In 1997, during the drafting of the new Thai Constitution, some members of the Constitution Drafting Assembly (CDA) suggested that the CDA's mandate be extended in order to draft the organic laws that would give the Constitution meaning. The coalition government led by Chavalit Yongchaiyudh summarily dismissed the suggestion.
More than two years later, as the subsequent coalition government led by Chuan Leekpai faces accusations on several fronts that it is trying to pass organic laws which are inconsistent with the wording, spirit and intention of the Constitution, the suggestion seems prescient.
The most recent example is the conflict between the current government and groups in civil society over the establishment of a national human rights commission. After much conflict, the debate eventually boiled down to whether the Constitution mandates the establishment of a commission that is "independent". The National Human Rights Commission Act, which came into effect on 26 November 1999, was essentially a political compromise.
The impetus to create an independent national human rights commission in Thailand came in May 1992, when the military cracked down on massive pro-democracy demonstrations in the capital, Bangkok, resulting in at least fifty-two deaths, thirty-eight disappearances, and hundreds of injuries.
In September 1992, following lobbying by non-governmental organizations (NGOs), the Cabinet of Prime Minister Anand Panyarachun passed a resolution, which committed the government to set up a national mechanism for protecting and promoting human rights.
In 1995, the Public Prosecutor's Office circulated a draft law proposing a government-controlled human rights commission, with two-thirds of the commissioners being elected politicians and senior government officials, including the Prime Minister as the Chairperson. The draft law fell far short of international standards and it was never submitted to the Cabinet and Parliament.
After two years of uncertainty, and more lobbying by NGOs, the establishment of a national human rights commission was finally mandated in Articles 199 and 200 of the new Constitution which was adopted by the government in October 1997. Articles 199 and 200, which come under the National Assembly section of the Constitution (Chapter 6), are reproduced below:
The National Human Rights Commission shall consist of a Chairperson and ten other members, who are appointed by the King with the advice of the Senate from persons having knowledge and experience in the field of human rights protection, taking into consideration the inclusion of representatives of non-governmental human rights organizations.
The Speaker of the Senate shall countersign the royal appointment of the Chairperson and other members of the National Human Rights Commission
The qualifications, prohibitions, selection, election, removal, and determination of the remuneration of the members of the National Human Rights Commission shall be as provided by law.
The members of the National Human Rights Commission shall hold office for a term of six years as from the date of their appointment by the King and shall serve for only one term.
The National Human Rights Commission shall have the following powers and duties:
- 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 the person or agency committing or omitting such acts for action. In a case where it appears that no action has been taken as proposed, the Commission shall report to the National Assembly for further proceeding;
- to propose to the National Assembly and the Council of Ministers policies and recommendations with regard to the revision of laws, rules or regulations for the purpose of promoting and protecting human rights;
- to promote education, research and the dissemination of knowledge on human rights;
- to promote cooperation and coordination among government agencies, non-governmental organizations and other organizations in the field of human rights;
- to prepare an annual report which assesses the human rights situation in the country and submit it to the National Assembly;
- other powers and duties as provided by law.
In the performance of duties, the National Human Rights Commission shall also taken into consideration the interests of the country and the public.
The National Human Rights Commission has the power to demand relevant documents or evidence from any person and to summon any person to give statements of fact, and other powers for the purpose of performing its duties as provided by law.
Other relevant sections of the Constitution are Article 75 which states that the government shall allocate an "adequate budget" for the "independent administration" of the National Human Rights Commission, and Article 334 which states that the organic law establishing the Commission must be enacted by October 1999. Article 75 suggests that the commission should have some form of "independent" status.
The fact that the Commission is constitutionally-mandated, rather than simply the product of a statute, or even worse, an executive degree, means that once it is established, it will be very difficult for the government to abolish it or weaken its mandate significantly. Any such action would require a constitutional amendment, which would generate strong opposition from many sectors of society. Certain anti-reform elements in the government appeared to be aware of this and pushed-unsuccessfully-for an organic law that would establish a weak, government-controlled commission.
In April 1998, a government committee established under the Office of the Attorney-General began drafting the enabling legislation. The draft bill was completed in September and approved by the Cabinet in mid-October 1998. Civil society groups supported the bill, which would have established a strong, independent commission. It was then submitted to the Council of State (the Cabinet's legal advisory body), who has the power to revise legislation in order to ensure that it is legally sound.
In November, following lobbying by human rights organizations, the Prime Minister, Chuan Leekpai, set up a public hearings committee with a forty-five day life span. Six public hearings on the draft bill were held around the country in November and December. 1,380 people attended the hearings and 1,730 completed questionnaires were returned to the committee. The committee's report, which reiterated the call for a strong, independent commission, was then submitted to the Cabinet, who sent it to the Council of State to be incorporated into the bill.
In mid-February 1999, the Cabinet approved the bill for the second time. However, when the bill was disseminated, civil society groups were shocked to discover that, instead of revising the bill and incorporating the public hearings report, the Council of State had submitted a completely new bill, which provided for a weak, government-controlled commission. Most observers identified the move as a thinly veiled backlash by certain anti-reform-minded politicians and bureaucrats against the new Constitution.
Between February and October, as the bill proceeded to the House of Representatives and then the Senate, many provisions from the original bill were restored, but the coalition government took a fairly hard-line position that the Constitution does not mandate the establishment of an "independent" commission. Many politicians and bureaucrats wanted to place the Office of the Commission under the Office of the Prime Minister, while groups in civil society lobbied for the Office to be separate from the state but accountable to the National Assembly. After much negotiation and lobbying, a political compromise was reached (see below), and the Act that came into effect on 26 November 1999 was reluctantly supported by both the government and civil society groups.
The National Human Rights Commission Act will establish a commission that is too closely tied to the state, but there are protective safeguards in the law, which should allow it to act with a fair degree of independence.
(a) Legal independence and operational autonomy
In terms of legal status, the Commission will be too closely linked to the state. Under section 17, the Office of the Commission is defined as a "government agency attached to the National Assembly." As discussed below, the Office may face interference from the state in its hiring of staff.
Fortunately, there are protective safeguards in other parts of the Act, which should prevent the state from interfering with most functions of the commission. Section 17 states that the Chairperson of the Commission will supervise the Office of the Commission. In addition, section 4 gives the Chairperson charge and control of the execution of the Act and the power to issue regulations and notifications. Finally, section 9 states that the commissioners must perform their duties with "independence and impartiality."
(b) Financial autonomy
The Commission will have full control over its finances. Section 21 of the Act provides for the allocation of an adequate budget for the "independent administration" of the Commission.
With one exception, the Commission will probably receive its budget allocations without interference from government agencies. Section 21 states that the Office of the Commission shall submit an annual budget, through the Speaker of the National Assembly, to the Cabinet for consideration and inclusion in an appropriations bill. The legal requirement in section 21 that the budget be "adequate" coupled with the openness of the legislative process will limit the ability of government agencies to interfere with the allocation. However, as discussed below, because of certain provisions in the law, the hiring of staff is one area where the Office may face interference.
(c) Staffing autonomy
The Office of the Commission may face interference when it recruits staff. Section 19 of the Act states that the Chairperson of the Commission shall recruit staff for the office in accordance with laws and regulations governing the civil service staff of the National Assembly. These laws and regulations require the Commission to consult with the Civil Service Committee of the National Assembly, before it submits a budget to the Cabinet.
The Committee, which is directly responsible for providing funding to remunerate the staff of offices under the National Assembly, has its own interests, which may conflict with the interests of the Commission. For example, in order to have the most qualified staff possible, the Office of the Commission will undoubtedly want to hire staff from outside the civil service. However, in order to save money or "protect its own", the Committee may ask the office to accept the transfer of civil servants from other state agencies instead. Under such circumstances, the two sides would probably negotiate a settlement, but it would clearly compromise the Commission's ability to recruit its own staff.
(d) Independence through the appointment process
The Act, which precisely defines the qualifications of potential commissioners and disqualifies individuals who may be corrupt or have a conflict of interest, should produce well-qualified, independent-minded commissioners. Section 5 states that all the commissioners must have experience in the field of human rights protection. Sections 6 then sets out a list of qualifications and prohibitions, most of which are aimed at preventing individuals who are not independent-minded from being appointed. For example, persons who have been removed from their jobs because of corruption and politicians and members of political parties are disqualified.
The Act has a highly democratic appointment process. Section 8 states that the Selection Committee shall be composed of twenty-eight members: the Chief Justice of the Supreme Court, the Chief Justice of the Supreme Administrative Court, the Attorney General, the Chairperson of the Law Society, five representatives of tertiary education institutions, ten representatives of non-governmental human rights organizations, five representatives of political parties, three representatives of the media, and the Secretary-General of the Office of the Commission.
The Committee must submit a name list of twenty-two persons to the Senate, who will have a secret vote. The King will appoint as commissioners the eleven persons who receive the highest number of votes. The commissioners will then meet among themselves and elect a chairperson. The first set of commissioners will be selected in a slightly modified process set out in section 37 of the Act.
(e) Independence through composition
The Act is simultaneously positive, silent and negative in ensuring that the commissioners are reasonably representative of society. On the positive side, section 5 states that the selection process for the commissioners must take into consideration the inclusion of both men and women and representatives of non-governmental human rights organizations. On the silent side, there is no provision for the inclusion of members of ethnic, religious or other minority groups. And on the negative side, the list of qualifications and prohibitions in section 6 contains a number of blatantly discriminatory provisions. For example, the commissioners must have "Thai citizenship by birth" and cannot be under thirty-five years of age. (Emphasis added)
The Act is silent on the issue of diversity in the hiring of staff for the Office of the Commission, and, as described above, may be in danger of being stacked with civil servants.
(f) Independence through tenure
The Act will promote the independence of the Commission through tenure in two ways. First, section 10 states that the commissioners can only hold office for one, six-year term. In Thai society, where nepotism and corruption are endemic in public positions with long-term tenure, the one-term limit is seen as important in ensuring that commissioners will be independent-minded. Second, section 16 requires that the Chairperson and the other ten commissioners all work on a full-time basis. In other words, none of the commissioners will have other jobs that may affect their ability to act effectively and independently.
2. Jurisdiction and Powers
The Act clearly and precisely defines the Commission's jurisdiction and grants it adequate powers to carry out its responsibilities effectively, but it is not clear whether its proposed remedies will always be enforced.
(a) Clearly defined areas of jurisdiction
The Act clearly defines the Commission's areas of jurisdiction. Section 15 lists the Commission's powers and duties in accordance with Article 200 of the Constitution (see above).
(b) A broad mandate
The Act does not define "human rights" to the widest extent possible, but the definition is adequate, largely because of the liberal nature of the new Constitution and the fact that the Thai government has acceded to several key international human rights instruments.
Section 3 of the Act defines "human rights" as the human dignity, rights, liberty and equality of the people that are guaranteed or protected under the Thai Constitution, Thai laws or treaties which Thailand has an obligation to follow. The Constitution strongly guarantees and protects civil and political rights and to a lesser, but not insignificant, extent, economic, social and cultural rights. In addition, the government has acceded to the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and most recently, the International Covenant on Economic, Social and Cultural Rights.
(c) Conflicts over jurisdiction
The Act refers briefly to conflicts over jurisdiction. Section 22 states that the Commission cannot investigate complaints and propose remedies if the case is being litigated in court or a court has given a final order or judgment in the case. Section 25 provides that, where a complaint is not within its jurisdiction, the Commission must inform the petitioner without delay and may refer the matter to another agency.
In addition to the National Human Rights Commission, the new Constitution provides for the establishment of a number of other bodies, including a national counter corruption commission, ombudsmen, an administrative court system, and a constitutional court. Conflicts over jurisdiction are inevitable, particularly in the next few years, and will most likely be worked out in practice and through legal amendments.
(d) Enforceable powers
The Act gives the Commission clear powers to investigate, mediate, secure cooperation, and propose remedies, but it is not clear whether the remedies will always be enforced.
The Commission's power to investigate human rights violations are set out in sections 22-26 of the Act. Sections 23 and 24 set out the process for receiving a petition, either directly from a complainant or through an NGO. Section 25 states that, if there is a prima facie case, the Commission must notify the person or agency alleged to be the human rights violator and request a response within a specified period of time. Section 26 provides that when the period for response has elapsed, the Commission, or an appointed sub-committee, shall proceed with a formal investigation including factual inquiry and giving the parties an opportunity to present evidence.
The Commission's power to mediate is set out in section 27, which states that, during the investigation, the Commission can mediate between the parties and prepare a written agreement to settle the matter, if both parties agree to the solution and the commission determines that the agreement is within the scope of human rights protection.
The Commission's powers to ensure cooperation are set out sections 32-35. Section 32 gives the Commission the power to summon witnesses, compel the production of documents or other evidence, and obtain a warrant from a court to conduct on-site investigations. In addition, sections 34 and 35 mandate imprisonment or a fine or both for any person who refuses to comply with an order to appear as a witness or produce documents or other evidence, or resists or obstructs an on-site investigation.
Unfortunately, although the Commission has the power to propose remedies, it is not clear whether the remedies will always be enforced. Section 28 states that the Commission shall send the proposed remedial measures to the violator of human rights with a specified period for implementation. Section 30 provides that if the violator has not implemented the remedial measure within the specified time period, the Commission shall report to the Prime Minister to order implementation within sixty days. Section 31 provides that, where the remedial measures have not been implemented under Section 30, the Commission shall report the matter to the National Assembly for further proceeding and may disclose the case to the public.
Although remedial measure may be easily enforceable in simple cases involving relatively weak human rights violators, the lack of an explicit mechanism for enforcement or explicit penalties for non-compliance will almost certainly hinder enforcement in difficult cases involving powerful human rights violators.
The Commission may not be reasonably accessible to all victims of human rights violations, particularly victims from marginalized groups. Although section 23 provides that a complaint may be made orally or in writing and submitted at the Office of the Commission, through registered mail, to a commissioner, through a human rights NGO to be referred to the Office, or by any other methods prescribed by the Commission, there are no provisions in the Act for the establishment of branch offices around the country. The establishment of branch offices is crucial to increase awareness about the Commission, develop a credible reputation for the Commission, and provide accessibility to marginalized groups.
The requirement that the commissioners be of "Thai citizenship by birth" and the absence of positive measures in the selection process for the inclusion of candidates from ethnic, religious or other minority groups, will likely produce a commission without little or no representation from these groups. In addition, the centralization of the Office of the Commission in Bangkok and the inevitability of hiring civil servants to staff the Office will likely produce a staff with a similar lack of representation.
The problems associated with lack of representation should not be underestimated. Many hilltribe peoples, for example, are not Thai citizens by birth and very few live in Bangkok or work in the civil service. As a result, they are unlikely to be represented either on the Commission or in the staff of the Office. Although they are victims of some of the most serious human rights abuses in the country, they may be reluctant to approach a commission where they do not see themselves represented. Conversely, the Commission may not understand how to approach or develop proper relations with hilltribe communities.
The Act empowers the Commission to develop cooperative relationships with other organizations and groups in society. Section 16 states that the Commission has the power and duty to promote cooperation and coordination among government agencies, non-governmental organizations and other organizations in the field of human rights. In addition, section 18 states that the Office of the Commission has the power and duty to cooperate with the same groups. Finally, under section 24, non-governmental human rights organizations are empowered to file complaints to the Commission on their own initiative or on behalf of individuals.
The Commission will primarily be accountable through its annual report. Section 15 states that the Commission has the duty to assess and prepare an annual report of the performance of the Commission, which must be submitted to the National Assembly and disclosed to the public.
The Act also creates accountability through its dismissal process. Section 11 states that at least one-fourth of the members of the House of Representatives or the Senate may request that the Senate pass a resolution to remove a commissioner from office because of lack of regard for the interests of the country and the public, partiality in the performance of his or her duties, misconduct or immoral conduct that seriously affects the performance of his or her duties, conduct that violates human rights, or serious incompetence in the performance of his or her duties. To pass, the resolution must be approved by three-fifths of the members of the Senate.
This dismissal process may make commissioners more accountable, but it may also inhibit commissioners from taking up unpopular human rights causes.
The Thai National Human Rights Commission is expected to be up and running some time in 2000. In theory, the Commission should be able to function with sufficient independence to effectively protect and promote human rights. However, the real test will be whether the Commission can fulfill its role in practice, particularly in cases where the alleged violator is the Thai government or other powerful groups or individuals in Thai society.
 The National Assembly consists of the House of
Representatives and the Senate.
 The Thai government acceded to the International Covenant on Economic, Social and Cultural Rights on December 5, 1999.
Ken Bhattacharjee is a lawyer working with the
Coordinating Committee of Human Rights Organizations of Thailand.
E-mail address: email@example.com