar to the situation of transnational migrants, many HRDs in Thailand have been subjected to SLAPP for speaking out about injustices and human rights abuses. Years ago, the Internal Security Operations Center (ISOC) Region 4 has filed charges against Mr. Somchai, as well as Director of the Cross-Cultural Foundation Ms. Pornpen Khongkachonkiet and Director of Duay Jai Group Ms. Anchana Heemmina under the criminal defamation law and the Computer Crime Act for publishing stories about torture allegations in the SBPs. Although the charges against these three HRDs had been dropped, many State agencies and businesses are still pursuing such charges against other HRDs. The SLAPP tactics aimed at exhausting their time, resources, and energy. Indigenous people, impoverished forest residents, and other marginalized groups are even more vulnerable to falling prey to this ‘justice system.’
“We are all working hard. But our problem is we keep going around in a circle. We continue to do our work in the same way without thinking about the bigger picture and try to envision a new approach to reform our justice system,” stated Mr. Somchai. He observed that HRDs tend to place too much emphasis on their thematic area of work or specific cases, thereby ignoring the importance of upholding the principle of human rights and democracy and neglecting the larger goal of transforming our social structure of inequalities. In his experiences, he learned that some Thai labor union may not support the rights of transnational migrants and some human rights activists may still support the death penalty and torture, believing that they are effective means of preventing crimes.
“We need to have a wider perspective to fix the entire system,” Mr. Somchai said, “Now is high time we start expanding such a perspective. Human rights violations do not happen only in Thailand but across the region of Southeast Asia. This workshop is a good opportunity to learn from the experiences of one another, especially for issues that cross our borders.” He then ended his remarks by asking the participants to keep in mind four key crucial principles for ensuring the sustainability of human rights and justice in our region as follows:
In every case of human rights violations, no matter how big the scale of violation is, we need an objective process of seeking truths about what happened. Without truth, it is impossible to find solutions for the problems.
Often, States direct their attention, resources, and energy on searching for and punishing perpetrators. They often forget that victims of human rights violations should be the center of our work and, therefore, leave them unheard. Most of these victims need reparations- be it in the forms of financial compensation, psychosocial treatments and services, and state apologies- to feel like justice has been served.
The culture of impunity remains strong in Thai society. Prosecuting the perpetrators of human rights violations is a way of sending a message to the victims and the public that justice is serving them.
- Institutional Reform:
None of the above principles would matter without institutional reform. We need to change the ways our State institutions operate. Start now by reforming the curricula of military training and law schools, by promulgating laws that criminalize torture and enforced disappearance, and by mainstreaming the ideas of human rights into the outlook of law enforcement officers.
Without this process, we will continue to go around in a circle without achieving anything.
Panel discussion: Human Rights Based Access to Justice and the Rule of Law in Southeast Asia
After Mr. Somchai Homlaor delivered the opening remarks, the panel discussion on “Human Rights Based Access to Justice and the Rule of Law in Southeast Asia” followed. The panel featured panelists from many countries across Southeast Asia including Thailand, Malaysia, Myanmar, and the Philippines.
Charles Hector, Human rights lawyer, Malaysia
- Access to justice is not only about laws, police, judges, and courts. In other words, our discussions on access to justice should not be limited to matters related to official administrations of justice. Rather, it starts with the values we practice in our everyday life.
- Many forms of traditional justice still exist and function hand-in-hand with modern forms of administration of justice.
- The modern administration of justice includes laws, complaint mechanisms, enforcement (investigation and prosecution), judges and other dispensers of justice.
- Our concepts of rights and justice are constantly evolving and covering many more groups. Nowadays, marginalized groups, such as women, children, slaves, non-citizens, have more rights than before.
- As society evolves, many new models of rights have been developed. For instance, one’s right to land ownership takes on different forms under capitalism, socialism, and religious authoritarianism.
- At times, rights are neglected in the name of national security and other reasons.
- Sources of rights come from a wide range of documents produced at the local, national, community, regional, and international levels. For instance, “UN Declaration of Human Rights” “Islamic Declaration of Human Rights” (Cairo Declaration on Human Rights in Islam (CDHRI) “Malaysian Charter on Human Rights” and “ASEAN Human Rights Declaration.”
- Democracy shall not be conflated with human rights and justice. Minorities may be ignored and lack political representation even in democratic regimes. Moreover, migrants and stateless people are facing the most difficulties in terms of accessing justice mechanisms.
- Human rights defenders are now paid employees, so financial security can also subvert their upholding of justice without fear and favor.
- Donors are removing us of the liberty to mobilize- they can dictate what we do and do not do.
Access to justice should include the following rights:
- Right to highlight injustice/human rights violations,
- Right to have the relevant agency to speedily take action to ensure justice is done,
- Right to be free from threats and retaliatory actions from alleged violators or injustice perpetrators,
- Right to financial assistance by the government where the complainant and/or one party of a dispute have less/inadequate financial resources
- Rights to independent tribunal courts or decision-maker
- Right to appeal
Thet Swe Win, Synergy Burma
- In Myanmar, freedom of expression and association is often oppressed by the military. For instance, there was a recent crackdown on a protest in Northern Shan earlier this week.
- As of August 2019, there are 630 total political prisoners in Myanmar. 50 are serving prison sentences, 179 facing trial inside, and 401 facing trial outside.
- Perpetrators of violence, including Ashin Wirathu, the renowned Buddhist monk who incited hatred against Muslim and inspired the genocide in Rakhine, has never been brought to justice. The culture of impunity, therefore, characterizes the climate of the human rights situation in Myanmar.
- The Burmese military is now filing lawsuits under telecommunication law against many dissidents including activists, artists, civilians, new media, etc. The military also filed 24 complaints against 77 people while six complaints by the third party for criticizing the military.
- While international media tend to report stories about the Burmese military’s persecution of Rohingya communities, several Buddhists in Rakhine are facing human rights abuse as well. Many of them have been brutally tortured and murdered in detention.
Namtae Meeboonsang, Public prosecutor in Kanchanaburi province
– The rule of law could mean several things.
- International definition Equality before the law
- Thai definition Independence in the administration of justice
– Three key aspects of the rule of law include
- Human rights [During peace time]
- Humanitarian law [During wartime]
- Human dignity
Three phases of criminal justice system
There are several good practices outside Southeast Asia by which different States use to increase the effectiveness of the justice system
- Japanese Criminal Procedure Code’s Article 202:
- French Criminal Procedure Code’s Article 63
- Universal Declaration of Human Rights, Article 11(1)
Prosecutors must ensure that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. This is on the basis that indictment should only proceed when we are very sure that the person is guilty. If not, it will be a mere waste of state resources
- The Code for Crown Prosecutors, Para 2.4
Punishment should be proportionate and not determined by confessions or information obtained from tortured individuals.
- Universal Declaration of Human Rights, Article 5
- Brown v. Plata: The US Supreme Court ruled in 2011 that prison overcrowding in California violated inmates’ Eighth Amendment Rights.
- Reference: https://www.ncbi.nlm.nih.gov/pubmed/23233477
Pornpen Khongkachonkiet, Director of the Cross-Cultural Fonudation, Thailand
Access to Justice in Thailand: Experiences from Thailand
- In Thailand, official mechanisms of administration of justice do not mean ordinary people can access justice. Often, law enforcement and judiciary officers lack the proper awareness about the rule of law, human rights, and democracy. Ms. Pornpen also noted the asymmetrical relationship between the judges and ordinary people who have to be involved in court processes.
- Key human rights issues in Thailand concerning access to justice are:
- Impunity: No effective investigations on cases of torture, enforced disappearance, extrajudicial killings, and other types of state violence.
- No truth-seeking, no state apology, no reparation programs
- The use of military courts to prosecute civilians, especially political dissidents and marginalized peoples.
- In any attempt to prosecute perpetrators, victims or their family members often need to reach a demanding evidentiary threshold to initiate a criminal investigation. On the other hand, it is difficult to access other complaint mechanisms, such as the National Human Rights Commission of Thailand, the National Anti-Corruption Commission, the Department of Special Investigation, and the Office of the Ombudsman. These mechanisms also do not have any public accountability or transparency in their operations. Nonetheless, in light of the recent case of Billy Porlajee Rakchongcharoen, we may now have more hope for the Department of the Special Investigation and should try to engage more with this agency.
- As the Cross-Cultural Foundation has provided aid for many victims of torture, death in custody, and extrajudicial killings, we find that the Civil Court may have paid monetary compensation to the victims or their families. However, there is little to no attempt to prosecute the perpetrators.
- In the Southern Border Provinces of Thailand, the government has been enforcing special laws which allow the security forces to arrest and detain a person for up to 37 days without charge or warrant. During this period, we receive multiple complaints of torture inside military detention facilities. There is no effective truth-seeking process to clear up these allegations and therefore no prosecution. This is a crucial condition of the persistence of armed violence in the region.
- Accessible and effective legal aid
- Impartial forensic investigation
- Competent human rights lawyers
- Witness protection programs
- Trial observation by local and international observers
- Quality documentation
- Victim and community support
Roundtable discussion: Moving towards Police and Justice Reform
Speakers:- Pol. Col. Virute Siriswadibutra, H.E. Kasit Priomya, Charles Hector, Thinzar
Shunlei Yi, Atty. Marlon Manuel, Ng Shui Meng
1st speaker- Pol. Col. Dr Virute Siriswadibutra
- Thailand, like other nations, has a constitution in place to help respect human rights, but this is not always upheld. There are other issues with the Thai constitution as well, namely section 68- the state is bound to access to justice process, but this is not the same as access to justice. This has meant that around 40% of cases are dismissed by the courts.
- Another problem with the justice system is that it allows perpetrators of higher status or positions to go free until they can no longer be prosecuted. For example, the electronic monitoring device is only given to people with money who can bail themselves out.
- From 2004, onwards, the police have been in charge of investigations, with police organising the same way as the military, clouding the system and making the justice system non-independent
- While Ministerial regulation has been put in place to show the roles of the police, they are still not held to accountability. “Even though the police investigation can be done in good faith it still contains many flaws, e.g. how to talk to witnesses”
- People who report case to police, might not receive a case number- this means the investigation is not formally undertaken and the case can be dropped at any time by police
- There should be two sections of the police- one to take the complaints, the other to undertake the investigations
- The prime minister should not listen to false information about the police, he should listen to other people who will help make justice reform possible
- The public prosecutor should have access to the case from the beginning, such as the evidence and the witnesses
Comments made by other members:
- it should be up to the prosecutor whether to proceed with the case- the prosecutor needs to be able to send back the case to the police to gather more evidence.
2nd Speaker- Thinzar Shun lei Yi- Myanmar
Her organisation in Myanmar, has 12 members in the organisation in 9 regions. They focus
largely on freedom of expression. She is also an advisor for the EU in Myanmar since 2016.
- Justice is a key issue that many young people are focusing on around the world
- Anti-civil war protests since 2012- many people were killed, every year they charge peaceful and lawful protests, but police and military can arrest and charge protestors and can hold for 24 hours. Many young people are still facing charges after 6 months.
- EU is trying to help the police force with training, but the police in Myanmar remain the same.
- Police force is under military control. Other ministries under military control including the ministry of home affairs. This creates institutional challenges.
o More actions, not just discussions
o ASEAN, 30% are young regions- to not forget the role of young people in
reform, also make sure to approach young police to change mindsets and
make changes there
o Encourage respected organisations that fund and pressure current governments
o ASEAN nations to constantly communicate with international justice programs to share progress and problems, like today
o For organisations to continue to advocate against the use of torture and other issues within their own governments
o In relation to Myanmar, justice is being delayed, the right to justice in one ASEAN country could spread to justice throughout, and one countries struggle is a struggle for all
3rd Speaker- Charles Hector, Malaysia
- Mr. Hector and his team have submitted a document on that changes that need to take place for human rights to occur in Malaysia.
- The government and politicians are just ordinary people, and need to be educated on justice reform and be given complete suggestions
- Asking for reforms from the bottom up, judges need to be independently elected not appointed by government officials
Issues addressed in Malaysia
o Laws- detention without trial, unjust and Anti-human Rights Law
o Police- a lot death in custody and confession amendment in 2007- no person
can have a confession can be used against them in the court of law, defence
can use prosecutor cannot, naked searches of women and inquests into death
o Within 24 hrs of arrest, the person must be brought before magistrates, was a problem where police would apply for 14 days of remand, new law limits it to
no more than 4 days on first application of remand
o Watchdogs found that police were obscuring evidence
o Access to lawyers was a problem- now the law has been amended stating clearly the right to access of lawyers- all lawyers have immediate access to
their clients vice versa
o Judges- Judges at the high court, court of appeal and federal court were appointed by the King acting on the advice of the Prime Minister- need a separate body to appoint, also ‘security of tenure’ and ‘judges on probation’
- Attorney General/ Public prosecutor- in 2016 challenged the abuse of his powers- he cannot be allowed to decide if someone is innocent or guilty, only if there is or isn’t enough evidence to charge or not charge. Attorney general and public prosecutor should be different roles, not one person
- Malaysian bar, made up of 18,000 practicing lawyers
o Have been calling and acting for the abolition of laws that are anti-human rights and justice
o Work for free for people cannot afford lawyers, but also human rights cases
o Lawyers have a duty to society and not focused monetarily. Training young
lawyers to understand this concept
o Government retaliation on the Malaysian Bar, only lawyers serving 7 years or below cannot serve on the bar
Comments by other panelists-
In Thailand lawyers can be banned for speaking up about human rights. But this is not applicable in Malaysia, however they can be prevented from becoming judges. Some current judges and Attorney General in Malaysia have loudly voiced their concerns of human rights
4th Speaker- Ng Shui Meng from Singapore, lived in Laos for 30 years
Victim of human rights abuse, her husband was disappeared.
- Laos is one party common state, every state has its constitution and judicial system and rule of law and in theory this exists, the structures and institutions are there, but they don’t seem to work efficiently.
- Political systems of Laos are very non-transparent, lawyers and police are given orders and cannot asked questions
- Law for forced disappearance does not exist in Laos
- If something is considered a political case, it is not investigated there is no justice
- If they catch a perpetrator, they can still be released in 2 weeks, if they know how to bribe the police and work the system
- The general public in Laos, 1. believe rights are a privilege, you can have as many the government allows to you. 2. Don’t expect anything from the state or anyone in the system of governance or in justice system
5th Speaker- H.E. Kasit Priomya, ASEAN Parliamentary for Human Rights
- Military allows the use of intelligence and spies to find dissidents for other countries
- You cannot have human rights, in any authoritarian region. People do not have the right to question, they take orders and they have to carry them out. Police and military cannot be reformed under this regime in Thailand.
- Need to fight against any authoritarian government in the ASEAN region
- Police and armed forces in Thailand have a history of undermining the fight for human rights
- The people need to come together like in Malaysia where they brought down one of the most corrupt systems in the world. Until we have a free democratic society then the people will always be subject to the rules of the corrupt government
- Demand the dissemination of the military government
- Stop the police from harassing people who share opposing views
6th Speaker Atty. Marlon Manuel – from Cambodia
- There is a crackdown of independent media, NGO, CSO, human right advocacy groups in Cambodia
- In Cambodia they have suspended more than 100 parliamentary members in opposition party
- NGO leader was accused and sentenced, others have fled the country
- Freedom of expression, freedom of association- activists are fighting for the cause- around 100 fight the cause- 20 of which were detained in the prison
- Working together with international organisations to bring Democracy and Human
Rights to Cambodia